AFRICAN COMMISSION ON
HUMAN & PEOPLES’ RIGHTS
H I V, T H E L AW A N D H U M A N R I G H T S I N
T H E A F R I C A N H U M A N R I G H T S SYS T E M :
KEY CHALLENGES AND OPPORTUNITIES
FOR RIGHTS-BASED RESPONSES
Report on the Study of the African Commission
on Human and Peoples’ Rights
Report on the Study of the African Commission on Human and Peoples’ Rights
AFRICAN COMMISSION ON
HUMAN & PEOPLES’ RIGHTS
H I V, T H E L AW A N D H U M A N R I G H T S I N
T H E A F R I C A N H U M A N R I G H T S SYS T E M :
KEY CHALLENGES AND OPPORTUNITIES
FOR RIGHTS-BASED RESPONSES
Report on the Study of the African Commission
on Human and Peoples’ Rights
p.
ii
Report on the Study of the African Commission on Human and Peoples’ Rights
TA B L E O F C O N T E N T S
Table of contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . p. iii
Abbreviations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . p. vii
Definitions of key concepts and terms relating to HIV . . . . . . . . . . . . . . . . . p. ix
Acknowledgements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . p. xii
Message from the UNAIDS Executive Director . . . . . . . . . . . . . . . . . . . . p. xiii
Foreword from the Chairperson of the African Commission
on Human and Peoples’ Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . p. xiv
Executive summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . p. 1
Key findings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
p. 2
› G lobal and regional human rights frameworks contain
solid foundations for the protection of human rights in relation to HIV . . . . . . . . . . . . . . . . . . . p. 2
› G
ood practices on the protection of HIV-related
human rights across the continent must be expanded . . . . . . . . . . . . . . . . . . . . . . . . . . . . p. 3
› L
e gal and policy advances at the national, sub-re gional and re gional le vels . . . . . . . . . . . . . . . . . . . . . . p. 3
› A
dvancing HIV-related rights through the courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . p. 5
› P
rog rammes to advance human rights in the HIV response . . . . . . . . . . . . . . . . . . . . . . . . . . . . . p. 5
› T he engagement of the African regional human rights system
remains limited in efforts to advance HIV-related human rights . . . . . . . . . . . . . . . . . . . . . . . p. 6
› H IV-related human rights violations represent a serious concer n in Africa . . . . . . . . . . . . . . . . . . p. 7
Recommendations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . p. 12
I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
p. 16
General background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . p. 16
Process and methodology of this study . . . . . . . . . . . . . . . . . . . . . . . . p. 17
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Report on the Study of the African Commission on Human and Peoples’ Rights
II. The HIV epidemic in Africa . . . . . . . . . . . . . . . . . . . . . . . . . . . .
p. 20
Diverse burden of the HIV epidemic . . . . . . . . . . . . . . . . . . . . . . . . .
p. 20
Important but unequal progress . . . . . . . . . . . . . . . . . . . . . . . . . . .
p. 20
Populations left behind in the response to the HIV epidemic . . . . . . . . . . . . . p. 23
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
p. 26
III. Global and African regional human rights norms relating to HIV . . . . . . . .
p. 27
The right to health . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
p. 30
› U N human rights standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . p. 30
› A
frican human rights standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . p. 32
The right to be free from discrimination . . . . . . . . . . . . . . . . . . . . . . .
p. 34
› U N human rights standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . p. 35
› A
frican human rights standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . p. 35
The rights to liberty and privacy . . . . . . . . . . . . . . . . . . . . . . . . . . .
p. 38
› U N human rights standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . p. 38
› A
frican human rights standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . p. 40
The right to life . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . p. 41
› U N human rights standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . p. 42
› A
frican human rights standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . p. 42
The right to be free from torture and
other cruel, inhuman and degrading treatment . . . . . . . . . . . . . . . . . . . . p. 44
› U N human rights standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . p. 44
› A
frican human rights standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . p. 45
Freedoms of expression, association and assembly . . . . . . . . . . . . . . . . . . p. 45
› U N human rights standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . p. 45
› A
frican human rights standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . p. 47
The right to freedom of movement . . . . . . . . . . . . . . . . . . . . . . . . . . p. 48
The right to marry and to found a family . . . . . . . . . . . . . . . . . . . . . . . p.49
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Report on the Study of the African Commission on Human and Peoples’ Rights
The right to enjoy the benefits of scientific progress and its applications . . . . . . p. 49
The right to food . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
p. 50
The right to housing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
p. 51
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
p. 52
IV. The practice of the African regional human rights system on HIV . . . . . . . . p. 53
The African Commission and the HIV epidemic
. . . . . . . . . . . . . . . . . . .
p. 53
› H IV-related resolutions of the African Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . p. 54
› C
ase law of the African Commission with relevance to HIV . . . . . . . . . . . . . . . . . . . . . . . . p. 54
› S
tate reporting and HIV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . p. 56
HIV within subsidiary organs of the African Commission . . . . . . . . . . . . . . . p. 57
The HIV Committee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . p. 59
› M andate and composition of the HIV Committee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . p. 59
› A
ctivities of the HIV Committee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . p. 59
HIV related issues and other African regional human rights bodies . . . . . . . . .
p. 60
› A CERWC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . p. 60
› T
he African Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . p. 62
Conclusion
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . p. 62
V. Key human rights concerns and good practices in the HIV response in Africa .
Inequality and discrimination towards people living with HIV
p. 66
. . . . . . . . . . . . p. 67
Compulsory and other forms of coerced HIV testing . . . . . . . . . . . . . . . . . p. 69
Challenges to access to treatment, including
restrictive intellectual property regimes . . . . . . . . . . . . . . . . . . . . . . . p. 71
Overly broad criminalisation of HIV
non-disclosure, exposure and transmission . . . . . . . . . . . . . . . . . . . . . . p. 73
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Report on the Study of the African Commission on Human and Peoples’ Rights
Civil society space and HIV
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . p. 75
Conflict and HIV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . p. 77
The funding crisis and its impact on human rights issues and civil society
. . . . .
p. 78
Women and girls . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . p. 78
› G ender inequality in family and personal law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . p. 79
› V
iolence against women . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . p. 80
› S
exual and reproductive health and rights of women living with HIV . . . . . . . . . . . . . . . . . . . p. 80
› H
ar mful cultural practices and beliefs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . p. 81
Children and adolescents
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
p. 82
Persons with disabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
p. 85
Indigenous persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . p. 85
Migrants, refugees and internally displaced persons . . . . . . . . . . . . . . . . . p. 86
Key populations in need of specific protection and
access to HIV and health services . . . . . . . . . . . . . . . . . . . . . . . . . . . p. 87
› G ay men and other men who have sex with men . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . p. 87
› T
ransgender people . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . p. 89
› S
ex workers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . p. 90
› P
eople who use drugs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . p. 91
› P
risoners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . p. 91
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
p. 92
VI. Conclusions and recommendations . . . . . . . . . . . . . . . . . . . . . . . . p. 93
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
p. 93
Recommendations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . p. 95
Annex: Indicative questions and issues on HIV for
State periodic reporting under Article 62 of the African Charter . . . . . . . . . . p. 99
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Report on the Study of the African Commission on Human and Peoples’ Rights
A B B R E V I AT I O N S
ACERWC
African Committee of Experts on the Rights and
Welfare of the Child
African Charter
African Charter on Human and Peoples’ Rights
African Children’s Charter
African Charter on the Rights and
Welfare of the Child
African Commission
African Commission on Human and
Peoples’ Rights
African Court
African Court on Human and Peoples’ Rights
CEDAW Committee
Committee on the Elimination of
Discrimination against Women
Committee on ESCR
The Committee on Economic, Social and
Cultural Rights
CRC
Convention on the Rights of the Child
Doha Declaration
Doha Declaration on the TRIPS Agreement and
Public Health
EAC
East African Community
FGM
female genital mutilation
p.
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GALZ
Gays and Lesbians of Zimbabwe
HIV Committee
Committee on the Protection of the Rights of People
Living with HIV (PLHIV) and Those at Risk, Vulnerable
to and Affected by HIV
ICASA
International Conference on AIDS and STIs in Africa
ICCPR
International Covenant on Civil and Political Rights
ICESCR
International Covenant on Economic,
Social and Cultural Rights
IP
intellectual property
LEGABIBO
The Lesbians, Gays and Bisexuals of Botswana
LGBTI
lesbian, gay, bisexual, transgender and
intersex people
NSPs
national strategic plans on HIV
OAU
Organisation of African Unity
OHCHR
Office of the United Nations High Commissioner
for Human Rights
Report on the Study of the African Commission on Human and Peoples’ Rights
PITC
provider-initiated testing and counselling
UN
United Nations
PMTCT
prevention of mother-to-child transmission
UNAIDS
Joint United Nations Programme on HIV/AIDS
SADC
Southern African Development Community
UNGASS
United Nations General Assembly Special Session
STI
sexually transmitted infection
UNICEF
United Nations Children’s Fund
TAC
Treatment Action Campaign
WHO
World Health Organization
TB
tuberculosis
WTO
World Trade Organization
TRIPS Agreement
Agreement on Trade-Related Aspects of Intellectual
Property Rights
ZARAN
Zambian AIDS Law Research and Advocacy Network
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Report on the Study of the African Commission on Human and Peoples’ Rights
DEFINITION OF KEY CONCEPTS AND
T E R M S R E L AT I N G TO H I V 1
Acquired immunodeficiency syndrome (AIDS)
AIDS is a term that applies to the most advanced stages
of HIV infection. It is defined by the occurrence of one or
more of the HIV-related opportunistic infections or cancers.
AIDSinfo
AIDSinfo is a data visualization and dissemination tool
intended to facilitate the use of AIDS-related data, both
within individual countries and globally. AIDSinfo is
populated with multi-sectoral HIV data from a range of
sources, including Measure DHS, UNAIDS, UNICEF
and WHO.
Antiretroviral medicines/antiretrovirals
(ARVs)/antiretroviral therapy (ART)/ HIV
treatment
Antiretroviral therapy is highly active in suppressing
viral replication, reducing the amount of the virus in the
blood to undetectable levels and slowing the progress of
HIV disease. The usual antiretroviral therapy regimen
combines three or more different medicines, such as two
nucleoside reverse transcriptase inhibitors (NRTI) and
a protease inhibitor, two nucleoside analogue reverse
transcriptase inhibitors and a non-nucleoside reverse
transcriptase inhibitor (NNRTI), or other combinations.
More recently, entry inhibitors and integrase inhibitors
have joined the range of treatment options. Suboptimal
regimens are monotherapy and dual therapy.
Bisexual person
A bisexual person is defined as a person who is attracted
to and/or has sex with both men and women, and who
identifies with this as a cultural identity.
Epidemic
An epidemic refers to a disease condition affecting (or
tending to affect) a disproportionately large number of
individuals within a population, community or region
at the same time. An epidemic may be restricted to
one locale (an outbreak), or it may be more general (an
1
p.
ix
epidemic) or global (a pandemic). Common diseases
that occur at a constant but relatively high rate in the
population are said to be endemic.
Gay
The term “gay” can refer to same-sex sexual attraction,
same-sex sexual behaviour and same-sex cultural identity.
Gender identity
Gender identity reflects a deeply felt and experienced sense
of one’s own gender. A person’s gender identity typically
corresponds with the sex assigned to them at birth.
Harm reduction
The term “harm reduction” refers to a comprehensive
package of policies, programmes and approaches that
seeks to reduce the harmful health, social and economic
consequences associated with the use of psychoactive
substances. The elements in the package are the following:
needle–syringe programmes; opioid substitution therapy;
HIV testing and counselling; HIV care and antiretroviral
therapy for people who inject drugs; prevention of sexual
transmission; outreach (which includes information,
education and communication for people who inject
drugs and their sexual partners); viral hepatitis diagnosis,
treatment and vaccination (where applicable); and
tuberculosis prevention, diagnosis and treatment.
Human immunodeficiency virus (HIV)
HIV infects cells of the immune system, destroying or
impairing their function. Infection with the virus results
in progressive deterioration of the immune system,
leading to “immune deficiency.”
Homophobia and transphobia
Homophobia is an irrational fear, hatred or aversion
towards lesbian, gay or bisexual people. Transphobia
denotes an irrational fear, hatred or aversion towards
transgender people.
- These definitions were adapted from the following sources: Ending Violence and
Other Human Rights Violations Based on Sexual Orientation and Gender Identity:
centre-news-a-events-2016/1617-african-commission-launches-joint-report-on-sexual-
A Joint Dialogue of the African Commission on Human and Peoples’ Rights,
orientation-and-gender-identity-.html; and UNAIDS, UNAIDS Terminology Guidelines
Inter-American Commission on Human Rights and United Nations (Pretoria, South
(Geneva: UNAIDS, 2015), http://www.unaids.org/sites/default/files/media_asset/2015_
Africa: Pretoria University Law Press, 2016), http://www.chr.up.ac.za/index.php/
terminology_guidelines_en.pdf.
Report on the Study of the African Commission on Human and Peoples’ Rights
Intersex
An intersex person is born with sexual anatomy,
reproductive organs, and/or chromosome patterns that
do not fit the typical definition of male or female. This
may be apparent at birth or become so later in life. An
intersex person may identify as male, female, both or
neither. Intersex status is not about sexual orientation
or gender identity: intersex people experience the same
range of sexual orientations and gender identities as nonintersex people. Intersex people suffer specific human
rights violations based on their sexual characteristics.
Key populations
Gay men and other men who have sex with men, sex
workers and their clients, transgender people, people
who inject drugs, and prisoners and other incarcerated
people are considered the main key population groups.
These populations often suffer from punitive laws or
stigmatizing policies, and they are among those most
likely to be exposed to HIV. Their engagement is critical
to a successful HIV response everywhere—they are key
to the epidemic and key to the response.
Lesbian
A lesbian is a woman attracted to other women. She may
or may not be having sex with women, and a woman
having sex with women may or may not be a lesbian.
The term “women who have sex with women” should be
used unless individuals or groups self-identify as lesbians.
LGBT
LGBT stands for the terms “lesbian, gay, bisexual and
transgender.” While these terms have increasing global
resonance, other terms may be used to describe people who
are attracted to persons of the same sex and those who have
non-binary gender identities. Some examples include hijra,
meti, lala, skesana, motsoalle, mithli, kuchu, kawein, travesty,
muxé, fa’afafine, fakaleiti, hamjensgara and Two-Spirit. In a
human rights context, lesbian, gay, bisexual and transgender
people face both common and distinct challenges.
