Supporting the response to the HIV epidemic in Eastern and Southern Africa through the international human rights

framework

Supporting the response to HIV through human rights

AIM OF THE PRESENTATION To inform change agents, potential change agents and those involved in the business of law about: relevant human rights documents, the obligations that arise from them and the steps required for their implementation and to assist them in their response to HIV and AIDS.

Supporting the response to HIV through human rights

OVERVIEW OF THE PRESENTATION A. Introduction B. Background to international human rights law C. International human rights standards at three levels (global, regional, sub-regional) D. Domestication of international human rights law in Eastern and Southern Africa E. Conclusion and recommendations

Part A: Introduction

THE HIV EPIDEMIC

Introduction

Since 1981, HIV has rapidly become the most devastating epidemic of our time. 2006 UNAIDS epidemic update: - approximately 39.5 million people living with HIV in 2006. - 2.9 million people died of AIDS-related illnesses worldwide. Countries in Southern Africa continue to show exceptionally high levels of HIV incidence and prevalence.

HUMAN RIGHTS AND HIV

Introduction

The HIV epidemic has been viewed as a strongly gendered health, development and human rights issue. The HIV epidemic causes human rights violations and is also driven by human rights violations. The promotion and protection of human rights must therefore be at the centre of all aspects of an effective response to the epidemic.

This is known as a human rights-based approach.

WHAT IS A HUMAN RIGHTS-BASED APPROACH?

Introduction

It is one that focuses on empowering people (especially the most vulnerable and marginalised) with the knowledge and resources to understand and assert their rights. Simultaneously, it focuses on capacity building of dutyholders (government) to be able to protect and promote human rights.

HUMAN RIGHTS UNDER THREAT

Introduction

After 1996: ARVs and the resurgence of biomedicine. Call for a return to traditional public health response: - Routine testing - Compulsory disclosure / shared confidentiality

HUMAN RIGHTS NOT FULLY EXPLORED

Introduction

Failure to fully implement eg. VCT, access to treatment, education should not be equated to failure of human rights-based approach.

Despair leads to symbolic actions and HIL. Coercion will have very limited success. Individual autonomy is the basis of a human rightsbased approach.

Part B: Background to International Human Rights Law

WHAT ARE HUMAN RIGHTS?

Human rights

Human rights are universal - the birth right of all human beings. Human rights focus on the inherent dignity and equal worth of all human beings. All human rights are equal, indivisible and interdependent.

WHAT IS HUMAN RIGHTS LAW?

Human rights

A set of performance standards for duty-bearers at all levels of society, but especially organs of the state. It serves as a basis for accountability. It grants justiciable legal guarantees to every individual as a rights-holder. It is codified in international, regional and national legal systems.

JUSTICIABLE GUARANTEES
Human rights

Are legal entitlements. They may be invoked in a court of law. If violated, a court may order a remedy such as compensation.

HUMAN RIGHTS VIOLATIONS

Human rights

Undermine attempts to protect people from becoming HIV positive. Example: Women, and particularly young women, are more vulnerable to infection if they lack access to information, education and services necessary to ensure sexual and reproductive health and prevention of infection. Human rights violations due to societal conditions such as violence against women, lack of education, harmful cultural practices and restrictions on property and inheritance exacerbate inequalities.

HUMAN RIGHTS VIOLATIONS

Human rights

Prevent people living with HIV from receiving needed services. Example: If the existence of men who have sex with men (MSM) or sex workers is denied or criminalised, awareness and education programmes may not reach them.

LAW: A TOOL FOR SOCIAL CHANGE (eg. South Africa)

Human rights

Social engineering: Apartheid legislature was a tool in structuring society along racial lines. Social (re)engineering: After Apartheid, laws became a tool to restructure society, hence Affirmative Action, Black Economic Empowerment, and other transformative laws based on values of equality and human dignity.

HUMAN RIGHTS OBLIGATIONS OF STATE

Human rights

categories of obligations: Respecting a right means that a state must not violate a particular right. Protecting a right means that a state has to prevent violations of that right by non-state actors. Fulfilling a right means that a state has to take all appropriate measures, like allotting budgetary resources, to the realisation of that right. Promoting a right means that a state must educate the public and raise awareness about that right.

