Human rights protected? Nine Southern African country reports on HIV, AIDS and the law

Aids, Human Rights Research Unit

Description

As its title indicates, Human rights protected? Nine Southern African country reports on HIV, AIDS and the law charts the extent to which human rights are protected in the legal systems of the Southern African states with very high HIV prevalence rates. These countries are Botswana, Lesotho, Malawi, Mozam-bique, Namibia, South Africa, Swaziland, Zambia and Zimbabwe. Issues that are covered in the publication include access to health care, privacy, non-discrimination, labour rights, women's rights, children's rights, prisoners’ rights and the government's oversight function.Human rights protected? Nine Southern African country reports on HIV, AIDS and the law, undertaken by researchers based at or associated with the AIDS and Human Rights Research Unit, an initiative of the Centre for the Study of AIDS (CSA) and the Centre for Human Rights, University of Pretoria, updates a similar study completed in 2002.Open Society Initiative for Southern African (OSISA) supported the research and publication of this study. OSISA also supported the accompanying publication, Human rights under threat: Four perspectives on HIV, AIDS and the law in Southern Africa, in which four topical themes (wilful HIV transmission, routine testing, access to condoms in prisons and the use of TRIPS flexibilities) are addressed.About the Editors:The AIDS and Human Rights Research Unit (AHRRU) is a collaboration between the Centre for the Study of AIDS (CSA) and the Centre for Human Rights at the University of Pretoria.

Sujets

• Droit
• JUSTICE

Informations

• Publié par: PULP (Pretoria University Law Press)
• Date de parution: 01 janvier 2007
• Nombre de lectures: 0
• EAN13: 9780980265873
• Langue: English
• Poids de l'ouvrage: 2 Mo

Extrait

HUMAN RIGHTS PROTECTED? NINE SOUTHERN AFRICAN COUNTRY REPORTS ON HIV, AIDS AND THE LAW

AIDS and Human Rights Research Unit

2007

Human rights protected? Nine Southern African country reports on HIV, AIDS and the law

Published by:

Pretoria University Law Press (PULP)

The Pretoria University Law Press (PULP) is a publisher at the Faculty of Law, University of Pretoria, South Africa. PULP endeavours to publish and make available innovative, high-quality scholarly texts on law in Africa that have been peer-reviewed. PULP also publishes a series of collections of legal documents related to public law in Africa, as well as text books from African countries other than South Africa.

For more information on PULP, see www.pulp.up.ac.za

Printed and bound by: ABC Press Cape Town

Cover design: Yolanda Booyzen, Centre for Human Rights

To order, contact: PULP Faculty of Law University of Pretoria South Africa 0002 Tel: [phone] Fax: [phone] [e-mail] www.pulp.up.ac.za

ISBN: 978-0-9802658-7-3

The financial support of OSISA is gratefully acknowledged.

© 2007 Copyright subsists in this work. It may be reproduced only with permission from the AIDS and Human Rights Research Unit, University of Pretoria.

PREFACE

Table of contents

LIST OF FREQUENTLY USED ACRONYMS AND ABBREVIATIONS 1 HIV, AIDS and the law in Botswana 2 HIV, AIDS and the law inLesotho 3 HIV, AIDS and the law inMalawi 4 HIV, AIDS and the law inMozambique HIV, AIDS and the law inNamibia 5 6 HIV, AIDS and the law in South Africa 7 HIV, AIDS and the law in Swaziland 8 HIV, AIDS and the law in Zambia 9 HIV, AIDS and the law in Zimbabwe

ANNEXURE: NGOs BY COUNTRY

INFORMATION ON THE AIDS AND HUMAN RIGHTS RESEARCH UNIT

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Preface

Human rights protected? Nine Southern African country reports on HIV, AIDS and the law builds onHIV/AIDS and human rights in Southern Africa, an analysis of the situation of HIV, AIDS and human rights in Southern Africa, undertaken by the Centre for the Study of 1 AIDS (CSA) in 2002. The present publication takes these reports further by expanding the countries examined, updating the reports, and amending them to incorporate country-specific information on the four debates presented inHuman rights under threat: Four perspectives on HIV, AIDS and the law in Southern Africa, an accompanying publication by the AIDS and Human Rights Research Unit (Unit) of the CSA and the Centre for Human Rights (CHR). The four issues of particular concern with respect to the protection of human rights, which were incorporated into these updated reports are: the criminalisation of the wilful transmission of HIV; routine testing; the restriction of prisoners’ access to prevention and treatment; and the limitations on access to HIV and AIDS-related medicines.