Men who have sex with men
Men who have sex with men are males who have sex with
males, regardless of whether or not they also have sex
with women or have a personal or social gay or bisexual
identity. This concept is useful because it also includes
men who self-identify as heterosexual but who have sex
with other men.
Mother-to-child transmission (MTCT)
MTCT is the abbreviation for mother-to-child transmission.
PMTCT, the abbreviation for prevention of motherto-child transmission, refers to a four-prong strategy for
stopping new HIV infections among children and keeping
their mothers alive and families healthy. The four prongs
are: helping reproductive-age women avoid HIV (Prong
1); reducing unmet need for family planning (Prong 2);
providing antiretroviral medicine prophylaxis to prevent
HIV transmission during pregnancy, labour and delivery,
and breastfeeding (Prong 3); and providing care, treatment
and support for mothers and their families (Prong 4).
Multidrug-resistant tuberculosis (MDR-TB)
MDR-TB is a specific form of drug-resistant tuberculosis,
caused by a bacillus that is resistant to at least isoniazid
and rifampicin, the two drugs that form the backbone of
standard anti-tuberculosis treatment.
Opioid substitution treatment
or therapy (OST)
Opioid substitution therapy is the recommended form of
drug dependence treatment for people who are dependent
on opioids. It has proved effective in the treatment of opioid
dependence, in the prevention of HIV transmission and in
the improvement of adherence to antiretroviral therapy.
The most common drugs used in opioid substitution
therapy are methadone and buprenorphine.
Opportunistic infection
Opportunistic infections are infections caused by various
organisms, many of which usually do not cause disease
in persons with healthy immune systems. Persons living
with advanced HIV infection may have opportunistic
infections of the lungs, brain, eyes and other organs. In
many countries, tuberculosis is the leading HIV-related
opportunistic infection.
Post-exposure prophylaxis (PEP)
Post-exposure prophylaxis refers to antiretroviral
medicines that are taken after exposure (or possible
exposure) to HIV. The exposure may be occupational
(e.g. a needlestick injury) or non-occupational (e.g.
condomless sex with a seropositive partner).
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Report on the Study of the African Commission on Human and Peoples’ Rights
Pre-exposure prophylaxis (PrEP)
Pre-exposure prophylaxis (PrEP) refers to antiretroviral
medicines prescribed before exposure (or possible exposure)
to HIV. Several studies have demonstrated that a daily oral
dose of appropriate antiretroviral medicines is effective in
both men and women for reducing the risk of acquiring
HIV infection through sexual or injection transmission.
Prevalence
Usually given as a percentage, HIV prevalence quantifies
the proportion of individuals in a population who
are living with HIV at a specific point in time. HIV
prevalence also can refer to the number of people living
with HIV. UNAIDS normally reports HIV prevalence
among people aged 15–49 years.
Sex worker
Sex workers include female, male and transgender
adults (18 years of age and above) who receive money
or goods in exchange for sexual services, either regularly
or occasionally. It is important to note that sex work
is consensual sex between adults, which takes many
forms and varies between and within countries and
communities. Sex work may vary in the degree to which
it is more or less formal or organised. Since sex work
is defined as the consensual sale of sex between adults,
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xi
children (people under 18 years) cannot be involved
in sex work. Instead, children involved in sex work are
considered to be victims of sexual exploitation.
Sexual orientation
Sexual orientation refers to a person’s physical, romantic
and/or emotional attraction to other people. Everyone has
a sexual orientation, which is integral to a person’s identity.
Stigma
Stigma is derived from a Greek word meaning a mark
or stain, and it refers to beliefs and/or attitudes. Stigma
can be described as a dynamic process of devaluation
that significantly discredits an individual in the eyes of
others, such as when certain attributes are seized upon
within particular cultures or settings and defined as
discreditable or unworthy.
Transgender
Transgender (sometimes shortened to “trans”) is an
umbrella term used to describe a wide range of identities—
including transsexual people, cross-dressers (sometimes
referred to as “transvestites”), people who identify as third
gender, and others whose appearance and characteristics
do not correspond with the sex they were assigned at birth
or are considered to be gender atypical.
Report on the Study of the African Commission on Human and Peoples’ Rights
AC K N OW L E D G E M E N T S
The development of this report was made possible by the
engagement and technical and financial contributions of
key partners of the African Commission on Human and
Peoples’ Rights (African Commission) and the Committee
on the Protection of the Rights of People Living With
HIV (PLHIV) and Those at Risk, Vulnerable to and
Affected by HIV (HIV Committee): the Joint United
Nations Programme on HIV/AIDS (UNAIDS), African
Men for Sexual Health and Rights (AMSHeR) and the
AIDS and Rights Alliance for Southern Africa (ARASA).
We also acknowledge the support of the Southern
African Litigation Centre (SALC) and the Eastern and
Southern African Regional Think Tank on HIV, Health
and Social Justice.
Expert members of the HIV Committee played key roles
in coordinating the development and writing of this
report with the support of consultants. The UN Special
Rapporteur on the Right of Everyone to the Enjoyment
of the Highest Attainable Standard of Physical and
Mental Health provided written comments to an earlier
draft of the study. Inputs were also received from the
United Nations Development Programme (UNDP).
The development of the report benefitted from the
involvement and input of civil society organisations,
particularly people living with, affected by and at risk of
HIV from all regions of the continent. Their testimonies,
experiences and perspectives were a reminder of the urgent
need to advance rights-based responses to HIV in Africa.
Finally, dialogues with HIV programme implementers,
representatives of national AIDS bodies, medical experts,
members of parliament and members of the judiciary
brought deep insight and expertise that informed this report.
The engagement of these representatives of all branches of
governments from several African States is acknowledged.
The African Commission is grateful to all these individuals
and institutions for their diverse contributions, which
made this report possible.
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Report on the Study of the African Commission on Human and Peoples’ Rights
M E S S AG E F R O M T H E U N A I D S
E X E C U T I V E D I R E C TO R
The history and current
reality of the HIV epidemic
globally and in Africa
illustrate the importance of
the law and human rights in
the context of global health.
A critical lesson from the
past 35 years of the HIV
response is that the protection
of human rights—including
for those most vulnerable
to HIV, such as women and
girls, young people, prisoners,
sex workers, transgender persons, gay men, men who have
sex with men, and people who inject drugs—is essential for
an effective response to HIV. A thriving civil society that is
empowered to demand, support and monitor progress on
HIV policies and programmes is a pre-condition to advances
against the epidemic.
Rights-based approaches and community involvement
have enabled great progress against the epidemic in the
continent. Antiretroviral therapy, which was once declared
impractical in Africa, was available to 13.8 million people on
the continent in 2016. Significant reductions in deaths from
AIDS-related illness were recorded in many countries in the
region between 2005 and 2016. In certain countries, the
coverage of services to prevent mother-to-child transmission
of HIV is above 95%.
Despite these achievements, stigma, discrimination, gender
inequality, violence and other human rights violations
continue to make people vulnerable to the epidemic and
hinder access to HIV services. AIDS activists and civil
society organisations that were critical to successes to date
are increasingly confronted by laws, policies and practices
that create barriers to their registration, operations, activities
and funding. These challenges occur at a time when
African countries have committed to the bold visions of
the Sustainable Development Goals, Agenda 2063, and of
ending the AIDS epidemic as a public health threat by 2030.
There is no better entity to address the legal, human rights
and social justice challenges raised by the HIV epidemic
than the African Commission on Human and Peoples’
Rights, which has a broad mandate for the promotion and
protection of human rights in Africa.
The present study is a significant contribution to efforts
to advance rights-based responses to HIV in Africa and
globally. UNAIDS is privileged to have contributed to this
report, and we look forward to working with the African
Commission, States, civil society and other partners to
promote this study and support the implementation of its
recommendations, which constitute a milestone in our
efforts to end the AIDS epidemic as a public health threat
by 2030 and to leave no one behind.
MICHEL SIDIBÉ
Executive Director, Joint United Nations Programme on
HIV/AIDS
Under-Secretary-General of the United Nations
p. xiii
Report on the Study of the African Commission on Human and Peoples’ Rights
F O R E WO R D F R O M T H E
CHAIRPERSON OF THE AFRICAN
COMMISSION ON HUMAN AND
PEOPLES’ RIGHTS
Despite progress made
through the mobilization of
civil society organizations
and
the
international
community,
the
HIV
epidemic on the continent
is still a matter of concern.
In many regions in Africa,
people living with HIV—
particularly those at risk—
continue to face numerous
obstacles in terms of testing
and access to prevention, treatment, care and other
HIV-related services. Such obstacles include economic
barriers, prejudice and stereotypes, gender inequalities,
harmful socio-cultural practices and the persistence
of stigma and discrimination in health facilities. The
existence of punitive laws and restrictive policies and
practices—along with the lack of a conducive legal
environment for the effective protection of the rights of
people living with HIV and those at risk in most African
States—are some of the current challenges impeding the
HIV response in the continent and affecting our efforts to
reach the 90–90–90 targets.
In light of these considerations—and in recognition of
the importance of ensuring a human rights perspective
to the fight against the epidemic and to the management
of its repercussions—the African Commission on Human
and Peoples’ Rights (the African Commission) deemed
it necessary to undertake a study on HIV, the law and
human rights.
By Resolution ACHPR/Res.290 (EXT.OS/XVI) 14—
adopted at its 16th Extraordinary Session, held from
20 to 29 July 2014 in Kigali, Rwanda—the African
Commission assigned the task of conducting this study to
its Committee on the Protection of the Rights of People
Living with HIV (PLHIV) and those at Risk, Vulnerable
to and Affected by HIV. The report, entitled HIV, the
Law and Human Rights in the African Human Rights
System: Key Challenges and Opportunities for RightsBased Responses to HIV, was adopted by the African
Commission at its 61st Ordinary Session, held from 1 to
15 November 2017 in Banjul, The Gambia.
On my behalf and on behalf of the African Commission,
I would like to take this opportunity to thank all those
who contributed to the realization of this study. We would
especially like to extend our gratitude to the various
partners who spared no effort in providing technical
support to the Committee, particularly the Joint United
Nations Programme on HIV/AIDS (UNAIDS), African
Men for Sexual Health and Rights (AMSHeR), the AIDS
and Rights Alliance for Southern Africa (ARASA) and
the Southern Africa Litigation Centre (SALC).
This study, conducted in collaboration with State and
non-State actors, presents the current situation of the HIV
epidemic in Africa. It describes international, regional
and national HIV-related norms and standards, as well
as their interpretation and application by UN bodies,
regional African mechanisms and national courts of law
and other institutions. It contains a detailed analysis of key
challenges and human rights violations affecting the HIV
response in the continent. It also highlights best practices
and other promising practices at the regional or national
level in order to raise the awareness of States and other
stakeholders on the need to integrate the human rights
dimension as a key component in efforts to combat HIV.
The study puts forward recommendations to the different
stakeholders, including States Parties, for the effective
protection of the rights of people living with HIV
and those at risk. Attached to the report is a series of
questions that could be used by States in the preparation
of their periodic reports under Article 62 of the African
p. xiv
Report on the Study of the African Commission on Human and Peoples’ Rights
Charter on Human and Peoples’ Rights to provide details
on legislative and other measures they have adopted in
combating HIV.
the correlation between HIV and human rights for the
effective promotion and protection of the rights of people
living with HIV and those at risk.
In this regard, the African Commission calls on all
stakeholders—particularly States Parties—to take
ownership of the conclusions of this study and to
implement the recommendations therein to ensure that
the human rights dimension is better integrated into
their national policies, programmes, plans and strategies
for an effective response to the epidemic. It further
encourages national human rights institutions, civil
society organizations and other development partners
to disseminate and popularise the results of the study,
thereby increasing awareness among States Parties of
Ending the AIDS epidemic as a public health threat
is, now more than ever, our collective responsibility.
Everyone should, in his or her own sphere of action and
influence, fully and consciously play a role in promoting
the effective implementation of the recommendations
provided in this report to guarantee the promotion and
protection of the rights of people living with HIV, those
at risk and vulnerable to HIV.
HONOURABLE COMMISSIONER
SOYATA MAÏGA
Chairperson of the African Commission
on Human and Peoples’ Rights
Chairperson of the Committee on the Protection of the
Rights of People Living With HIV and Those at Risk, Vulnerable to and Affected by HIV
p.
xv
Report on the Study of the African Commission on Human and Peoples’ Rights
E X E C U T I V E S U M M A RY
1.
For more than three decades, the world has been
battling the HIV pandemic, which is estimated
to have claimed about 35 million lives globally.
Africa is the region of the world most affected by
the epidemic, with the great majority of deaths
from AIDS-related illness and new HIV infections.
Although important progress has been made in
the response to HIV in the region—including a
decline in new HIV infections and a significant
increase in access to antiretroviral therapy—the
epidemic remains a leading cause of death in
sub-Saharan Africa.2 Moreover, serious social,
legal and policy challenges continue to impact
the epidemic in a negative way. These challenges
include stigma, discrimination, gender inequality
and other negative norms and practices that affect
people vulnerable to HIV and hinder their access
to HIV services. 1
2.
Across the continent, women, young people,
sex workers, prisoners, people who inject drugs
and gay men and other men who have sex with
men are among the populations most affected by
the epidemic. Factors and conditions that make
people vulnerable to the epidemic often are linked
to human rights violations and disabling legal and
social environments. Laws, policies and practices
have a direct impact on the effectiveness of
country responses to the epidemic and the ability
of affected individuals and communities to access
HIV prevention, treatment and care services.
3. This report by the African Commission on Human
and Peoples’ Rights (African Commission) provides
the first comprehensive analysis of the legal
and human rights issues pertinent to HIV ever
conducted by an organ of the African Union. This
study was mandated by ACHPR/Res.290 (EXT.
OS/XVI) 2014 (Resolution 290) on the Need to
Conduct a Study on HIV, the Law and Human
Rights, adopted by the African Commission in July
2
2014 in Kigali, Rwanda. It is intended to outline
progress and challenges related to human rights in
the response to HIV, and to share good practices
and generate renewed action by States, civil society
and other stakeholders to advance human rights as
central to efforts to address HIV.
4.
The report presents the current state of the
HIV epidemic in Africa through a human rights
and gender lens by showing the populations
and locations most affected by HIV and those
underserved by the response to the epidemic. It
also describes the global, regional and national
norms and standards relating to HIV and health,
as well as their interpretation and application by
African regional mechanisms, United Nations
(UN) bodies and national courts and institutions.