INTERNATIONAL HUMAN RIGHTS LAW SERVES AS:

Human rights

A beacon - pulling states towards accepting human rights. A safety net - to supplement the national legal system. A basis - to mobilise shame of the international community.

INTERNATIONAL HUMAN RIGHTS

Human rights

In the context of HIV and AIDS, an application of international human rights frameworks transforms the needs of the individual into entitlements and ensures that governments are accountable for their actions.

INTERNATIONAL HUMAN RIGHTS NORM

Human rights

Increasingly regarded as a defining element of a modern statehood. States need to engage in various processes before they accept international human rights treaties, as the treaties create obligations and states must be ready for them.

THE LINK BETWEEN INTERNATIONAL AND NATIONAL LAW

Human rights

HIV and AIDS are generally not mentioned by name, but many of the treaty provisions are of relevance. Treaties should also be read with the General Comments, adopted by the various treaty bodies.

DOMESTICATION
Human rights

The process that makes international commitments a reality in the national legal system of a country.

Benefits the people of that country. Brings national law in line with the standards of international law.

DOMESTICATION OF A TREATY
Human rights

Signature (state not bound to treaty provisions). Ratification / Accession (state becomes bound). Legislative conversion (enabling legislation). Implementation in practice.

OBLIGATIONS UNDER HUMAN RIGHTS TREATIES:

Human rights

States should: Domesticate treaties. Give effect to treaty provisions. Submit state reports to treaty bodies. Involve civil society.

MECHANISMS OF MONITORING
Human rights

Fulfillment of commitments to treaties is monitored by independent expert committees called treaty bodies.

EXAMINATION OF STATE REPORTS

Human rights

Independent external inspection by treaty body Concluding observations which Highlight positive and negative developments and Make recommendations which the state should implement.

INDIVIDUAL COMMUNICATIONS
Human rights

Generally optional: states must specifically accept this procedure before an individual can use it.

In some treaties such as the African Charter on Human and Peoples Rights, the individual communication mechanism applies automatically to all states parties.

Part C: International Human Rights Standards at Three Levels

THREE LEVELS OF INTERNATIONAL LAW

Standards

Global Regional Sub-regional

UN AU SADC, EAC, COMSA, IGAD

GLOBAL LEVEL
Standards: Global

UN TREATIES AND TREATY BODIES RELEVANT TO HIV AND AIDS

Standards: Global

International Covenant on Civil and Political Rights (ICCPR) 1966/1976. International Covenant on Economic, Social and Cultural Rights (ICESCR) 1966/1976. Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) 1979/1981. Convention on the Rights of the Child (CRC) 1989/1990. Website: www.ohchr.org

RELEVANCE OF UN HUMAN RIGHTS TREATIES TO HIV AND AIDS

Standards: Global

HIV and AIDS are not mentioned by name, but many of the treaty provisions are of relevance. Treaties should also be read with the General Comments, adopted by the various treaty bodies. Some General Comments deal with HIV-related issues.

ICCPR (examples of provisions relevant to HIV and AIDS)

Standards: Global

Right to life (art 6). Right to privacy (art 17). Right to non-discrimination and equality before the law (arts 2 & 14).

Right to liberty and security of the person (art 9). Right to free movement (art 12). Right to freedom of expression (art 19). Right to be free from torture and cruel treatment (art 7).

ICESCR (examples of provisions relevant to HIV and AIDS)

Standards: Global

Right to equality and non-discrimination (art 2). Right to work (art 6). Right to social security (art 9). Right to adequate standard of living, including food, clothing and housing (art 11).

Right to highest attainable standard of health (art 12). Right to enjoy the benefits of scientific progress (art 15(1)(b)).

Right to education (art 13).

CEDAW (examples of provisions relevant to HIV and AIDS)

Standards: Global

Right to equality and non-discrimination based on sex (arts 2 & 3).

States must modify and abolish laws, customs and practices that discriminate against women (art 2(f)).

Protection of women against trafficking and sexual exploitation (art 6).

Right to appropriate health care services including during pregnancy and postnatal period (art 12).

Non-discrimination in matters of marriage (art 16).

CRC (examples of provisions relevant to HIV and AIDS)

Standards: Global

Right to equality and non-discrimination (art 2). Protection against abuse, neglect and sexual exploitation (art 19).