In order to update the existing reports, researchers were identified from existing networks in each of the nine countries under discussion. A questionnaire was developed by the Unit, which was used by the researchers in order to guide the research and to ensure consistency in the nature of information gathered. The responses were then collated by the Unit and are published here. As far as possible, the updated reports set out the position of HIV, AIDS and the law in the respective countries as of 31 July 2007. This report may be read in conjunction with the AIDS and Rights Alliance of Southern Africa (ARASA) research reportHIV/AIDS and human rights in SADC: An evaluation of the steps taken by countries within the SADC region to implement the International Guidelines on HIV/AIDS and Human Rights, released at the end of 2006 (see http://www.arasa.info). The ARASA report is broader in its regional scope, as it focuses on all 14 SADC countries, but also narrower in its substantive ambit, as it limits 2 itself to theInternational Guidelines.

South African judge and HIV activist, Edwin Cameron, noted that the role of the law in a public health crisis should be ‘to contain the 3 epidemic and to mitigate its impact’. In other words, he states, the law ‘should aim to save the uninfected from infection and to protect 4 the infected from the unjust consequences of public panic’. Is the law offering this kind of protection in the face of the HIV epidemic? Acknowledging that the most effective way to ensure the protection of human rights is to enshrine international norms in national constitutions and national legislation, this publication examines this

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See http://www.csa.za.org See also A Strode and B Grant ‘A critical review of the extent to which the HIV/ AIDS and Human Riglopment Community’ (2007)Obiter70. E Cameron ‘Using the law in the HIV pandemic: sword or shield’ Lecture at Birkbeck College, London 28 June 2007 http://www.nat.org.uk/document/307 (accessed 30 August 2007). As above.

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question with respect to nine Southern African countries: Botswana, Lesotho, Malawi, Namibia, Mozambique, South Africa, Swaziland, Zambia and Zimbabwe. While the findings note that these countries are by no means ignoring the epidemic and the many human rights threats and violations that accompany it, the response tends to be focused at policy rather than legislation.

The information presented in the reports is comprehensive, covering, for example, a general background on each country, international human rights law, case law, HIV and AIDS policy, the rights of vulnerable groups, and criminal law. Common threads emerge with respect to the nine countries in the form of weaknesses or gaps in the response to the epidemic in terms of human rights. As was hypothesised at the conceptualisation of the publication, some of these trends have proven to correspond and support the debates mentioned above and presented inHuman rights under threat: Four perspectives on HIV, AIDS and the law in Southern Africa.

For example, with respect to prisoners’ rights and HIV and AIDS, a debate explored in the above-mentioned publication, the reports reveal that only South Africa, Lesotho and Mozambique distribute condoms in prisons – at least in theory or from time to time. In the other countries surveyed, condoms are not made available to prisoners so as not to encourage sexual relations between men, a crime in all the countries but South Africa. In most of the cases, prisoners do not have access to ARVs administered in the prisons at government expense and where such is provided for, there is a conflict between policy and practice. For example, in South Africa, failure to implement legislation related to the provision of ART forced 15 inmates of the Westville prison in Durban and the Treatment Action Campaign to take legal action against the prison and the South African government in order to demand access to ART.

Another common thread uncovered in the reports is inadequate legal protection afforded to women and a subsequent failure to address one of the root causes of the HIV epidemic. While in all of the countries examined equality on the basis of sex is enshrined in the Constitution, customary law exists and, in some cases, takes precedence over the constitutional provision of equality. The reports also refer to the many customary practices that are still respected and which can potentially contribute to the spread of HIV, such as polygamy, wife inheritance, widow cleansing, and child marriage. Reflective of a gross underestimation of the link between domestic violence and HIV transmission, less than half of the countries (Malawi, Zimbabwe, Namibia, and South Africa) have specific legislation prohibiting domestic violence. Enacting domestic violence legislation should be a priority in the response to the pandemic.