It further provides a detailed analysis of the key
human rights challenges affecting the response to
HIV on the continent, including the following:
› discrimination;
› inequality;
› coercive HIV testing;
› barriers to treatment access;
› violations of the human rights of women and
girls;
› failure to uphold the human rights of children;
and
› the criminalisation of people living with HIV
and members of key populations (namely sex
workers, transgender persons, gay men and
other men who have sex with men, people who
use drugs and prisoners).
5.
This report not only outlines challenges and
human rights violations; it also highlights good
and promising practices at the regional or national
levels that address these challenges. The report
ends with conclusions and recommendations for
advancing human rights and the response to HIV
in Africa that are aimed at various stakeholders,
- WHO, Global Health Estimates 2015: Deaths by Cause, Age, Sex, by Country and by
Region, 2000–2015 (Geneva: WHO, 2016).
p.
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Report on the Study of the African Commission on Human and Peoples’ Rights
including States, the African Commission, other
African human rights bodies, national human
rights institutions, civil society and donors. Below
are the key findings from this study and the
recommendations for strengthening human rights
in the context of HIV in Africa.
KEY FINDINGS
Global and regional human rights frameworks contain solid
foundations for the protection of human rights in relation to HIV
6.
Most African States are Parties to numerous
international and regional human rights treaties
that guarantee critical protections in the context
of HIV. At the global level, these include the
following:
›
the International Covenant on Economic,
Social and Cultural Rights;
›
the International Covenant on Civil and
Political Rights;
› the International Convention on the Elimination
of All Forms of Racial Discrimination;
› the Convention on the Elimination of All Forms
of Discrimination against Women;
› the Convention on the Rights of the Child;
› the Convention on the Rights of Persons with
Disabilities; and
›
the Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or
Punishment.
7. At the regional African level, key provisions in the
African Charter on Human and Peoples’ Rights
(African Charter), the African Charter on the
Rights and Welfare of the Child (African Children’s
Charter), and the Protocol to the African Charter
on Human and Peoples’ Rights on the Rights of
Women in Africa (the Maputo Protocol) also are
relevant to HIV.3 The Maputo Protocol includes
explicit provisions addressing HIV under Article
14 on health and reproductive rights. People living
with, vulnerable to or affected by HIV are entitled
to all the human rights guaranteed in these global
and regional treaties, which include (among others):
› the right to non-discrimination, equal protection
and equality before the law;
› the right to life;
3
- See AIDS and Human Rights Research Unit, Compendium of Key Documents Relating
to Human Rights and HIV in Eastern and Southern Africa (Pretoria, South Africa:
p.
2
Pretoria University Law Press, 2007).
› the right to the highest attainable standard of
physical and mental health;
› the right to liberty and security of person;
› the right to dignity and integrity of the person;
› the right to freedom of movement;
› the right to seek and enjoy asylum;
› the right to privacy;
› the right to freedom of opinion and expression;
›
the right to freely receive and impart
information;
› the right to freedom of association;
› the right to work;
› the right to marry and to found a family;
› the right to equal access to education;
› the right to an adequate standard of living;
› the right to food;
› the right to adequate housing;
›
the right to social security, assistance and
welfare;
› the right to share in scientific advancement and
its benefits;
› the right to participate in public and cultural
life; and
›
the right to be free from torture and cruel,
inhuman or degrading treatment or punishment.
8.
These protections have been elaborated upon
and applied to HIV through global and regional
commitments, guidelines and resolutions adopted
by bodies such as the UN General Assembly, the
African Union, the African Commission, the
Intergovernmental Authority on Development
(IGAD), the East African Community (EAC) and
the Southern African Development Community
(SADC). At the global level, the development of
the International Guidelines on HIV/AIDS and
Human Rights in 1996 and the adoption of several
UN General Assembly political declarations on
HIV and AIDS were important milestones in
the recognition of HIV-related human rights. In
Africa, the 2010 adoption of Resolution 163 on the
Establishment of a Committee on the Protection
of the Rights of People Living With HIV (PLHIV)
and Those at Risk, Vulnerable to and Affected by
HIV, which established the HIV Committee, was
a critical breakthrough that localised HIV-related
human rights within the work of the African
Report on the Study of the African Commission on Human and Peoples’ Rights
Commission. At the global and regional levels,
human rights protections also have been applied
and interpreted through decisions on cases and
through general comments on HIV-related issues.
For example, at the global level, UN human rights
bodies have addressed cases relating to HIV-related
discrimination. In Africa, the African Commission’s
General Comments No. 1 on Article 14(1)(d) and (e)
of the Maputo Protocol and No. 2 on Article 14(1)
(a), (b), (c) and (f) and Article 14(2)(a) and (c) of the
Maputo Protocol, directly relate to the protection of
the rights of women in relation to HIV.
Good practices on the protection of HIV-related human rights
across the continent must be expanded
9.
In spite of the many human rights challenges
and concerns facing the HIV response in Africa,
critical progress and good practices have been
documented across the continent. These include
advances in the areas of legislation and policy at
the national and regional levels, progressive rulings
by courts and the implementation of rights-based
4
HIV programmes in several countries. These good
practices are critical for guiding countries in the
region on the best approaches to responding to the
epidemic.
Legal and policy advances at the national,
sub-regional and regional levels
Outlawing HIV-related discrimination
10. A significant number of African countries have
taken legislative and policy steps to combat HIVrelated discrimination. Some 35 African States
have adopted laws to protect people living with
HIV from discrimination, many of which are
HIV-specific.4 In spite of their shortcomings,
these laws prohibit discrimination in areas such
as employment, housing, education and health
care. In Kenya, the HIV and AIDS Prevention
and Control Act, 2006, established an HIV and
AIDS Tribunal to specifically address HIV-related
discrimination cases (among others). The Tribunal
is composed of legal experts, medical practitioners
and people living with HIV. Since its inception,
- “2012 Progress Reports Submitted by Country,” UNAIDS, accessed
15 June 2016, www.unaids.org/en/dataanalysis/knowyourresponse/
countryprogressreports/2012countries.
p.
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Report on the Study of the African Commission on Human and Peoples’ Rights
the Tribunal has addressed several hundred cases
relating to workplace issues—including mandatory
HIV testing and discrimination on the basis of an
individual’s HIV status—as well as discrimination
and abuse in health-care settings and denial of
service based on HIV status.
Legislation to advance access to medicines
independently to medical treatment if they are of
“sufficient maturity and have the mental capacity
to understand the benefits, risks, social and other
implications of the treatment or operation.”
Similarly, Article 12 of Senegal’s Loi n° 2010-03 du
9 avril 2010 relative au VIH/SIDA provides that a
minor over the age of 15 years may independently
consent to HIV testing.
11. As part of efforts to increase access to medicines,
a number of countries in Africa— including
Mozambique, Rwanda, Zambia and Zimbabwe—
have all used their laws to issue compulsory
licenses for medicines. In 2008, Rwanda became
the first country in the world to implement the
World Trade Organization (WTO) Decision of
the General Council of 30 August 2003, which
permits someone other than the patent holder to
manufacture a lower-cost version of a medicine
for export to developing countries that do not
themselves have the capacity to manufacture such
products. The 2003 Decision requires that the
developing country announce its intention to use
this mechanism, and that it should further specify
the expected quantity of drugs to be supplied and
issue a compulsory license for them. In spite of
these restrictions and challenges, the successful
shipment of 7 million doses of generic antiretroviral
medication from Canada to Rwanda demonstrates
the possibility of implementing the Agreement
on Trade-Related Aspects of Intellectual
Property Rights (TRIPS) flexibility, provided that
governments (both developed and developing) and
international organisations (such as the WTO)
effectively support such implementation.
Creating enabling legal and policy environments
for the HIV response
12.
Several countries have adopted protective laws
and policies to advance the response to HIV. In
Mauritius, for example, the HIV and AIDS Act
No. 31 (2006) provides access to a range of HIV
prevention services for people who use drugs; this
includes the provision of clean needles without
penalty, even though drug use is criminalised in
the country. In Lesotho, the Children’s Protection
and Welfare Act, 2011, provides in Section 240(2)
that a child of 12 years and over may consent
p.
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13.
At the sub-regional level, the Model Law on
HIV in Southern Africa, adopted by the SADC
Parliamentary Forum in 2008, provides rightsbased and evidence-informed recommendations
for legislating around HIV. Although it is a nonbinding document, the Model Law has been used
as a yardstick and advocacy tool for assessing and
challenging national HIV laws. The East African
Community HIV Prevention and Management
Act, 2012, provides for binding provisions that
create an enabling and protective legal framework
for EAC countries.
14.
At the regional level, the African Commission
adopted in 2012 General Comment No. 1 on
Article 14(1)(d) and (e) of the Maputo Protocol,
and in 2014 General Comment No. 2 on Article
14(1)(a), (b), (c) and (f) and Article 14(2)(a) and
(c) of the Maputo Protocol. Together these two
General Comments elaborate on the protection
of the human rights of women in the context
of HIV in Africa. The African Commission also
adopted ACHPR/Res.275 (LV) 14 (Resolution
275), which calls on States to end discrimination
and other human rights violations based on sexual
orientation and gender identity. Further, ACHPR/
Res.376 (LX) 17 (Resolution 376), adopted by
the African Commission in May 2017, expresses
concerns about restrictions to civil society space
and threats to human rights defenders working
on the “right to health, the fight against HIV/
AIDS, reproductive health, sexual orientation and
gender” (among other issues). It calls on States to
adopt specific legislative measures to recognise
the status of human rights defenders and protect
their rights. Finally, Resolution 260 on Involuntary
Sterilisation and the Protection of Human Rights
in Access to HIV Services (Resolution 260),
Report on the Study of the African Commission on Human and Peoples’ Rights
adopted by the African Commission in 2013,
calls on all countries to take measures to end and
remedy involuntary and coerced sterilisation of
women living with HIV.
Advancing HIV-related rights through the courts
15.
Throughout the continent, courts have enabled
critical advances in the protection of human rights
in the context of HIV. Key judicial breakthroughs
include the following.
Challenging discrimination based on
HIV-related status
16. In Hoffmann v. South African Airways, the
South African Constitutional Court held that the
dismissal of an employee on grounds of HIV
status violates the right to dignity and constitutes
unfair discrimination.
Programmes to advance human rights in the HIV response
20.
Throughout the continent, countries have set
up programmes to advance human rights and
address barriers to HIV services, including for
key populations. In Côte d’Ivoire, for instance,
the Clinique Confiance, established in 1992,
provides HIV and sexually transmitted infection
(STI) prevention and treatment services for female
and male sex workers. The tailored services for
sex workers provided by Clinique Confiance has
increased uptake of HIV and STI prevention
and treatment services among sex workers in the
areas covered. In Uganda, legal support services
for sex workers—including a hotline, legal services,
documentation of violations and training on rights
for sex workers—are helping to reduce violations
against that key population.
21. At the regional level, SADC’s HIV Cross-Border
Ending mandatory testing for sex workers
17. In S v. Mwanza Police, Mwanza District Hospital,
Ministries of Justice, Internal Affairs, Health,
Attorney-General and Ex parte: HB, JM (o.b.o
9 others), the High Court of Malawi held that
mandatory HIV testing violated a woman’s
constitutional rights to privacy, equality, dignity
and freedom from cruel, inhuman and degrading
treatment.
Initiative co-ordinates HIV prevention, treatment,
care and support services for long-distance truck
drivers, sex workers and border communities
along major transport corridors in southern
Africa. It includes a commitment to advocate for
the review of laws and regulatory frameworks
that criminalise sex work and the development of
policy frameworks to increase access to services.
22. Many of the advances in the HIV response in Africa
Ending overly broad HIV criminalisation
18. In Kenya, the High Court in Aids Law Project v.
Attorney General and Others found that Section
24 of the HIV and AIDS Prevention and Control
Act, 2006, which criminalised HIV non-disclosure
and exposure, was vague and overbroad and
thus violated the rights guaranteed under the
Constitution, including the right to privacy.
Ending forced sterilisation of women living with HIV
19. The Supreme Court of Namibia found in Namibia
v. LM and Others that the sterilisation without
informed consent of three women living with HIV
was a violation of their rights to physical integrity
and to found a family—rights guaranteed to them
under the Constitution. The court, however,
dismissed their claim of discrimination on the
basis of HIV status.
have been made possible thanks to global solidarity
and funding from bilateral and multilateral sources.
As per the latest data available in 2017, 33 of the
89 low-income and middle-income countries
globally had 75% or more of their HIV in-country
expenditures provided by external sources. Despite
this, overall external funding for the HIV response
in low-income and middle-income countries is
decreasing. While there are sub-regions in Africa
where international financing is stable or continues
to grow—such as East and South Africa—national
financial commitments and actual in-country
expenditures remain insufficient to fill the gap,
particularly in West, central and North Africa. The
flatlining or actual decrease in international funding
for the HIV response—and the lack of an increase
in domestic expenditures in many countries—poses
a serious threat to the fight against the epidemic,
especially for sustaining and expanding the
protection of HIV-related human rights.
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Report on the Study of the African Commission on Human and Peoples’ Rights
T he engagement of the African regional human rights system
remains limited in efforts to advance HIV-related human rights
23. In spite of recent progress, the role of the regional
African human rights system in the response to HIV
remains limited. The study has identified several
challenges that must be addressed in order to ensure
that regional mechanisms can fully contribute to
efforts to advance human rights in relation to HIV.
These challenges include the following.
Limited focus on HIV from most African
human rights mechanisms
24.
Besides the African Commission and its HIV
Committee, other regional human rights bodies
have thus far played little to no role in addressing
the human rights issues raised by the most serious
health epidemic on the continent. Bodies such as
the African Committee of Experts on the Rights
and Welfare of the Child (ACERWC) could do
more to address pertinent HIV-related human
rights issues affecting children. A number of special
mechanisms of the African Commission (e.g. special
rapporteurs and working groups) could further
articulate the HIV-related issues that are pertinent
to their mandate. These include the following:
› the Special Rapporteur on Prisons, Conditions
of Detention and Policing in Africa;
› the Special Rapporteur on Refugees, Asylum
Seekers, Internally Displaced Persons and
Migrants in Africa;
› the Special Rapporteur on Rights of Women;
›
the Special Rapporteur on Freedom of
Expression and Access to Information;
› the Committee for the Prevention of Torture in
Africa;
› the Working Group on Economic, Social and
Cultural Rights; and
› the Working Group on Rights of Older Persons
and People with Disabilities.
Limited accountability for, and enforcement of, regional
commitments relating to HIV
25.
There have been a plethora of
resolutions,
commitments and similar documents on HIV
adopted at the regional and sub-regional levels.
However, most of them have been symbolic and
have lacked concrete measures for ensuring their
p.