Right to state assistance and protection for children deprived of family environment (art 20).

Right to the highest attainable standard of health (art 24)

Right to benefit from social security (art 26). Right to education (art 28).

EXAMPLE OF GENERAL COMMENTS

Standards: Global

General Comments are issued by treaty bodies to elaborate upon treaty provisions. Example: General Comment 3 on the Convention on the Rights of the Child: HIV/AIDS and the Rights of the Child Respect - no mandatory HIV testing. Protect - no exploitation of trial participants by pharmaceutical companies in HIV trials. Fulfill - make resources available to prevent HIV transmission from mother to child.

EXAMPLES OF CONCLUDING OBSERVATIONS

Standards: Global

Example 1: Concluding Observations of the Committee on Economic, Social and Cultural Rights - Zambia (UN Doc E/C.12/1/Add.106)

EXAMPLES OF CONCLUDING OBSERVATIONS

Standards: Global

The Committee is deeply concerned that the extent of extreme poverty in the state party has negatively affected the enjoyment of economic, social and cultural rights as enshrined in the Covenant, especially by the most disadvantaged and marginalised groups, including girlchildren and those affected by HIV/AIDS... ...the Committee is deeply concerned about the high incidence of child-headed households, a phenomenon that is linked to the HIV/AIDS pandemic, and which negatively impacts on childrens access to education...

EXAMPLES OF CONCLUDING OBSERVATIONS

Standards: Global

The Committee recommends that the state party intensify its efforts to control the spread of HIV/AIDS, including by strengthening the policy of both providing and encouraging the use of condoms. The Committee also recommends that the state party continue with its prevention and care efforts in the field of health by providing sexual and reproductive health services, particularly to women and young people.

EXAMPLES OF CONCLUDING OBSERVATIONS

Standards: Global

Example 2: Committee on the Rights of the Child Concluding Observations: second periodic report of the Republic of Mauritius, 2006

EXAMPLES OF CONCLUDING OBSERVATIONS

Standards: Global

The Committee recommends that the state party integrate respect for the rights of the child into the development and implementation of its HIV/AIDS policies and strategies, taking into account its general comment No. 3 (2003) on HIV/AIDS and the rights of the child.

INTERNATIONAL GUIDELINES ON HIV/AIDS AND HUMAN RIGHTS (not strictly legally binding, but persuasive)
Standards: Global

Guideline 1: States should adopt multi-sectoral approaches to establish an effective national framework for the response to the HIV epidemic. Guideline 2: States should enable community organisations to carry out activities in the field of ethics, human rights and law. States should also consult widely with such organisations in drafting all HIV policies.

INTERNATIONAL GUIDELINES ON HIV/AIDS AND HUMAN RIGHTS (not strictly legally binding, but persuasive)
Standards: Global

Guideline 5: States should enact or strengthen antidiscrimination laws to protect vulnerable groups. States should also ensure privacy, confidentiality and ethical behaviour in research involving human subjects.

INTERNATIONAL GUIDELINES ON HIV/AIDS AND HUMAN RIGHTS (not strictly legally binding, but persuasive)
Standards: Global

Guideline 6 (revised): States should enact legislation to provide for the regulation of HIV-related goods, services and information in order to ensure widespread availability of quality prevention measures and services, adequate HIV prevention and care information, and safe and effective medication at an affordable price. States should ensure that all persons have access to quality goods on a sustained and equal basis.

INTERNATIONAL GUIDELINES ON HIV/AIDS AND HUMAN RIGHTS (not strictly legally binding, but persuasive)
Standards: Global

Guideline 7: States should implement legal support services to educate people who are affected by the HIV epidemic about their rights. States should also develop expertise on HIV-related legal issues and use means other than courts, such as human rights commissions, to protect the rights of people who are affected by the epidemic. Guideline 9: States should promote the distribution of creative education, training and media programmes that are designed to change discriminatory attitudes associated with HIV and AIDS to reflect greater understanding and acceptance.

INTERNATIONAL GUIDELINES ON HIV/AIDS AND HUMAN RIGHTS (not strictly legally binding, but persuasive)
Standards: Global

Guideline 10: States should translate human rights principles into codes of conduct, which should be accompanied by mechanisms to implement and enforce these codes. Guideline 11: States should ensure monitoring and enforcement mechanisms to guarantee and protect HIVrelated human rights.