A striking feature of the reports is the discordance between policy, legislation, and practice. In all of the countries, AIDS policies exist, alongside policies relating to testing, treatment, and orphans and other vulnerable children, for example. In many cases, these policies have been clearly influenced by the International Guidelines on HIV/AIDS and Human Rights. The policies, while commendable and demonstrative of political recognition of the severity of the epidemic and the threat to human rights that it presents, lack mechanisms for

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accountability and as such, in certain respects, rather pay lip service to action. While policy development is a necessary step in addressing the epidemic, it can often give the impression that political will is greater than what the situation on the ground presents. For example, pre- and post-test counselling features in all testing policies and guidelines yet in practice it is rarely carried out effectively, if at all.

On the other hand, the reports show a need for increased legislation specific to HIV and AIDS which would not only complement existing policies but provide for strengthened government accountability whereby victims of human rights violations in the face of the epidemic are empowered to seek legal redress for injustices incurred. Through dissemination to both civil society and policy makers, it is hoped thatHuman rights protected?Nine Southern African country reports on HIV, AIDS and the lawwill serve as a tool to assist those involved in advocacy as well as government stakeholders to agitate for legislation towards increased human rights protection in the context of the HIV pandemic. The Unit gratefully acknowledges the following authors of, and contributors to, the reports:  Susan Precious, co-author of the South Africa report  Mianko Ramaroson, co-author of the South Africa report  Rofiah Ololade Sarumi, author of the Lesotho report  Patrick Eba, author of the Malawi report  Christele Diwouta, author of the Namibia report and co-author of the Zambia report  Leopoldo Amaral, co-author of the Mozambique report  Hye-Young Lim, co-author of the Mozambique report and author of the Botswana report  Matthew Splitek, author of the Swaziland report and co-author of the Zimbabwe report  Sabelo Gumedze, co-author of the Zimbabwe report, and contributor to the Swaziland report  Kristen Hughes, co-author of the Zambia report  Ngaitila Phiri, author of and contributor to the Zambia report  Nyasha Chingore, editor of the Zimbabwe report  EK Quansah, contributor to the Botswana report Further acknowledgements are made to the following persons who have reviewed and edited the reports for content and style: Farhana Zuberi, Annelize Nienaber, Hye-Young Lim, Alaric Vandenberghe, Matthew Van Onselen, Susan Precious, Patrick Eba, Karen Stefiszyn, Omayma Sawaed, and Frans Viljoen. Magnus Kilander provided all the ratification tables with the assistance of Soo Ryun Kwon, Matthew Splitek and Kristen Hughes. The publication was finalised for printing by Lizette Besaans and the cover design is by Yolanda Booyzen. In addition, appreciation is extended to Mary Crewe, Pierre Brouard and Rakgadi Mohlahlane for their support of the Unit and of this particular project.

This publication was made possible through the generous support of the Open Society Initiative for Southern Africa (OSISA).

September 2007

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List of frequently used acronyms and abbreviations

AIDS ACHPR AHRLR ART ARV CD4 CEDAW

CRC FGM HIV HTC ICCPR ICESCR

IEC IGBRIHS

MDG NAC NGO NHRI NTTC OSISA PLHA PEP PMTCT PSI STD STI TB TRIPS UNAIDS UNGASS

UNICEF UHT VCT WHO WTO

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- -

- - - - - - - - - - - - - - - -

- - - - -

Acquired Immunodeficiency Syndrome African Charter on Human and Peoples’ Rights African Human Rights Law Reports Anti-retroviral treatment Anti-retroviral Cluster of differentiation 4 Convention on the Elimination of all forms of Discrimination against Women Convention on the Rights of the Child Female genital mutilation Human Immunodeficiency Virus HIV testing and counselling International Covenant on Civil and Political Rights International Covenant on Economic, Social and Cultural Rights Information Education Communication International Guidelines for Biomedical Research Involving Human Subjects Millennium Development Goals National AIDS Commission Non-Governmental Organisation National Human Rights Institution National Teachers Training College Open Society Initiative for Southern Africa People living with HIV and AIDS Post-exposure prophylaxis Prevention of Mother-to-Child-Transmission Population Service International Sexually transmitted disease Sexually transmitted infection Tuberculosis Trade-Related Aspects of Intellectual Property Rights Joint United Nations Programme on HIV/AIDS United Nations General Assembly Special Session on HIV/ AIDS United Nations Children’s Education Fund Universal HIV testing Voluntary Counselling and Testing World Health Organisation World Trade Organisation