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5
- Benin, Burkina Faso, Côte d’Ivoire, Ghana, Malawi, Mali, Tanzania and Tunisia.
effective monitoring and implementation. As
a result, human rights protections provided in
these documents have not had much impact for
the protection of people living, affected by or
vulnerable to HIV.
Limited awareness and visibility of regional human
rights mechanisms on HIV-related issues
26. Affected individuals and civil society organisations
are generally unaware of the existence of regional
human rights mechanisms. Publicly available
information on regional mechanisms and how
best to approach them is not easily accessible. Civil
society organisations and people affected by HIV
across the continent are generally unaware of the
mandate of regional human rights mechanisms,
the process for making a communication or
otherwise interacting with the mechanisms, and
how to contact them. Recent efforts by the HIV
Committee to interact with government institutions
and civil society through country visits and during
regional and global HIV conferences are welcome,
but they need to be expanded.
Inaccessibility of mechanisms
27. Regional mechanisms are inaccessible to civil society
organisations and people affected by HIV. To
meaningfully participate in the African Commission’s
public sessions, civil society organisations must have
observer status. Only a handful of organisations
working on HIV currently enjoy this status, and travel
to the public sessions of the African Commission is
costly. Similarly, the African Court on Human and
People’s Rights (the African Court) does not permit
individuals to approach the Court unless the State
related to the individual complaint has signed a
declaration pursuant to Article 34(6) of the Protocol
to the African Charter on Human and Peoples’
Rights on the Establishment of the African Court on
Human and Peoples’ Rights that allows individuals
and NGOs to bring matters directly to the Court.
To date, only eight African Union Member States
have signed this declaration, meaning that people
affected by HIV and civil society organisations
have limited access to the African Court.5 Thus, it
is unsurprising that the Court has yet to issue any
decisions specifically relating to HIV.
Report on the Study of the African Commission on Human and Peoples’ Rights
Resource constraints
28.
Regional human rights mechanisms—including
the African Commission and, particularly, its
HIV Committee—are hampered in their work
by resource constraints. This limits their ability to
conduct the promotional activities, missions and
fact-finding visits expressed by their mandate.
HIV-related human rights violations represent
a serious concer n in Africa
professionals, health-care workers and employers—
do not always understand HIV or its relationship to
the law, and they are therefore not able to uphold
human rights. Similarly, people living with HIV are
not always aware of their rights or they lack access
to legal services, and these challenges—together
with stigma and discrimination—combine to pose
significant barriers to accessing legal services.
Compulsory and other for ms of coercive HIV testing
29.
Across the continent, countries have introduced
33.
Mandatory and coerced testing and breaches
laws and taken other measures in response to HIV.
In spite of these measures, HIV-related human
rights violations continue to occur. These human
rights violations impede programmes to address
HIV by stifling health-seeking behaviours and
limiting the abilities of stakeholders and service
providers to act against the epidemic. Examples
of human rights violations in the context of HIV
include the following.
of confidentiality have been reported across the
continent. Countries such as Egypt and Mauritius
still impose HIV testing for immigration purposes,
and mandatory pre-marital HIV testing has been
reported in several countries, including Burundi,
Democratic Republic of the Congo, Ghana,
Kenya, Nigeria, Tanzania and Uganda. Where
same-sex sexual conduct is criminalised, cases of
involuntary testing of men accused of engaging
in consensual same-sex sexual acts have been
documented. In efforts to expand access to HIV
testing, countries have introduced testing modalities
such as provider-initiated testing and counselling
(PITC), community and home testing, routine
testing, couples testing and mobile testing. While
critical to expanding access to HIV testing, some
of these approaches can have serious human rights
implications, particularly in terms of confidentiality
and informed consent. HIV testing also poses
gender-related issues because women, particularly
pregnant women, are disproportionately subjected
to HIV testing without clear measures to ensure
their safety and protection from abuse.
Inequality and discrimination against
people living with HIV
30.
People living with HIV in Africa continue to
experience high levels of discrimination and
stigma because of their HIV status. Stigma
and discrimination hinder efforts to end the
HIV epidemic because they discourage people
living with HIV from disclosing their status to
family members and sexual partners. They also
undermine the ability and willingness of people
living with HIV to access and adhere to treatment.
31. Stigma and discrimination have a profound effect
on the ability of people living with HIV to enjoy
their rights to work, health care, privacy, dignity and
freedom of movement. Forms of discrimination
and stigmatisation are similar across the continent
and include marginalisation from families and
communities, verbal harassment, physical assault,
workplace discrimination, and coercive sexual and
reproductive health-care services.
32.
In many countries where anti-discrimination
laws exist to protect people living with HIV,
their implementation and enforcement is often
lacking. Key decision-makers—including legal
6
- Communication 279/03-296/05, Sudan Human Rights Organisation and Centre
on Housing Rights and Evictions (COHRE)/Sudan, Twenty-Sixth Annual Activity
Challenges to access to treatment, including restrictive
intellectual property regimes
34. In spite of recent increases in access to antiretroviral
therapy, a significant number of people living
with HIV in Africa still lack access to life-saving
medication. Article 16 of the African Charter
places an obligation on Member States to “take the
necessary measures to protect the health of their
people and to ensure that they receive medical
attention when they are sick.”6 This includes nondiscriminatory access to affordable life-saving
treatments, such as antiretroviral medicines. The
Report, accessed 9 October 2017, http://www.achpr.org/files/sessions/45th/
comunications/279.03-296.05/achpr45_279.03_296.05_eng.pdf.
p.
7
Report on the Study of the African Commission on Human and Peoples’ Rights
protection of intellectual property (IP) rights—and
the failure to reform or effectively use flexibilities
within the IP regime—undermines access to
affordable medicines in Africa: one in two people
living with HIV are still not accessing antiretroviral
therapy. In eastern and southern Africa, 67%
[54–76%] of women and 51% [41–58%] of men
were accessing antiretroviral therapy in 2016. In
western and central Africa, 44% [32–56%] of
women living with HIV and 25% [17–32%] of
men living with HIV were accessing antiretroviral
therapy in 2016.7
35.
Countries face many barriers when trying to
provide citizens with affordable drugs. The TRIPS
Agreement limits the ability of countries to access
affordable medicines: the flexibilities existing under
TRIPS have proven too complex and restrictive for
the great majority of African countries. In recent
years, anti-counterfeiting laws have been shown
to represent a threat to the ability of countries to
manufacture or import generic medicines.
Overly broad criminalisation of HIV non-disclosure,
exposure or transmission
36. More than 25 countries in Africa have adopted
laws that explicitly allow for the criminalisation
of HIV non-disclosure, exposure or transmission.
This is problematic, because overly broad
criminalisation of HIV non-disclosure, exposure
or transmission raises both public health and
human rights concerns. Rather than achieving
justice or preventing HIV transmission, laws or
prosecutions for HIV non-disclosure, exposure or
transmission perpetuate stigma and discrimination
against people living with HIV. They create
barriers to accessing prevention, treatment
and care services, and they expose already
marginalised groups (such as sex workers and
people who inject drugs) to further discrimination
and persecution. These laws and prosecutions
often relate to acts that represent no risk of HIV
transmission, and they involve disproportionately
high penalties. Furthermore, laws allowing for
HIV criminalisation can be vague and ambiguous,
and they pose a serious risk of unfair application
and the miscarriage of justice.
p.
8
7
UNAIDS 2017 estimates.
Restrictions to civil society space in
the context of HIV
37.
A vibrant, well-funded, resourced and engaged
civil society and community movement is critical
to the response to the HIV epidemic. Civil society
plays an important role in delivering testing and
treatment services, educating communities on
HIV and prevention, building the capacities and
resilience of key populations, and advocating for
law reform and increased government services.
38.
Despite
their importance, non-governmental
organisations working on HIV or with key
populations appear to be experiencing increased
challenges, as governments restrict the activities
of organisations seen to be supporting or
promoting illegal or so-called immoral activities.
Several organisations working on HIV have
reported challenges while registering, operating
or attempting to access funding. These challenges
mainly target groups that conduct advocacy and
human rights work on HIV and those that work
with key populations, and they have been shown
to impact the ability of these organisations to
contribute fully to the HIV response. In particular,
they limit the ability of organisations to raise funds
or apply for grants, advocate for a stronger legal
environment for the HIV response, and provide
critical HIV-related services. Such restrictions
also drive marginalised populations underground,
inhibiting their ability to access testing and
treatment and increasing their vulnerability to
violence, abuse and HIV infection.
Conflict as a challenge for the HIV response
39. Armed conflict and post-conflict periods raise
challenges for HIV prevention and treatment.
During armed conflict, HIV prevention and
treatment services tend to be significantly reduced
because of the instability created by war. Armed
conflicts also can increase the need for HIV
prevention and treatment services, and they can
increase the risk of sexual violence and abuse.
40. People displaced by conflict have reduced access to
prevention and treatment services. Knowing where
to access such services and having a regular supply
Report on the Study of the African Commission on Human and Peoples’ Rights
of antiretroviral medicines can be difficult in such
circumstances. This can result in people living with
HIV developing resistance to HIV medicines. Due
to their socio-economic vulnerability and other
factors, refugees and migrants also experience
increased risks of acquiring HIV.
42. Women living with HIV experience discrimination
and coercive practices in relation to their sexual
and reproductive health rights.10 Discriminatory
treatment by health-service providers can deprive
women living with HIV of their right to a
family, breach their right to privacy, deny them
potentially life-saving treatments or procedures
and, in some cases, amount to torture. These
practices include being advised not to have
children, being forced to use contraception in
order to obtain antiretroviral therapy and being
coerced into terminating a pregnancy.
Challenges faced by women and girls
41. Women are significantly more vulnerable to
HIV than men in Africa, where women and girls
accounted for 59% of people living with HIV in
2016.8 In sub-Saharan Africa, HIV prevalence
among young women and girls is more than
double what it is among young men and boys.
Laws, policies and practices that perpetuate
gender inequality, harmful gender norms and
gender-based violence undermine the health of
women and girls by keeping them in poverty and
limiting their autonomy and decision-making
power, including limiting their ability to access
health-care services. In some settings, women who
are subjected to intimate partner violence are on
average 1.5 times more likely to acquire HIV.9
8
- UNAIDS 2017 estimates.
9
- World Health Organization et al., Global and Regional Estimates of Violence against
Women: Prevalence and Health Effects of Intimate Partner Violence and Non-Partner
Sexual Violence (Geneva: World Health Organization, 2013).
43.
Harmful
cultural practices—such as wife
inheritance, child marriage and female genital
mutilation
(FGM)—also
could
increase
vulnerability to HIV among women and girls.
Child marriage and FGM are still legal in a number
of countries, and even where they are illegal,
many women report being unable or unwilling to
oppose them for religious or cultural reasons, or
because they feel forced to abide by them out of
fear of recrimination. A number of countries have
10
Global Commission on HIV and the Law, HIV and the Law (New York: Global
Commission on HIV and the Law, 2012), 64.
p.
9
Report on the Study of the African Commission on Human and Peoples’ Rights
begun to outlaw both child marriage and FGM,
but exceptions and loopholes continue to exist in
relation to marriage. Changing laws also does not
necessarily result in changes to customary and
religious practices, particularly where custom and
tradition tend to prevail over the law.
research undertaken on HIV and disability in
Africa suggests that persons with disabilities have
a similar, if not higher, risk of acquiring HIV than
the general population.
47.
People living with HIV who have a disability
face significant barriers to accessing health-care
services. This includes negative attitudes among
health-care providers towards persons with
disabilities, particularly in relation to sexual and
reproductive health care. There also is limited
access to services for persons with disabilities,
including actual services and educational materials
and information. Services designed to meet their
specific needs are also very limited.
Challenges faced by children
44. Children and adolescents face various human rights
challenges in the context of HIV. These include
barriers to their ability to protect themselves
from HIV transmission or to access the necessary
treatment, care and support when they have
acquired HIV or been affected by it. Child marriage
and laws and policies that place restrictions on
access to sexual and reproductive health services
increase young people’s vulnerability to HIV and
limit their access to health and HIV services.
45. Children living with HIV often experience stigma,
discrimination and violations of their rights,
including discrimination within their communities
and in their access to health-care services. Reports
indicate that children are sometimes subjected to
HIV testing without their voluntary and informed
consent, or to having their rights to confidentiality
breached by health professionals. Access to
independent HIV testing, treatment and care for
adolescents and young people is limited by laws and
policy, including age of consent requirements that
limit their access to services. For many children,
access to HIV treatment and care is limited by
social, medical, systemic and economic barriers,
including the failure to implement appropriate
systems and strategies for early diagnosis and
treatment for children. Furthermore, lack of birth
registration for children, particularly orphans and
other vulnerable children, contributes to hindering
their access to health and social services.
Challenges faced by persons with disabilities
46.
Persons with disabilities are often marginalised
and stigmatised in society. They experience high
rates of violence, sexual abuse and poverty, and
they face limited access to health-care services.
These factors contribute to making them more
vulnerable to HIV and to hindering their ability to
access services when living with HIV.11 The limited
11
p.
10
Challenges faced by indigenous persons
48.
The prevalence of HIV and specific risk factors
among indigenous populations in Africa is
significantly underexplored and the data are
limited. Indigenous populations in Africa
experience human rights violations that likely
increase their vulnerability to HIV infection,
including political and economic marginalisation,
de facto discrimination of non-agricultural
groups, loss of land and community, lack of access
to health-care services (often due to geographic
isolation) and poverty.
Challenges faced by migrants, refugees
and displaced persons
49.
Social, economic and political factors in both
the country of origin and destination countries
influence migrants’ and refugees’ risk of HIV
infection. HIV prevalence can be higher among
migrants, refugees and displaced persons,
especially for those originating from regions and
settings with high HIV prevalence in the general
population. These populations may acquire HIV
in their country or region of destination or while
in transit and often face a specific vulnerability to
HIV related to their status as migrants, refugees
and displaced persons. Stigma, discrimination,
violence, denial of health services and other
human rights violations contribute to making
these populations particularly vulnerable to
HIV and limiting their access to HIV and other
health services.
United Nations Office of the High Commissioner for Human Rights (OHCHR) et al.,
HIV/AIDS and Disability Policy Brief (OHCHR, 2009); Waimar Tun et al., “Limited
Uganda and Zambia,” Journal of International Aids Society 19, no. 5 (2016): 20829;
Accessibility to HIV Services for Persons with Disabilities Living with HIV in Ghana,
and UNAIDS, The Gap Report (Geneva: UNAIDS, 2014).
Report on the Study of the African Commission on Human and Peoples’ Rights
are less likely to seek out health care and testing.