UN MILLENNIUM DEVELOPMENT GOALS

Standards: Global

Goal 6: States must halt and begin to reverse the spread of HIV by 2015.

UN DECLARATION OF COMMITMENT ON HIV/AIDS

Standards: Global

Contains a checklist with questions concerning national compliance with the MDGs. For instance, countries have to adopt laws and regulations that protect against discrimination of people living with HIV, and laws and regulations that protect against discrimination of people identified as being especially vulnerable to HIV/AIDS.

INTERNATIONAL LABOUR ORGANISATION (ILO)

Standards: Global

The ILO, a specialised agency of the UN seeks to promote decent conditions of work and internationally recognised human and labour rights. All the states included in Eastern and Southern Africa are members of the ILO.

ILO CONVENTIONS AND DOCUMENTS MOST RELEVANT TO HIV AND AIDS

Standards: Global

Discrimination (Employment and Occupation) Convention, 1958 (No. 111)

Occupational Safety and Health Convention, 1981 (No. 155)

ILO Code of Practice on HIV/AIDS and the World of Work (2001)

WORLD TRADE ORGANISATION (WTO)

Standards: Global

Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) Flexibilities allow: Compulsory licensing (permits local manufacture or importation of patented medicines without the authorisation of patent holder) Parallel importation (permits importation of patented medicines that are sold in another country at a better price)

REGIONAL LEVEL
Standards: Regional

AFRICAN UNION (AU) HUMAN RIGHTS INSTRUMENTS

Standards: Regional

African Charter on Human and Peoples Rights (1981/1986) Protocol (to African Charter) on the Rights of Women in Africa (2003/2005) African Charter on the Rights and Welfare of the Child (African Childrens Charter) (1990/1999)

Full texts and status of ratification: www.africa-union.org

AFRICAN CHARTER ON HUMAN AND PEOPLES RIGHTS

Standards: Regional

Right to non-discrimination and equality before the law (arts 2 & 3).

Right to life (art 4). Right to dignity (art 5). Right to liberty and security of the person (art 6). Right to work (art 15). Right to health (art 16). Right to education (art 17).

PROTOCOL ON THE RIGHTS OF WOMEN IN AFRICA

Standards: Regional

Prohibition of discrimination against women (art 2). Right to dignity (art 3). Elimination of harmful practices (art 5). Equal rights in marriage (art 6). Health and reproductive rights (art 14). Right to inheritance (art 21).

PROTOCOL ON THE RIGHTS OF WOMEN IN AFRICA ARTICLE 14: HEALTH AND REPRODUCTIVE RIGHTS
Standards: Regional

1. States parties shall ensure that the right to health of women, including sexual and reproductive health is respected and promoted. This includes: (a) the right to control their fertility; (b) the right to decide whether to have children; the number of children and the spacing of the children; (c) the right to choose any method of contraception (d) the right to self-protection and to be protected against sexually transmitted infections, including HIV/AIDS.

AFRICAN CHILDRENS CHARTER

Standards: Regional

Right to non-discrimination (art 3). Right to education (art 11). Right to health, including obligation of government to reduce child mortality (art 14).

Protection against harmful practices including child marriages (art 21).

Right to special protection and assistance for children deprived of family environment (art 25).

AU DECLARATIONS
Standards: Regional

Abuja Declaration, 2001: 15% of government budget to be devoted to healthcare.

Africas Common Position to the UN General Assembly Special Session on AIDS, 2006: 80% ARV coverage by 2010.

NEPAD AND APRM

Standards: Regional

Scrutiny by peers. Direct reference to HIV and AIDS in, for example, the Rwanda Country Review Report.

SUB-REGIONAL LEVEL
Standards: Sub-regional

COMMON MARKET FOR EASTERN AND SOUTHERN AFRICA (COMESA)

Standards: Sub-regional

COMESA Treaty: States undertake to cooperate in respect of health.

Gender Policy (2005): AIDS and human rights should be mainstreamed into gender programmes.