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HIV, AIDS and the law in Botswana

Background to country 1.1 First AIDS case 1.2 Demography International human rights treaties 2.1 Ratification status of international human rights treaties 2.2 State reports AU and SADC treaties

3.1 Ratification status of AU and SADC treaties 3.2 State reports 3.3 Status of international and human rights treaties in domestic law 3.4 International Guidelines National legal system of country 4.1 Form of government 4.2 Legal system 4.3 Constitution and Bill of Rights 4.4 National human rights institutions Government regulation of HIV and AIDS: overall picture

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Responsible department HIV and AIDS plan Legislation HIV and AIDS policy Court decisions

Access to health care 6.1 Government regulation of access to health care 6.2 Ethical guidelines 6.3 Medicines 6.4 Condoms 6.5 Case law

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Privacy 7.1 Notifiable disease 7.2 Medical experimentation 7.3 Duty to disclose 7.4 Testing Equality and non-discrimination

Labour rights 9.1 Legislation 9.2 Testing 9.3 Medical schemes act 9.4 Duty to provide treatment Women’s rights 10.1 Legal status and protection 10.2 Domestic violence law 10.3 Customary rules and practices 10.4 Administration of anti-retrovirals to rape survivors 10.5 Sex workers Children’s rights

11.1 Access to health care 11.2 Children orphaned by AIDS 11.3 Education 12. Family law 13. Criminal law 13.1 Criminal legislation 13.2 Men having sex with men 14. Prisoners’ rights 15. Immigration 16. Social assistance and other government benefits 17. Insurance 18. Oversight 19. Stigma Bibliography

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Background to country

First AIDS case

Chapter 1 3

Doctors at the Princess Marina Hospital in Gaborone documented the 1 first AIDS case in 1985. The patient was infected with HIV through sexual intercourse. The information was treated confidentially without revealing the identity of the person.

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Demography

The total population of Botswana is estimated to be 1 800 000 in 2 2007. UNAIDS estimates the national HIV prevalence rate among 3 adults aged 15 to 49 at 24.1 per cent. According to the 2005 Botswana HIV/AIDS Sentinel Surveillance Technical Report based on the Botswana AIDS Impact Survey 2004 (BAIS II), the prevalence rate among women aged 15 to 19 is 17.8 per cent and 30.6 per cent for 4 women aged 20 to 24. The national prevalence rate gathered through BAIS II is much lower than the UNAIDS estimate at 17.1 per cent (19.8 per cent females and 13.9 per cent males) of the population aged 18 5 months to 64 years. The discrepancy may be attributed to the method of data collection; UNAIDS based its findings on sentinel surveillance studies on pregnant women attending antenatal clinics, while the BAIS II is a household survey designed to test a sample of the 6 general population. 7 There are approximately 270 000 people living with HIV. The rate of infection is higher for females than for males. Among 260 000 8 adults aged 15 and over living with HIV, 140 000 are women. Among adult females (aged 25 - 29) the prevalence rate is 40.8 per cent whereas adult males of the same age range have a prevalence rate of

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National Policy on HIV/AIDS (1998) 2; also see PA Watson (ed)The front line in the war against HIV/AIDS in Botswana: Case studies from the African Comprehensive HIV/AIDS Partnership http://www.achap.org/downloads/War per cent20Against per cent20HIV_Aids.pdf (accessed 1 August 2006) 6. UNFPAState of the world population 2007: Unleashing the potential of urban growth(2007) 90. UNAIDS ‘2006 Report on the global AIDS epidemic: A UNAIDS 10th anniversary special edition’(2006) 506. T Smart ‘Prevalence among young women in Botswana falls to lowest level since early 1990s, but still high’AIDSmap news 28 September 2006 http:// www.aidsmap.com/en/news/F9AEAA98-D76B-49D0-BCE7-37B081FC2979.asp (accessed 22 January 2007). National AIDS Coordinating Agency (NACA) & Central Statistics Office (CSO) Botswana AIDS Impact Studies II (BAIS II) 2004(2005). As above, xviii. As above. As above.