They also are vulnerable to HIV through sexual
assault, and in many contexts, they are pushed into
high-risk practices such as sex work. As a result,
transgender people are one of the most vulnerable
groups in relation to HIV, being 49 times more
likely to be living with HIV than adults in the
general population.13 Overall, there is limited
information on the impact of HIV on transgender
women and men in Africa; for the most part, they
are an “invisible” population in responses to the
HIV epidemic.
Challenges faced by key populations in need of specific
protection and access to HIV and health services
50.
Key populations—who are already marginalised
through other forms of stigma, inequality and
discrimination—are disproportionately affected
by HIV. Evidence from UNAIDS and the World
Health Organization (WHO) shows that key
populations in the context of HIV include gay
men and other men who have sex with men, sex
workers, transgender people, people who inject
drugs and prisoners.12 These populations face
human rights violations as well as legal and social
barriers that make them vulnerable to HIV and
limit their access to health and HIV services.
Sex workers
53.
Globally, female sex workers are 10 times more
likely to acquire HIV than adult women in the
general population.14 In sub-Saharan Africa, HIV
prevalence among female sex workers is roughly
26%. Sex workers in Africa face exceptionally
high levels of stigma, discrimination, violence,
extortion, sexual abuse and rape from clients,
intimate partners and law enforcement officials;
this, in turn, places them at increased risk of HIV.
Gay men and other men who have sex with men
51. In 2016, the highest global median HIV prevalence
rates among gay men and other men who have sex
with men were reported in western and central
Africa (17%) and eastern and southern Africa
(14%). Punitive legal environments—combined
with stigma, discrimination and high levels of
violence—place gay men and other men who
have sex with men at high risk of HIV infection
because they are driven underground due to fear
of prosecution or other negative consequences.
As a result, they do not receive appropriate
health education and service provision, and they
are reluctant to seek health-care services, testing
and treatment. In recent years, a number of
countries have introduced new laws that target
these populations, in some cases extending
criminalisation to individuals and organisations
perceived to support same-sex sexual relationships.
This is believed to have led to increased harassment
and prosecution on the basis of sexual orientation
and gender identity, and it has resulted in increased
difficulties for health workers who are trying to
reach this population. In most countries, national
funding and spending to address the health and
HIV needs of this population remain limited.
54. Sex work (or aspects of sex work) is criminalised in
a great majority of countries across Africa. Even in
countries where sex work is not criminalised, law
enforcement practices such as arbitrary detention
and arrests based on condom possession deter sex
workers from accessing condoms and place them
at risk of HIV infection. Sex workers have also
been charged with spreading STIs and forced to
undergo mandatory HIV testing.
People who use drugs
55.
HIV prevalence among people who use drugs
in Africa is approximately 5% (based on nine
countries reporting). While the number of
people who use drugs in Africa is relatively small
in comparison to other regions, this number
is growing along with the HIV infection rate.
Criminalisation of drug use, fear of arrest and
harassment, the imprisonment of people who use
drugs and widespread societal stigma all contribute
to discourage access to health-care services among
people who use drugs and to create legal barriers
to the provision of needle–syringe programmes.
These laws and practices have prevented most
Transgender persons
52.
Transgender persons are marginalised, abused
and often rejected by their families and society.
They experience discrimination, gender-based
violence and abuse, and marginalisation and social
exclusion, and in the face of such treatment, they
12
These populations often suffer from punitive laws or stigmatizing policies, and they
are among the people most likely to be exposed to HIV. Their engagement is critical
to a successful HIV response everywhere: they are key to the epidemic and key to
the response. See UNAIDS, UNAIDS Terminology Guidelines, 31; WHO, Consolidated
13
Guidelines on HIV Prevention, Diagnosis, Treatment and Care for Key Populations
(Geneva: WHO, 2014).
Stefan D. Baral et al., “Worldwide Burden of HIV in Transgender Women: A Systematic
Review and Meta-Analysis,” The Lancet Infectious Disease 13, no. 3 (2013): 214–222.
14
UNAIDS special analysis, 2016.
p.
11
Report on the Study of the African Commission on Human and Peoples’ Rights
countries in Africa from establishing effective HIV
prevention, treatment, care and support services for
people who inject drugs (including harm reduction
services, such as needle–syringe programmes and
opioid substitution therapy).
› Adopt effective measures to prevent and redress
human rights violations in the context of HIV,
and refrain from discrimination, criminalization
or other human rights violations against people
living with HIV, key populations and other
vulnerable groups.
Prisoners
56.
Prison populations are estimated to be between
two to 10 times more likely to contract HIV and
tuberculosis (TB) than the general population.
In 2016, the estimated median HIV prevalence
among prison populations in East and southern
Africa was 20%.
57. A number of factors contribute to the high risk
of HIV exposure in prisons. Poor conditions—
including severe overcrowding, minimum
ventilation, inadequate sanitation, poor nutrition
and high levels of sexual violence—play a part in
high vulnerability to HIV and TB. Such conditions
violate the rights of prisoners to dignity, health and
to be free from cruel, inhumane and degrading
treatment or punishment.
58. Prisons also are sites of unsafe practices that place
prisoners at high risk of HIV, including unprotected
sex, rape, drug use, multi-person use of injecting
equipment and unsterile tattooing. Criminalisation
of same-sex sexual relations and drug use continue
to be used to prevent many countries from providing
needed HIV services and commodities in prisons,
including condoms, lubricants, clean needles and
opioid substitution therapy.
RECOMMENDATIONS
59.
p.
12
To States
›
Take immediate steps to review and amend
laws, policies and practices to ensure that
they are in line with human rights norms and
principles, and that they support effective HIV
responses. In particular, steps should be taken
to remove laws and other measures that allow
for discrimination against and criminalisation
of people living with HIV and members of key
populations (including sex workers, people who
inject drugs, gay men and other men who have
sex with men, and transgender persons).
› Remove legal, policy, social and other barriers
that limit the rights of women and girls to
access HIV prevention, treatment, care and
support services or those that make them more
vulnerable to HIV.
› Remove legal, policy, social and other barriers
that limit access to HIV prevention, treatment,
care and support services among children and
young people or those that make them more
vulnerable to HIV.
› Remove punitive and restrictive laws, policies
and practices that infringe upon the rights
to freedom of association and assembly of
organisations and human rights defenders
working on health and HIV. Also remove the
punitive and restrictive laws, policies and
practices that stigmatise and discriminate
against particular categories of human rights
defenders on the basis of sex, health status,
sexual orientation, gender identity and
expression, or other status.
› Maintain and expand dialogue and consultation
with civil society organisations working on HIV
and human rights, including those working with
or for key populations.
› Ensure that national mechanisms responsible for
the response to HIV (including national AIDS
commissions) apply rights-based responses
and guarantee the meaningful participation of
people living with HIV and key populations
in the HIV response, as provided in the good
practices identified in this report.
› Take the necessary measures to increase their
financial allocation to the health sector in
general—and for HIV services in particular—
as agreed in the Abuja Declaration on HIV/
Report on the Study of the African Commission on Human and Peoples’ Rights
›
Create opportunities for dialogue between
States, civil society and other key stakeholders
on the challenges, good practices and progress
related to the protection of human rights in the
context of HIV.
AIDS, Tuberculosis and Other Related
Infectious Diseases (Abuja Declaration).
› Take the necessary measures to establish and
expand programmes to reduce stigma and
discrimination and to expand access to justice in
the context of HIV and health. These measures
should include the following:
»
Programmes to reduce stigma and
discrimination.
These
can
include
community interaction and focus group
discussions involving people living with HIV
and members of populations vulnerable to
HIV infection, as well as the use of media,
peer mobilization and support developed for
and by people living with HIV to promote
health, well-being and human rights.
» Programmes to ensure access to HIV-related
legal services.
» Programmes on monitoring and reforming
laws, regulations and policies relating to HIV.
»
Legal literacy (“know your rights”)
programmes.
»
Sensitization of law-makers and law
enforcement agents.
» Training for health-care providers on human
rights and medical ethics related to HIV.
»
Programmes to reduce discrimination
against women in the context of HIV.
60. To the African Union and other regional and sub-
regional bodies
› Increase political and technical engagement in
efforts to address the HIV epidemic in Africa,
including the legal and policy challenges raised
by HIV.
› Encourage States to take appropriate measures
to address laws, policies and practices that
violate human rights and act as barriers to
effective responses to HIV.
›
Ensure appropriate attention to HIV and
human rights issues and challenges in the
implementation of key regional and subregional priorities, agendas and frameworks,
including Agenda 2063 of the African Union.
› Continue to provide space for all civil society
organisations (including those representing
key populations) to engage States and other
stakeholders in the response to HIV at the
regional and sub-regional levels, and to ensure
their effective participation in regional policy
development and decision-making processes.
›
Encourage and support full collaboration
between States and national, regional and
international human rights mechanisms, and
support the independence of these mechanisms.
61.
To the African Commission
› Continue to raise awareness on the importance
of promoting and protecting human rights in
the context of HIV, including through country
visits, fact-finding missions, urgent appeals and
the work of subsidiary mechanisms.
› Systematically monitor and denounce human
rights violations that are committed in the
context of HIV, including by publishing
an annual update developed by the HIV
Committee that examines the key human
rights progress and challenges facing the HIV
response in Africa.
›
Fully utilise the protective and promotional
mandates to monitor State compliance with
all relevant human rights norms and standards
relevant to HIV, including through country
visits, recommendations on State reports, factfinding missions, urgent appeals and other
means. In particular,
»
call on Members States to address the
questions provided in the Annex of this study
when preparing their state reports under
Article 62 reports; and
»
ensure that the African Commission and
its subsidiary mechanisms use the questions
provided in the Annex of this study in their
p.
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Report on the Study of the African Commission on Human and Peoples’ Rights
country visits, consideration of state reports
and fact-finding missions.
›
Encourage Member States to conduct law
and policy review and reform, and to adopt,
implement and enforce rights-based laws,
policies and plans in the context of HIV and
AIDS, drawing on international and regional
guidance on HIV law and human rights.
› Monitor and ensure the effective dissemination
and implementation of HIV-related key
resolutions, general comments and guidelines
of the African Commission.
› Develop guidelines and recommendations for
Member States on particular legal and policy
issues affecting the rights of people living with
HIV and key populations. Among other issues,
these guidelines should address criminal law
and its impact on the HIV response.
› Ensure that the HIV Committee has the necessary
technical, human and financial resources to fully
discharge its mandate as provided in Resolution
163 of the African Commission.
› Ensure the effective dissemination and
promotion of the present study and its
recommendations, including through seminars,
promotional visits and other appropriate means.
›
Continue and reinforce collaboration and
dialogue with civil society, governments and
relevant regional and global institutions working
on HIV in order to discuss challenges, good
practices, progress and effective accountability
to advance human rights-based responses to
HIV, including through the work of the HIV
Committee.
› Consider the extension of the mandate of the
HIV Committee in the medium- to long-term
to cover other critical health issues that are
affecting the continent.
p.
14
62.
To the ACERWC
› Require specific information on children and
HIV from Member States in the States Parties
Reporting Guidelines.
› Actively ensure the promotion and protection
of the rights of the child in the context of HIV
through its mandate, including country visits,
reports and resolutions on the rights of the
child.
›
Develop a general comment focused on the
rights of the child in the context of HIV and
the obligation of States to respect, protect and
fulfil these rights. This should address access to
HIV prevention, testing, treatment and care
services for children, including access to sexual
and reproductive health services.
›
Encourage Member States to ensure that
domestic legal frameworks protect the rights of
children living with HIV and those vulnerable
to HIV infection.
› Urge Member States to conduct the necessary
law and policy review and reform, and to
adopt, implement and enforce rights-based
laws, policies and plans in the context of HIV
and in accordance with the African Children’s
Charter.
›
Increase awareness of ACERWC’s mandate
among civil society and other organisations
working on the rights of the child in the context
of health and HIV.
63.
To national human rights institutions, gender
commissions and similar bodies
› Effectively use their promotion and/or
protection mandates to hold States accountable
for advancing human rights in the context of
the HIV response.
› Establish focal points on HIV and health within
the institution or commission, and ensure they
Report on the Study of the African Commission on Human and Peoples’ Rights
are adequately resourced and actively engage
all human rights issues affecting people living
with HIV and members of key populations.
› Work closely with and regularly engage national
authorities and programmes (such as HIV
and TB programmes) working on HIV, TB
and other health issues, as well as civil society
organisations (including those representing key
populations) that are working on these issues.
64.
To civil society organisations
›
Continue to engage national, regional and
UN human rights mechanisms to prevent
and respond to human rights violations in
the context of HIV. In particular, prioritise
engagement with the African Commission, its
HIV Committee and other regional bodies on
HIV and human rights.
›
Establish and reinforce regional partnerships
and approaches to advance collaboration and
intersectional approaches with the African
Commission and African Union that build
alliances with diverse civil society organisations
working on areas such as women and young
people, and with human rights defenders
working on issues such as health, HIV, sexual
orientation, gender identity and expression,
civic space, and sexual and reproductive health
and rights.
› Develop innovative approaches to engage the
general public, all branches of government and
other opinion leaders (including the media) on
the critical human rights issues relating to the
HIV epidemic.
65.
To the media
›
Maintain and strengthen dialogue with
people living with HIV and members of key
populations. Support their efforts to advance
human rights, the rule of law, social change
and development in the context of the HIV
response.
› Refrain from inciting hatred against people living
with HIV and members of key populations, and
promote responsible reporting that advances
rights-based and evidence-informed responses
to HIV.
66.
To religious and traditional leaders
›
Maintain and strengthen dialogue with
people living with HIV and members of key
populations. Support their efforts to advance
human rights, the rule of law, social change
and development in the context of the HIV
response.
›
Refrain from inciting hatred against people
living with HIV and members of key
populations.
› Encourage an inclusive, protective and humane
attitude towards people living with HIV and
vulnerable and key populations.
p.
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Report on the Study of the African Commission on Human and Peoples’ Rights
I. INTRODUCTION
41.24 in 1988, which called on States to protect
people living with HIV against discrimination and
other coercive measures.19 This pronouncement
made by an international organisation under the
impulsion of civil society organisations and people
living with HIV set the tone for further articulation
of the importance of human rights in HIV-related
legal, policy and programmatic responses to the
epidemic at the global, regional and national levels.