EAST AFRICAN COMMUNITY (EAC)

Standards: Sub-regional

EAC Treaty, article 118: States undertake to prevent and control HIV and AIDS East African Integration Diseases Surveillance Network (EIDSNet) Regional HIV and AIDS Strategic Plan 2007-2012 (2007)

SOUTHERN AFRICAN DEVELOPMENT COMMUNITY (SADC)

Standards: Sub-regional

SADC Treaty Article 5(1): The objectives of SADC shall be to: (a) promote sustainable and equitable economic growth and socio-economic development that will ensure poverty alleviation with the ultimate objective of its eradication, enhance the standard and quality of life of the people of Southern Africa and support the socially disadvantaged through regional integration; (b) consolidate, defend and maintain democracy, peace, security and stability; (e) achieve complementarity between national and regional strategies and programmes;

SOUTHERN AFRICAN DEVELOPMENT COMMUNITY (SADC)

Standards: Sub-regional

SADC Treaty Article 5(4): The objectives of SADC shall be to: (f) combat HIV/AIDS and other deadly or communicable diseases; (k) mainstream gender in the process of community building.

OTHER SADC INSTRUMENTS

Standards: Sub-regional

Maseru Declaration on HIV and AIDS (2003) SADC Code on HIV/AIDS and Employment (1997) HIV and AIDS Strategic Framework (2003 - 2007)

INTER-GOVERNMENTAL AUTHORITY FOR DEVELOPMENT (IGAD)

Standards: Sub-regional

IGAD Agreement Article 7(a): The aims and objectives of the Authority shall be to: a) Promote joint development strategies and gradually harmonise programmes in the social and strategic fields Declaration of Ministers in charge of HIV/AIDS (2007)

Part D: Domestication of International Human Rights Laws

RELATIONSHIP BETWEEN INTERNATIONAL AND NATIONAL LAW

Domestication

Domestication

Dualism

Monism

DUALISM
Domestication

Example: Article 111(b) of the Constitution of Zimbabwe: (a) Except as otherwise provided by this Constitution or by or under an Act of Parliament, any convention, treaty or agreement acceded to, concluded or executed by or under authority of the President with one or more foreign states or governments or international organisations (...) (b) shall not form part of the law of Zimbabwe unless it has been incorporated into the law by or under an Act of Parliament.

EXAMPLE OF ENABLING LEGISLATION

Domestication

Nigeria is the only dualist country in Africa that has made the African Charter part of national law through the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act.

MONISM
Domestication

Example: Article 9(4) of the Constitution of Ethiopia: All international agreements ratified by Ethiopia are an integral part of the law of the land.

SELF-EXECUTING TREATY PROVISIONS

Domestication

Treaty provisions that courts may apply as they are provided for in an international treaty without any domestication of that provision.

B. ANTI-DISCRIMINATION
Domestication

Burundi: Law 1/018 (2005) on the Legal Protection of People Living with HIV creates an obligation on public authorities to respond to HIV-related discrimination.

C. PROPERTY AND INHERITANCE

Domestication

Botswana: Abolition of Marital Power Act 34 of 2004 provides for equal power of spouses who are married in community of property.

Lesotho: Legal Capacity of Married Persons Act of 2006 provides for equality of spouses in respect to the disposal of assets.

D. CUSTOMARY PRACTICES
Domestication

Eritrea: Female Circumcision Abolition Proclamation 158 of 2007. Uganda: Domestic Relations Bill of 2003 prohibits female genital mutilation and criminalises widow inheritance.

E. DOMESTIC VIOLENCE
Domestication

South Africa: Prevention of Family Violence Act 133 of 1993 (section 5): Notwithstanding anything to the contrary contained in any law or in the common law, a husband may be convicted of the rape of his wife.

F. CHILDRENS PROTECTION
Domestication

Kenya: Childrens Act of 2001 guarantees free primary school education, criminalises forced marriages and female genital cutting. Malawi: Child (Care, Protection and Justice) Bill (2005) provides for child care and protection, improves the protection for orphans and vulnerable children.

G. VULNERABLE GROUPS
Domestication

Protocol to the African Charter on the Rights of Women in Africa, article 6: States Parties shall ensure that women and men enjoy equal rights and are regarded as equal partners in marriage. They shall enact appropriate national legislative measures to guarantee that: no marriage shall take place without the free and full consent of both parties; the minimum age of marriage for women will be 18 years...