GENERAL BACKGROUND
1. For more than three decades, the world has been
battling the HIV pandemic, which is estimated to
have claimed a total of 35 million lives globally,
primarily in Africa. In 2016, there were an estimated
25.7 million [23.0–28.8 million] people living with
HIV in Africa, representing nearly 70% of the
global total of 36.7 million people living with HIV
[30.8–42.9 million]. In 2016 alone, there were an
estimated 1.2 million [990,000–1.4 million] new
HIV infections and 730,000 [590,000–890,000]
deaths due to AIDS-related illness in Africa.15
4. At the global level, human rights norms enshrined
in the Universal Declaration on Human Rights
and a number of human rights treaties have
been interpreted to apply to HIV.20 In particular,
the norms in these treaties relating to nondiscrimination, liberty, security, equality, health,
education and free and fair trials have been
explicitly interpreted to apply to HIV through
general comments, concluding observations and
findings in communications.21
2. Although important progress has been made in
the response to HIV in the region—including a
decline in new HIV infections and a significant
increase in access to antiretroviral therapy16—
the epidemic remains the leading cause of death
in sub-Saharan Africa.17 Moreover, serious
social, legal and policy issues—such as stigma,
discrimination, gender inequality and other
negative norms and practices that affect people
vulnerable to HIV and hinder access to HIV
services—remain largely unchallenged.18
5. In Africa, the great majority of legal and human
rights developments relating to HIV have occurred
at the national level.
› First, human rights norms have been invoked
at the national level to ensure that people living
with HIV are protected against discrimination,
violence and coercion, including in accessing
HIV services. This has taken the form of
advocacy campaigns and court cases in response
to discrimination in areas such as employment,
housing and inheritance.22
3. Very early in the HIV epidemic, it was recognised
that the protection of human rights was essential
to ensuring that those living with and affected by
the epidemic would come forward to access HIVrelated prevention, treatment and care services. It
was also recognised that the protection, promotion
and fulfilment of human rights for all was
instrumental to addressing the factors that make
specific populations—such as women, children,
young people, sex workers, people who use drugs,
prisoners, and gay men and other men who
have sex with men—vulnerable to the epidemic.
Contrary to restrictive measures generally used
in the context of public health, the 41st World
Health Assembly adopted Resolution WHA
› Second, human rights norms have been used
to claim HIV-related health services and
entitlements, including access to evidenceinformed HIV-related prevention and
treatment services. This was illustrated by
the Treatment Action Campaign’s (TAC’s)
successful litigation against the South African
Government to secure access to antiretroviral
15
UNAIDS 2017 estimates.
Discrimination Against Women (CEDAW); the Convention on the Rights of the Child
16
UNAIDS 2017 estimates.
(CRC), Art. 2(1); and subsequent human rights treaties, such as the Convention on the
17
WHO, Global Health Estimates 2015.
18
See Global Commission, HIV and the Law, 64; and Cynthia I. Grossman et al., “Global
19
Rights of Persons with Disabilities.
21
Discrimination in Economic, Social and Cultural Rights (Art. 2, para. 2 of the
Society 16, Suppl. 2 (2013): 18881.
International Covenant on Economic, Social and Cultural Rights) (2009); and
World Health Assembly, Res. WHA 41.24, AIDS: Avoidance of Discrimination in
Committee on the Rights of the Child, General Comment No. 3 (2003): HIV/AIDS and
the Rights of the Child (13–31 January 2003).
Relation to HIV-Infected People and People with AIDS (13 May 1988).
20
p.
16
For example, please see: Committee on ESCR, General Comment No. 20: Non-
Action to Reduce HIV Stigma and Discrimination,” Journal of the International AIDS
Examples of treaties include the following: the International Covenant on Civil and
22
Lawrence Gostin, Global Health Law (Harvard: Harvard UP, 2014).
Political Rights (ICCPR), Art. 2; the International Covenant on Economic Social and
23
Minister of Health and Others v. Treatment Action Campaign and Others (No. 2)
Cultural Rights (ICESCR), Art. 2; the Convention on the Elimination of All Forms of
(CCT8/02) [2002], ZACC 15.
Report on the Study of the African Commission on Human and Peoples’ Rights
therapy for the prevention of mother-to-child
transmission (PMTCT).23
›
Third, human rights norms and approaches
have been used to demand specific actions to
address factors such as vulnerability to HIV
and barriers to HIV service access, including
for specific groups (such as those identified as
key populations). For example, in Odafe and
Others v. Attorney-General and Others, the
High Court of Nigeria relied on the African
Charter in finding that the denial of access
to HIV treatment for prisoners violated their
rights to life and dignity.24
and Cultural Rights—the African Commission
has further addressed HIV-related issues.28
8.
However,
the engagement of the African
Commission has not been commensurate with
the seriousness and diversity of human rights
challenges faced in Africa due to the HIV epidemic.
To provide a mechanism for intensifying its efforts
to advance human rights in the response to HIV,
the African Commission adopted Resolution
163 establishing the HIV Committee. The HIV
Committee has been afforded a broad promotion
and protection mandate that includes fact-finding
missions on allegations of human rights violations,
the publication of reports of key human rights
issues relating to HIV and the production of
recommendations to States to strengthen the
respect, protection and fulfilment of the rights of
people living with HIV and those at risk of (and
affected by) the epidemic in Africa.
6.
At the regional level, the African Commission’s
first pronouncement on HIV was in 2001 with
the adoption of Resolution ACHPR/Res.53
(XXIX) 01 on the HIV/AIDS Pandemic—
Threat Against Human Rights and Humanity
(Resolution 53). In this resolution, the African
Commission “declare[d] that the HIV/AIDS
pandemic is a human rights issue which is a
threat against humanity.”25 It subsequently called
on African governments and State Parties to the
Charter to allocate national resources that reflect
a determination to fight the spread of HIV, ensure
human rights protection against discrimination
for those living with HIV, provide support to
families for the care of those dying from AIDSrelated illness, devise educational public healthcare programmes, and carry out public awareness,
especially in view of free and voluntary HIV
testing and appropriate medical interventions.26
PROCESS AND METHODOLOGY OF
THIS STUDY
9.
At its 16th Extraordinary Session held in July
2014 in Kigali, Rwanda, the African Commission
adopted Resolution 290 on the Need to Conduct a
Study on HIV, the Law and Human Rights, which
tasked the HIV Committee with conducting a
study on “HIV, the Law and Human Rights in the
African Human Rights System: Key Challenges
and Opportunities for Rights-Based Responses
to HIV. The resolution is based on the mandate
of the HIV Committee to “recommend concrete
and effective strategies to better protect the rights
of people living with HIV and those at risk.”29
Recognizing the various legal challenges involved
in the HIV epidemic and the response in Africa,
the resolution seeks to use the study to analyse
“legislative/legal frameworks and human rights
[with a focus] on best practices and opportunities
for [strengthening] the promotion and protection
of human rights” relating to HIV.30 In line with
the mandate of the HIV Committee, the study
is expected to cover all people living with HIV
and those at risk, vulnerable to and affected by
7.
Further
to this resolution, the African
Commission adopted Resolution ACHPR/
Res.141 (XLIV) 08 on Access to Health and
Needed Medicines in Africa (Resolution 141)
and Resolution 260.27 Through the work and
reports of some of its subsidiary mechanisms—
such as the Special Rapporteur on Prisons,
Conditions of Detention and Policing in Africa
(Special Rapporteur on Prisons), the Special
Rapporteur on the Rights of Women in Africa
and the Working Group on Economic, Social
24
Odafe and Others v. Attorney-General and Others (2004), AHRLR 205 (NgHC 2004).
25
African Commission, Resolution 53 on the HIV/AIDS Pandemic—Threat Against
Human Rights and Humanity, African Commission Res.53 (XXIX) (23rd April to 7th
Resolution 260 on Involuntary Sterilisation and the Protection of Human Rights in
Access to HIV Services, ACHPR/Res.260 (LIV) (2013).
28
May 2001).
26
African Commission, Resolution 53 on the HIV/AIDS Pandemic.
27
See African Commission, Resolution 141 on Access to Health and Needed Medicines
in Africa, African Commission Res.141 (XLIV) (2008); and African Commission,
Sabelo Gumedze, “HIV/AIDS and Human Rights: The Role of the African Commission
on Human and Peoples’ Rights,” African Human Rights Law Journal 2 (2004): 181.
29
African Commission, Resolution 290 on the Need to Conduct a Study on HIV, the Law
and Human Rights, ACHPR/Res.290 (EXT.OS/XVI) (20–29 July 2014).
30
African Commission, Resolution 290 on the Need to Conduct a Study.
p.
17
Report on the Study of the African Commission on Human and Peoples’ Rights
HIV, including “women, children, sex workers,
migrants, men having sex with men, intravenous
drugs users and prisoners.”31
reference for the study was produced in October
2015. It served as a basis for a consultative session
during the 18th International Conference on AIDS
and STIs in Africa (ICASA), held in December
2015 in Harare, Zimbabwe. The consultative
session was attended by members of the African
Commission, expert members of the HIV
Committee, representatives from national AIDS
commissions, HIV programme implementers,
civil society organisations, people living with HIV,
human rights experts and representatives from key
populations (including sex workers and men who
have sex with men). Following the consultative
session, a first draft of the report was developed
and tabled for discussion and input from experts
and stakeholders at a 23 July 2016 meeting
during the 21st International AIDS Conference
in Durban, South Africa. The meeting in Durban
brought together HIV programme implementers,
members of the judiciary, people living with HIV,
women, young people, civil society organisations
and the UN. It enabled a good representation
of members of key populations to participate in
10. The development of the report was effectively
initiated in 2015 with the development of the
terms of reference. In light of this delay, the
African Commission adopted ACHPR/Res.308
(EXT.OS/ XVIII) 2015 on The Extension of
the Deadline for the Study on HIV, the Law and
Human Rights (Resolution 308), which prolonged
the period for undertaking the report by one
year.32 The process for developing this report was
remarkable for the extensive consultations that it
involved and the diversity of stakeholders engaged.
11. The terms of reference of the study were discussed
and amended during a joint meeting between
the HIV Committee and UNAIDS’ Eastern and
Southern Africa Regional Think Tank on HIV,
Health and Social Justice (the Think Tank) from
31 August to 1 September 2015, in Abidjan,
Côte d’Ivoire. A revised version of the terms of
31
African Commission, Resolution 163 on the Establishment of a Committee on the
Protection of the Rights of People Living With HIV (PLHIV) and Those at Risk,
p.
18
Vulnerable to and Affected by HIV, African Commission Res.163 (2010).
32
African Commission, Resolution 308 on the Extension of the Deadline for the Study
on HIV, the Law and Human Rights, ACHPR/Res.308 (EXT.OS/XVIII) (2015).
Report on the Study of the African Commission on Human and Peoples’ Rights
the study review and deliberations, including sex
workers, people who inject drugs, men who have
sex with men and transgender persons.
12. Further to the face-to-face consultative meetings,
the draft of the study was posted online for
public submissions for a period of two weeks.
Comments were received from individuals,
civil society organisations and international
institutions with expertise on human rights,
health and HIV. Through these consultations,
meetings and submissions, the HIV Committee
was able to engage and elicit the views of over 200
organisations and individuals working on HIV in
Africa and around the world.
13. This report is divided into six chapters and an annex:
› It begins with this introduction as Chapter I.
›
Chapter II presents a synopsis of the HIV
epidemic in Africa.
›
Chapter III provides an overview of global
African regional human rights norms applicable
to HIV.
› Chapter IV examines the extent to which legal
and institutional arrangements at the African
regional and sub-regional levels address HIVrelated human rights issues.
› Chapter V focuses on the key human rights
challenges impacting the HIV response in
Africa. It also provides an overview of good
practices on addressing these human rights
challenges.
› Chapter VI concludes the study with a summary
of its key findings and recommendations.
› The study is completed by an annex, which
provides questions and elements to guide both
State reporting under Article 62 of the African
Charter and other interactions with States
regarding HIV.
p.
19
Report on the Study of the African Commission on Human and Peoples’ Rights
I I . T H E H I V E P I D E M I C I N A F R I C A 33
1. More than 30 years into the AIDS epidemic, Africa
remains the region of the world most affected by
HIV.34 The HIV epidemic is also contributing to
high TB incidence and deaths in Africa: TB is the
leading cause of mortality among people living
with HIV in the region.35 With 275 incident TB
cases for every 100,000 people in 2015—almost
double the global estimate—the African region has
the most severe TB burden relative to population
in the world. Half of the countries with the highest
TB burden are in Africa, and nine countries—
Angola, the Democratic Republic of the Congo,
Ethiopia, Kenya, Mozambique, Nigeria, Somalia,
South Africa and Zimbabwe—are among the 30
countries with the highest burden of multi-drug
resistant TB. Countries in sub-Saharan Africa
accounted for approximately 75% of all deaths
from HIV-associated TB in 2015.36
Africa are generally more affected by HIV than
those in West and central Africa, and countries
in North Africa are among those with the
lowest HIV prevalence (see Figure 1). All four
countries in the world with HIV prevalence in
the adult population above 15% (also referred
to as “hyperendemic” countries) are in southern
Africa. With the exception of Equatorial Guinea,
all countries in West and central Africa have an
HIV prevalence of less than 5% in the adult
population aged 15–49 years (Figure 1).
4. Great differences in HIV prevalence and incidence
also exist within countries. In Kenya, 65% of all
new HIV infections in 2014 occurred in nine of
the 47 counties (see Figure 2). Similar trends are
reported across sub-Saharan Africa, with higher
HIV prevalence and incidence being concentrated
in specific parts of countries.
2. The impact of the HIV epidemic on families and
communities is significant in the region. High
HIV-related mortality among adults translates
into a high number of children orphaned by the
epidemic. In 2016, an estimated 13.7 million [11.4–
16 million] children in sub-Saharan Africa—83%
of the global total—had lost one or both parents
to AIDS-related illness.37 The epidemic also has
had important economic and social impacts. The
cost of caring for household members with AIDSrelated illness is high, and it is compounded by the
overall reduced family income that results because
of the inability to work due to illness. While
recent progress in access to HIV treatment on the
continent has helped alleviate the impacts of the
epidemic, its social and economic consequences
continue to be serious in communities where
treatment coverage remains low.
IMPORTANT BUT UNEQUAL PROGRESS
5. Significant progress against HIV has been made in
recent years in sub-Saharan Africa. The number
of people receiving antiretroviral therapy in the
region increased from fewer than 10,000 in 2000
to 13.8 million in 2016. The expanded access
to HIV treatment in the region is contributing
to reduced deaths from AIDS-related illness in
sub-Saharan Africa, which fell by 53% between
2005 and 2016. Countries that recorded the most
significant reductions in deaths from AIDS-related
illness include Rwanda (78%), Ethiopia (76%),
Burkina Faso (72%), Tanzania (72%), Kenya
(71%), Zimbabwe (70%), Botswana (70%), Eritrea
(69%), Zambia (67%) and Malawi (67%). 40
6. Coverage of programmes for PMTCT has increased
drastically, particularly in eastern and southern
Africa, where 89% of pregnant women living with
HIV were reported to receive effective antiretroviral
medicines for PMTCT in 2016. Consequently, in
DIVERSE BURDEN OF THE HIV EPIDEMIC
3.