G. VULNERABLE GROUPS
Domestication

Djibouti: Law 48 of 1999 gives children, mothers, the physically handicapped, victims of natural disasters, and vulnerable groups generally, the right to state assistance in matters of health.

G. VULNERABLE GROUPS: LACK OF PROTECTIVE MEASURES

Domestication

Prisoners Often denied access to condoms and HIV treatment. Intravenous Drug Users (IDUs) Needle and syringe exchange often not provided in order to avoid aiding and abetting a crime. Refugees, Asylum Seekers and Undocumented Migrants Often have no access to health care and social security.

H. SOCIO-ECONOMIC RIGHTS (IN LEGISLATION)

Domestication

Kenya: HIV and AIDS Prevention Control Act 14 of 2006 (art 19(2)) binds the government to take reasonable steps to ensure access to treatment at affordable prices. Angola: Law 8/04 on HIV and AIDS of 2004 sets guarantees for public health care and confidentiality in the health care system.

I. DISCLOSURE OF STATUS
Domestication

It seems that international law accepts that a medical officer may disclose a patients HIV status to someone who clearly is at an immediate risk of HIV transmission under strict conditions. This position is, for example, set out in ethical guidelines of the South African medical profession. For proper regulation of disclosure of HIV status, see International Guidelines on HIV/AIDS and Human Rights, Guidelines 3(g), p 28.

J. CRIMINAL LAW
Domestication

International Guideline 4: States should review and reform criminal laws and correctional systems to ensure that they are consistent with international human rights obligations and are not misused in the context of HIV/AIDS.

J. CRIMINAL LAW: Tanzania

Domestication

HIV and AIDS (Prevention and Control) Bill 2007 of Tanzania, Section 47: Any person who willfully and intentionally transmit HIV to another person commits an offence, and upon conviction shall be liable to life imprisonment.

J. CRIMINAL LAW: KENYA

Domestication

Kenya Sexual Offences Act 2006: Deliberate HIV transmission: offence, minimum sentence of 15 years Rape survivors: free medical care and access to PostExposure Prophylaxis (PEP) and counselling

J. CRIMINAL LAW: PROBLEMS OF CRIMINALISATION

Domestication

Not frequently used, largely symbolic government seen to be doing something! Criminalisation provisions are generally overbroad and badly drafted For example, in rape cases: focus should be on rape victim (immediate access to PEP) and NOT on the HIV status of perpetrator. For guidelines on drafting criminalisation provisions, see UNAIDS (2002) Criminal law, public health and HIV transmission: A policy options paper pp 39-40 or also art 27 of HIV Control Bill 2007 of Uganda.

3. LEGISLATION
Domestication

While it is crucial to focus on the employment and criminal spheres, legislation concerning HIV and AIDS should also look at the root causes driving the epidemic, such as gender inequality and poverty.

4. JUDGMENTS/CASE LAW
Domestication

Judges should rely on international treaties as interpretive tools to respond to HIV by taking judicial notice of treaties when dealing with HIV and AIDS-related cases.

4. JUDGMENTS/CASE LAW
Domestication

Example: Hoffman v SAA (South Africa, 2000): an HIV positive applicant was refused a job as cabin attendant for South African Airways (SAA). The SA Constitutional Court found that this amounted to unfair discrimination, and ordered SAA to employ the applicant. The Constitutional Court also prohibited pre-employment testing for HIV.

4. JUDGMENTS/CASE LAW
Domestication

Example: Minister of Health and Others v TAC and Others (South Africa, 2002): The South African government had a very limited programme to provide Nevirapine in order to prevent HIV transmission from mother to child. The Constitutional Court of South Africa found in favour of the TAC and decided that the government should make the treatment available to all pregnant mothers who need it.

4. JUDGMENTS/CASE LAW
Domestication

Example: NM and Others v Smith and Others (South Africa, 2007): The Constitutional Court found that the author and publisher violated a the right to privacy of several women by revealing their HIV status in a book. They were required to compensate the victims of the violation.

4. JUDGMENTS/CASE LAW
Domestication

Example: EN and Others v Government of the RSA and Others (South Africa, 2006): The High Court found that the governments delay in delivering ARV treatment to a number of prisoners amounted to a violation of the Constitution.