The AIDS epidemic in Africa is far from
homogenous. Countries in eastern and southern
33
This chapter is adapted from Patrick Michael Eba, Righting Laws: An Appraisal of
Human Rights in the Context of HIV and Their Applicability to the Normative Content
34
p.
20
and Implementation of HIV-Specific Laws in sub-Saharan Africa (PhD diss., University
35
WHO, Global Tuberculosis Report, 2015 (Geneva: WHO, 2015), 8.
of KwaZulu-Natal, 2016).
36
WHO, Global Tuberculosis Report, 2015, 8.
“Global Health Observatory (GHO) Data,” WHO, accessed 28 December 2016, http://
37
UNAIDS 2017 estimates.
www.who.int/gho/hiv/en/.
40
UNAIDS 2017 estimates.
Report on the Study of the African Commission on Human and Peoples’ Rights
FIGURE 1: ESTIMATED HIV PREVALENCE (PERSONS AGED 15–49 YEARS) IN AFRICAN
COUNTRIES, 2016 38
No data
< 0.2%
0.2 – 0.6%
0.6 – 1.7%
> 1.7%
38
UNAIDS 2017 estimates.
p.
21
Report on the Study of the African Commission on Human and Peoples’ Rights
FIGURE 2: ESTIMATED NEW HIV INFECTIONS IN KENYA, 2014, BY COUNTY 39
39
p.
22
UNAIDS, On the Fast-Track to End AIDS by 2030: Focus on Locations and
Populations (Geneva: UNAIDS, 2015), 14.
Report on the Study of the African Commission on Human and Peoples’ Rights
some countries where PMTCT coverage is above
95%—such as Botswana, Namibia, South Africa
and Uganda—vertical HIV transmission rates
have been reduced to below 5%. In general, new
HIV infections in eastern and southern Africa have
dropped from 1.6 million [1.5–1.7 million] in 2000
to 790,000 [710,000–870,000] in 2016. 41
antiretroviral therapy than countries in West and
central Africa. In 2016, for instance, just 36% [25–
46%] of adults living with HIV in West and central
Africa were on antiretroviral therapy, compared
to 61% [49–69%] in eastern and southern Africa.
Only 22% [13–29%] of children below the age of
15 years living with HIV in West and central Africa
were on antiretroviral therapy in 2016 compared to
51% [37–63%] in eastern and southern Africa.44
7.
The keys to these advances have been the
commitment of governments, the critical role
played by civil society (including people living
with HIV), the reduced cost of HIV treatment
and international funding for the response to the
epidemic.42 Total resources available for in-country
HIV responses in low-income and middle-income
countries increased by 91% from 2006 to 2016.
While international resources increased 65% in
the same period, the trend has slowed: from 2010
to 2014, the international resources increased
by 11%, but from 2010 to 2016, it increased by
only 2%. Resource availability varies by region.
In eastern and southern Africa, for instance,
the international resource availability increased
by 93% from 2006 to 2016 while the domestic
resources increased by 130% over the same period.
In West and central Africa, international resources
increased by 60% and domestic resources by
77% for the same period, while in North Africa,
international resources increased by 29% and
domestic resources increased by 49%.
10.
According to a recent report by Médecins Sans
Frontières, the lower access to HIV treatment
in West and central Africa is due to a number
of factors. These include high stigma and
discrimination, weak health systems, inadequate
service delivery models, the limited role of civil
society, low prioritisation of HIV, lack of political
leadership and the delayed response to the needs of
people living with HIV in the context of recurrent
humanitarian crises in the region.45
11.
North Africa is the only region in Africa where
deaths from AIDS-related illness and new HIV
infections are increasing. Since 2010, new HIV
infections among adults have increased by 76%
in Egypt. Similarly, new HIV infections have
increased in Tunisia over the same period. The
limited access to antiretroviral therapy in the
region translates to growing numbers of deaths
from AIDS-related illness, with increases in Tunisia
and Egypt between 2010 and 2015.46
8.
Resource availability in eastern and southern
Africa mimics the global figures, showing a 1%
decrease from international sources from 2015 to
2016 and a 6% increase from domestic resources
over the same period.43 This calls on governments
in Africa to continue to step up their efforts to
increase domestic funding to expand access to HIV
prevention, treatment, care and support according
to their financing capacity.
POPULATIONS LEFT BEHIND IN THE
RESPONSE TO THE HIV EPIDEMIC
12. The impact of the HIV epidemic in Africa differs
among populations. In sub-Saharan Africa, young
women (aged 15–24 years) accounted for 28% of
new HIV infections among adults, and women
aged 15 years and older accounted for 56% of
new HIV infections among adults. There were
approximately 5,500 new HIV infections weekly
among young women in the region in 2016, double
the number among young men.47
9. Advances in the response to HIV in Africa have been
uneven, with significant differences between regions
and countries in terms of access to antiretroviral
therapy and reductions in new HIV infections. In
general, countries in eastern and southern Africa
are witnessing more robust progress in access to
41
UNAIDS 2017 estimates.
42
UNAIDS, Update: How Africa Turned AIDS Around (Geneva: UNAIDS, 2013).
43
Jennifer Kates et al., Financing the Response to HIV in Low- and Middle-Income
13. Adolescent girls and young women are less able to
negotiate condom use, and they have limited access
45
Africa are Being Left Out of the Global AIDS Response (Brussels: Médecins Sans
Countries: International Assistance from Donor Governments in 2015 (Menlo Park, Ca:
44
Médecins Sans Frontières, Out of Focus: How Millions of People in West and Central
Frontières, 2016).
The Henry J Kaiser Family Foundation, 2016), 5.
46
UNAIDS 2017 estimates.
UNAIDS 2017 estimates.
47
UNAIDS 2017 estimates.
p.
23
Report on the Study of the African Commission on Human and Peoples’ Rights
to HIV testing, modern contraception and family
planning. In Chad, Guinea, Mali, Mozambique
and Niger, one in 10 girls has a child before the age
of 15 years.48 Some 41% of girls in western and
central Africa—and 34% of girls in eastern and
southern Africa—are married as children.49 Child
marriage has been associated with higher exposure
to intimate partner violence and commercial
sexual exploitation. Women who are exposed to
intimate partner violence in some regions are 50%
more likely to acquire HIV than those who are not
exposed.50 Women and young girls living with HIV
in sub-Saharan Africa also are at increased risk of
other STIs, including the human papillomavirus
(HPV), which causes diseases that range from
benign lesions to invasive cancers. The prevalence
rate of HPV among women living with HIV is as
high as 80% in Zambia and 90–100% in Uganda.51
16.
Throughout Africa, HIV prevalence is higher
among prisoners and other incarcerated people
than it is among the general adult population. In
2016, for instance, there was an estimated HIV
prevalence of 35% among prisoners in Swaziland.
Similarly, HIV prevalence among prisoners in
2016 was 20% in Malawi and 27% in Zambia. In
2012, 40% of prisoners who were living with HIV
in Mauritania had a history of injecting drugs.58 In
South Africa, HIV prevalence is 2.4 times higher
among prisoners than it is among the general adult
population.59
17. Prisons often are overcrowded due to inappropriate,
ineffective and excessive criminal laws.
Overcrowding increases vulnerability to infections
such as HIV, TB and hepatitis.60 Prisoners also are
at risk of violence and denial or disruption of HIV
prevention and treatment, including access to harm
reduction services.61 Available data on HIV among
people who inject drugs in sub-Saharan Africa also
point to particularly high HIV prevalence among
these populations.62
14.
Regardless of the nature and level of the HIV
epidemic, data show that specific population
groups in all sub-Saharan African countries—
including prisoners, sex workers, gay men and
other men who have sex with men, and people
who inject drugs—are particularly impacted by the
epidemic.52 Also referred to as “key populations,”53
these groups experience higher HIV prevalence
and incidence and often have limited access to HIV
prevention, treatment and care services.54 Even in
high prevalence settings, HIV prevalence among
members of key populations is often higher than it
is among the remaining population. According to
UNAIDS, all 12 countries where HIV prevalence
among sex workers exceeds 20% are in subSaharan Africa.55
19.
Similarly, stigma and discrimination, violence,
men in western and central Africa is more than
14%, compared to less than 2% among the general
population.56 HIV prevalence among men who have
sex with men in North Africa is also high at 9% in
Tunisia and 6% in Morocco. Even in eastern and
southern Africa, the region with the highest HIV
prevalence in Africa, men who have sex with men face
a higher HIV burden: HIV prevalence among men
who have sex with men is over 33% in Lesotho, 17%
in Malawi and Mauritius, and 18% in Tanzania.57
negative gender and heteronormative constructs,
and criminal laws that affect members of key
populations (particularly sex workers, people who
inject drugs and gay men and other men who
have sex with men) have been shown to increase
vulnerability to HIV and limit access to HIV
services.65 For instance, harassment, violence
(including by police) and the denial of prevention
services (such as harm reduction programmes)
contribute to a higher vulnerability to HIV
UNFPA, Motherhood in Childhood: Facing the Challenge of Adolescent Pregnancy—
53
Gay men and other men who have sex with men, sex workers, transgender people,
The State of the World Populations (New York: UNFPA, 2013), 5.
people who inject drugs, and prisoners and other incarcerated people are considered
UNAIDS and the African Union, Empower Young Women and Adolescent Girls: Fast-
as the main key population groups. These populations often suffer from punitive laws
Tracking the End of the AIDS Epidemic in Africa (Geneva: UNAIDS, 2015).
or stigmatizing policies, and they are among the most likely to be exposed to HIV.
50
World Health Organization et al., Global and Regional Estimates.
Their engagement is critical to a successful HIV response everywhere—they are key to
51
UNAIDS, HPV, HIV and Cervical Cancer: Leveraging Synergies to Save Women’s Lives
49
24
most affected by HIV in Africa cannot be justified
only by biology or sexual practices. Gender
inequalities—including gender-based violence—
exacerbate the physiological vulnerability of
women and girls to HIV, and they block their
access to HIV services. Young people are denied
the information and freedom to make free and
informed decisions about their sexual health, with
most lacking the knowledge required to protect
themselves from HIV.64
15.
HIV prevalence among men who have sex with
48
p.
18. High HIV prevalence among all these populations
52
the epidemic and the response. UNAIDS, UNAIDS Terminology Guidelines, 31.
(Geneva; UNAIDS, 2016), 11.
54
UNAIDS, The Gap Report.
UNAIDS, The Gap Report, 26–48.
55
UNAIDS, The Gap Report, 45.
Report on the Study of the African Commission on Human and Peoples’ Rights
1
1.98
2.9
5.12
11.38
10.1
FIGURE 3: HIV PREVALENCE IN ADULTS AND KEY POPULATIONS IN AFRICA, 2012 63
.2
Tunisia
24.46
Guinea
4.19
1
Burkina
Faso
3.7
1.4
28.7
Senega l
1.1
50
.7
16.4
17.24
32.6
Nigeria
7.2
50.8
1.3
Uganda
6.2
DR Congo
51.6
Cote d’Ivoir
18.2
18.3
22.1
31.1
3
35
9.35
18.45
21.80
Morocco
31.77
10.28
Rwanda
14.66
2.9
49.5
18.45
21.80
Kenya
HIV prevalence among PWID
7.1
Zimbabwe
Mauritius
.7
Madagasc ar
South Africa
16.7
26
9.9
69.6
.3
.29
Country
17.3
HIV prevalence (15-49) in the general
population
.1
HIV prevalence among MSM
14.9
9.35
HIV prevalence among sex workers
Swaziland
56
UNAIDS, The Gap Report, 205.
61
UNAIDS, The Gap Report, 149–153.
57
UNAIDS, The Gap Report, 46.
62
UNAIDS, The Gap Report, 29.
58
UNAIDS, The Gap Report, 149.
63
UNAIDS, How Africa Turned AIDS Around, 9.
59
UNAIDS, The Gap Report, 150.
64
UNAIDS, Ending AIDS: Progress towards the 90–90–90 Targets (Geneva: UNAIDS,
60
Leonard S. Rubenstein et al., “HIV, Prisoners and Human Rights,” Lancet 388, no.
10050 (2016): 1202–1214.
2017).
65
WHO, Consolidated Guidelines on HIV Prevention.
p.
25
Report on the Study of the African Commission on Human and Peoples’ Rights
among people who inject drugs and their sexual
partners.66 Similarly, men who have sex with men
face serious barriers in accessing antiretroviral
therapy and other health-care services due to
discrimination in health-care settings, abuse, fear
of arrest and other negative consequences that
arise from the criminalisation of same-sex sexual
relations.67 In Botswana, Malawi and Namibia,
more than 80% of men who have sex with men
have not disclosed their same-sex sexual practices
to a health practitioner.68 This situation has
serious implications for providing information,
protection and quality health-care services for this
population because men who have sex with men
have different HIV risks than heterosexual men,
which suggests that the consistent association
between discrimination events and STI variables
is reflective of the role of stigma in the general
sexual health of men who have sex with men. For
instance, clinicians likely will not assess for anal
HPV infection or certain other STIs in men unless
they are aware that these men are at specific risk
for these infections.69
66
CONCLUSION
20.
This chapter shows that in spite of important
progress that has been made in the HIV response
in Africa, there are still critical challenges to our
ability to ensure that all regions and populations
benefit from increased access to HIV treatment
and reduced new HIV infections. Unequal progress
within and between regions has led to a variety of
HIV epidemics and their ensuing differentiated
impacts on countries, locations and populations
across Africa. Tailored responses are therefore
needed to focus on the particular challenges facing
specific populations and locations in the region.70
In particular, vulnerabilities and barriers—
including in law, policy and practices—that are
experienced by the populations most affected by
the HIV epidemic in each national context must
be identified and addressed. Effective measures are
needed to respond to stigma and discrimination
experienced by people living with, affected by and
vulnerable to HIV.
Ralf Jürgens et al., “People Who Use Drugs, HIV, and Human Rights,” The Lancet 376,
no. 9739 (2010): 475–485.
p.
26
67
WHO, Consolidated Guidelines on HIV Prevention.