4. JUDGMENTS/CASE LAW
Domestication

Examples: Nanditume v Minister of Defence (Namibia, 2000): The Namibia Labour Court found that the exclusion of HIV positive soldiers from the armed forces was unconstitutional. Midwa v Midwa (Kenya, 2000): The Kenya Court of Appeal decided that a husband could not treat his wife in a degrading manner on the basis of her HIV status.

4. JUDGMENTS/CASE LAW
Domestication

Example: Jimson v Botswana Building Society (Botswana, 2003): As a result of the case, the plaintiff - who was required, by her employer, to undergo an HIV test - was reinstated to her position at the Botswana Building Society and received four months salary as compensation.

5. INSTITUTIONS
Domestication

National institutions coordinating national responses to HIV and AIDS (such as National AIDS Councils) should not only be established, but should also function effectively.

6. EDUCATION, SENSITISATION AND PARTNERSHIPS

Domestication

For example: The Treatment Action Campaign (TAC) in South Africa The AIDS Support Organisation (TASO) in Uganda

7. LEGAL CAPITAL: BEYOND LEGISLATION TO IMPLEMENTATION

Domestication

States should ensure: Awareness and knowledge of rights Access to lawyers and legal services - legal aid and paralegals That standing (locus standi) is not a hurdle A functioning police investigation and court system An independent judiciary That delays in court processes are reduced

6. TRIPS FLEXIBILITIES
Domestication

Declaration of medical emergency Parallel importation Compulsory licensing

6. TRIPS FLEXIBILITIES
Domestication

Few states have made use of flexibilities, for example: Mozambique: Industrial Property Code, approved by Decree No. 18/99 of May 4

6. TRIPS FLEXIBILITIES
Domestication

Compulsory Licensing No. 01/M10/04 (Mozambique): (...) considering that antiretroviral drugs are readily available, and that until now, the international patent owners have failed to make such drugs accessible at affordable prices to most of the Mozambican people, (...) the Ministry of Commerce and Industry, making use of the provision of the Decree of 4 May, has decided to grant the company Pharco Mozambique Lda, which has already presented a project for local manufacture of the mentioned triple compound under the names PHARCOVIR 30 and PHARCOVIR 40. (...) The Government of Mozambique reserves the right to review this compulsory license in case the conditions in which it was issued are changed.

Part E: Conclusions and Recommendations

CONCLUSIONS
Conclusions & recommendations

HIV and AIDS have exposed pre-existing human rights violations, stigma and inequalities in the region. Addressing human rights violations, stigma and gender inequality will both address the immediate problem of HIV/AIDS, but also the long-standing inferiority of women.

AIDS can leave us with a more equal, just and tolerant society - if we focus on human rights and the schisms that exist.

CONCLUSIONS
Conclusions & recommendations

International law has an important role to play in this quest provided that international law becomes part of national law

CONCLUSIONS
Conclusions & recommendations

Sustained improvement of domestic human rights conditions requires the domestication of international norms so that norm compliance becomes a commonly accepted practice.

RECOMMENDATIONS: STATES IN THE REGION SHOULD

Conclusions & recommendations

RATIFY all the mentioned UN, AU and sub-regional treaties ACCEPT the OPTIONAL COMPLAINTS mechanism to allow for individuals complaints SUBMIT their state reports regularly DOMESTICATE the treaty norm by adopting LAWS and programmes in line with treaty provisions ENSURE that the laws are made accessible through information campaigns and legal aid MAINSTREAM womens equality: Womens equality should be part of all national laws, policies and programmes dealing with HIV and AIDS.

OTHER RELEVANT TOOLS

Conclusions & recommendations

For more information and assistance, make use of other UNDP tools: Guide to an effective human rights response to the HIV epidemic Checklist: Human rights obligations to effectively address HIV and AIDS in Eastern and Southern Africa. Compendium of key documents on human rights and the HIV epidemic in Eastern and Southern Africa. CD-Rom documents on human rights and the HIV epidemic in Eastern and Southern Africa.

How to get hold of the tools

For more information, or to obtain copies of any of the tools, please contact: Shivaji Bhattacharya, Senior Policy Advisor, UNDP Email: shivaji.bhattacharya@undp.org or United Nations Development Programme Regional Services Centre 7 Naivasha Road Sunninghill 2157 Johannesburg South Africa Tel: +27 11 603 5000