68
H. Fay et al., “Stigma, Health Care Access, and HIV Knowledge Among Men Who Have
Sex with Men in Malawi, Namibia, and Botswana,” AIDS Behaviour 15, no. 6 (2011):
69
H Fay et al., “Stigma, Health Care Access, and HIV Knowledge.”
1088–1097.
70
UNAIDS, On the Fast-Track to End AIDS by 2030, 14.
Report on the Study of the African Commission on Human and Peoples’ Rights
I I I . G LO B A L A N D A F R I C A N
REGIONAL HUMAN RIGHTS NORMS
R E L AT I N G TO H I V
1.
Global and regional human rights instruments
contain key human rights principles essential to
effective responses to HIV. Global human rights
instruments include the following:
› the Universal Declaration of Human Rights;
›
the International Covenant on Economic,
Social and Cultural Rights;
› he International Covenant on Civil and Political
Rights;
› the International Convention on the Elimination
of All Forms of Racial Discrimination;
› the Convention on the Elimination of All Forms
of Discrimination Against Women;
71
AIDS and Human Rights Research Unit, Compendium of Key Documents.
72
Protocol to the African Charter on Human and Peoples’ Rights on the Rights of
Women in Africa, CAB/LEG/66.6 (2000).
› the Convention on the Rights of the Child;
› the Convention on the Rights of Persons with
Disabilities; and
›
the Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or
Punishment.
At the regional level, a number of key provisions
in the African Charter, the African Children’s
Charter and the Maputo Protocol also are relevant
to HIV.71 The Maputo Protocol includes explicit
provisions addressing HIV under Article 14 on
health and reproductive rights.72
p.
27
Report on the Study of the African Commission on Human and Peoples’ Rights
BOX: SELECTED AFRICAN REGIONAL AND SUB-REGIONAL INSTRUMENTS ON HIV
› Grand Bay (Mauritius) Declaration and Plan of Action (1999)
› Lomé Declaration on HIV/AIDS in Africa (2000)
› Abuja Declaration on HIV/AIDS, Tuberculosis and Other Infectious Diseases (2001)
› Maputo Declaration on HIV/AIDS, Tuberculosis, Malaria and Other Related Infectious Diseases (2003)
› Gaborone Declaration on a Roadmap towards Universal Access to Prevention, Treatment and Care (2005)
› Continental Framework for Harmonisation of Approaches among Member States and Integration of Policies
on Human Rights and People Infected and Affected by HIV/AIDS in Africa (2005)
› Brazzaville Commitment on Scaling Up towards Universal Access to HIV and AIDS Prevention, Treatment,
Care and Support in Africa by 2010 (2006)
› Abuja Call for Accelerated Action towards Universal Access to HIV and AIDS, Tuberculosis and Malaria
Services in Africa (2006)
› Africa’s Common Position to the UN General Assembly Special Session on HIV/AIDS (2006)
› African Union Roadmap on Shared Responsibility and Global Solidarity (2012)
› SADC Model Law on HIV/AIDS (2008)
› East African Community HIV and AIDS Prevention and Management Act (2012)
› Dakar Declaration on Key Populations in the Response to HIV and AIDS in ECOWAS Member States (2015)
73
74
UN General Assembly Special Session on HIV/AIDS, Res. S-26/2, Declaration of
75
the Human Rights Council, see “Publications and Documents on HIV and AIDS,”
UN General Assembly, Res. S-60/262, Political Declaration on HIV/AIDS (15 June
United Nations Human Rights Office of the High Commissioner, accessed 26 August
2006); UN General Assembly, Res.65/277, Political Declaration on HIV and AIDS:
Intensifying Our Efforts to Eliminate HIV and AIDS (10 June 2011); and UN General
2016, http://www.ohchr.org/EN/Issues/HIV/Pages/Documents.aspx.
76
Assembly, A-70/L.52, Political Declaration on HIV and AIDS: On the Fast-Track to
Accelerate the Fight against HIV and to End the AIDS Epidemic by 2030 (8 June
p.
28
For an overview of the resolutions on HIV of the Commission on Human Rights and
Commitment on HIV/AIDS (25–27 June 2001).
2016).
UNAIDS et al., International Guidelines on HIV/AIDS and Human Rights, 2006:
Consolidated Version (Geneva: UNAIDS, 2006), 10.
77
Following the elaboration of the International Guidelines in 1996, Guideline 6 on
“Access to HIV-Related Prevention and Treatment Goods, Services and Information”
Report on the Study of the African Commission on Human and Peoples’ Rights
2. In addition to binding instruments, a number of
5.
In general, human rights protections recognised
resolutions and similar documents address human
rights in the context of HIV. These include the
2011 Declaration of Commitments on HIV,73
the UN High-Level Meetings on HIV in 2006,
2011 and 2016,74 and the resolutions on HIV of
the UN Commission on Human Rights (and later
the UN Human Rights Council).75 Numerous
global guidelines and directives also have been
adopted on HIV and human rights. Chief among
these are the International Guidelines on HIV/
AIDS and Human Rights.76 These guidelines,
published by UNAIDS and the Office of the High
Commissioner on Human Rights (OHCHR),
articulate human rights norms and principles that
are applicable in the context of HIV, and that
provide specific recommendations to countries for
developing HIV-related laws, regulations, policies
and programmes that comply with human rights.77
In addition, the report of the Global Commission
on HIV and the Law, which was convened by the
United Nations Development Programme (UNDP)
on behalf of the UNAIDS Joint Programme,
articulates important human rights challenges that
need to be addressed in the response to HIV.78
under international and regional human rights
norms are relevant to HIV, including the following:
› the right to non-discrimination, equal protection
and equality before the law;
› the right to life;
› the right to the highest attainable standard of
physical and mental health;
› the right to liberty and security of person;
› the right to dignity and integrity of the person;
› the right to freedom of movement;
› the right to seek and enjoy asylum;
› the right to privacy;
› the right to freedom of opinion and expression;
›
the right to freely receive and impart
information;
› the right to freedom of association;
› the right to work;
› the right to marry and to found a family;
› the right to equal access to education;
› the right to an adequate standard of living;
›
the right to social security, assistance and
welfare;
› the right to share in scientific advancement and
its benefits;
› the right to participate in public and cultural
life; and
›
the right to be free from torture and cruel,
inhuman or degrading treatment or punishment.
3.
At
the regional level, several non-binding
instruments on HIV have been adopted by the
African Union, the African Commission, IGAD,
the EAC and the SADC (see below).
6. Under human rights law, States should refrain from
4.
The African Commission has recently adopted
two general comments pertinent to HIV. The first,
General Comments on Article 14(1)(d) and (e) of
the Protocol to the African Charter on Human and
Peoples’ Rights on the Rights of Women in Africa,
was adopted in 2012. It highlights the measures
that States should take to respect, protect, promote
and fulfil women’s rights to sexual and reproductive
health, and it addresses women’s rights in relation
to HIV. The second, General Comment No. 2 on
Article 14(1)(a), (b), (c) and (f) and Article 14(2)
(a) and (c) of the Protocol to the African Charter
on Human and Peoples’ Rights on the Rights of
Women in Africa was adopted in 2014, and it also
specifically addresses the human rights of women
living with HIV.79
78
violating these human rights.80 For instance, they
should not adopt discriminatory measures against
people living with HIV. Human rights norms
also obligate States to take effective measures to
prevent such abuses, including through legislative,
policy and educational and informational means.
In addition, States must ensure that accountability
measures are in place to monitor and evaluate
the effectiveness of preventative measures, and
they must take steps to ensure the improvement
of those measures. States also must ensure redress
when violations occur.
7. The specific needs of persons living with HIV
and other persons belonging to groups vulnerable
was revised during the Third International Consultation on HIV/AIDS and Human
Africa (2012); African Commission, General Comment No. 2 on Article 14(1)(a), (b), (c)
Rights convened by UNAIDS and OHCHR on 25–26 July 2002 in Geneva. See UNAIDS
and (f) and Article 14(2)(a) and (c) of the Protocol to the African Charter on Human
et al., International Guidelines, 11–12.
and Peoples’ Rights on the Rights of Women in Africa; and Charles G. Ngwena et al.,
“Background,” Global Commission on HIV and the Law, accessed 13 June 2017, http://
“Human Rights Advances in Women’s Reproductive Health in Africa,” International
www.hivlawcommission.org/index.php/about/overview.
79
See African Commission, General Comment on Article 14(1)(d) and (e) of the Protocol
to the African Charter on Human and Peoples’ Rights on the Rights of Women in
Journal of Gynaecology & Obstetrics 129 (2015): 184–187.
80
See UNAIDS et al., International Guidelines, 11–12; and Frans Viljoen, International
Human Rights Law in Africa (Oxford, UK: Oxford UP, 2012).
p.
29
Report on the Study of the African Commission on Human and Peoples’ Rights
to HIV are better addressed by ensuring their
meaningful participation in devising and
implementing programs and services.81 This
participatory process empowers individuals
and civil society to assert their rights and report
violations when they occur, and it enhances
accountability for the implementation of laws
and policies. International human rights bodies
have increasingly addressed the rights of persons
living with HIV and those most vulnerable to
HIV, including in areas such as health care,
employment, education and the context of
freedom of expression.
THE RIGHT TO HEALTH
10.
The right to health is widely recognised in
international and regional human rights instruments.
It is protected under the following Articles:
› Article 12 of the International Covenant on
Economic, Social and Cultural Rights;
› Articles 11 and 12 of the Convention on the
Elimination of all Forms of Discrimination
Against Women;
› Article 24 of the Convention on the Rights of
the Child;
› Article 25 of the Convention on the Rights of
Persons with Disabilities;
› Article 16 of the African Charter;
› Article 14 of the Maputo Protocol; and
› Article 14 of the African Children’s Charter.
8. In narrowly defined circumstances, States may
impose restrictions on some rights that are
provided under international and regional African
human rights law, provided that these restrictions
are necessary to achieve overriding goals, such as
public health, the rights of others, morality, public
order, the general welfare in a democratic society
and national security.82 Public health, for instance,
is often cited by States as a basis for restricting
human rights in the context of HIV, but many such
restrictions infringe on human rights. For example,
the right to privacy is violated through mandatory
testing and involuntary disclosure of people’s HIV
status, and the right to liberty of the person is
violated when HIV is used to justify deprivation of
liberty or segregation.83
UN human rights standards
11. The human right to health is recognised in
several UN instruments. Article 25(1) of the
Universal Declaration of Human Rights affirms
that “everyone has the right to a standard of
living adequate for the health of himself and of
his family, including food, clothing, housing and
medical care and necessary social services.” Article
12(1) of the International Covenant on Economic,
Social and Cultural Rights further recognises
“the right of everyone to the enjoyment of the
highest attainable standard of physical and mental
health.” The right to health is also recognised in
Article 5(e)(iv) of the International Convention
on the Elimination of All Forms of Racial
Discrimination of 1965, in Articles 11(1)(f) and 12
of the Convention on the Elimination of All Forms
of Discrimination against Women of 1979, and in
Article 24 of the Convention on the Rights of the
Child of 1989 (among others).
9. Below is a description of several key human rights
norms that are pertinent to HIV, including (where
possible) the interpretation of these norms in HIVrelated matters by global and regional African
human rights mechanisms. This chapter draws
on global human rights norms for two reasons.
First, African States have committed to global
human rights treaties by ratifying them. Second,
in terms of Article 61 of the African Charter, the
provisions of global treaties and their authoritative
interpretation—including by human rights
bodies—constitute applicable sources of law in the
African regional human rights system.84
81
Odetoyinbo Morolake et al., “Greater Involvement of People Living with HIV in Health
12. The right to health is the short form for the right to the
highest attainable standard of physical and mental
health. This includes the enjoyment of a variety of
facilities, goods, services and conditions necessary
for the realization of the highest attainable standard
of health. UN human rights bodies have stressed
that persons living with HIV and those vulnerable
to HIV must be guaranteed the right to health. In
83
Care,” Journal of the International AIDS Society 12, no. 1 (2009): 4.
p.
30
82
Viljoen, International Human Rights Law, 87 and 151.
For example, see Z v. Finland (1997), 25 EHRR 371; and Enhorn v. Sweden (2005), 41
EHRR 30.
84
See Article 61 of the African Charter.
Report on the Study of the African Commission on Human and Peoples’ Rights
particular, the Committee on Economic, Social and
Cultural Rights (Committee on ESCR) emphasises
in General Comment No. 14 on the Right to the
Highest Attainable Standard of Physical and
Mental Health, and later in its General Comment
22 on the Right to Sexual and Reproductive Health,
the linkages that exist between the right to health
and other human rights:
The right to health is closely related to and
dependent upon the realization of other
human rights . . . including the rights to food,
housing, work, education, human dignity, life,
non-discrimination, equality, the prohibition
against torture, privacy, access to information
and the freedoms of association, assembly
and movement. These and other rights and
freedoms address integral components of the
right to health.85
13. Also in General Comment No. 14, the Committee
on ESCR describes the essential elements of
the right to health as involving the availability,
accessibility, acceptability and quality of health
facilities, goods and services.86 Applied to HIV,
these elements relate to the following:
› Availability: States must ensure that there are
an adequate number of trained medical and
professional personnel, functioning health-care
facilities, services, goods and programs to serve
the population. This includes essential drugs, as
defined by the WHO Model List of Essential
Medicines, which includes antiretroviral
therapy for the treatment of HIV.
›
Accessibility: States must ensure that health
facilities and services are accessible to all,
especially the most marginalised. This includes
people living with HIV. Facilities and services
should be accessible both in law and in fact,
without discrimination on any prohibited
ground, including HIV status. There are various
kinds of accessibility:
» Physical accessibility: facilities and services
must be within safe and reasonable
geographical reach for all sections of the
85
population, especially persons belonging
to disadvantaged and marginalised groups.
This includes adequate access to buildings
for persons with disabilities.
» Economic accessibility: facilities and services
must be affordable for all through either
publicly or privately provided services.
Payment assistance must be based on the
principle of equity to ensure that impoverished
families and individuals do not bear a
disproportionate burden of health costs. This
includes affordable antiretroviral therapy.
»
Information
accessibility:
individuals
and groups must be able to seek, receive
and disseminate information and ideas
concerning sexual and reproductive health
issues generally, including information related
to HIV and groups vulnerable to HIV, and
for individuals to receive specific information
on their health status. Information related to
sexual and reproductive health—including
information on HIV—must be accessible,
evidence-based and not censored or
withheld. Such information must be provided
in a manner consistent with the needs of the
individual and the community, taking into
consideration, for example, age, gender,
language ability, educational level, disability,
sexual orientation and gender identity.
› Acceptability: health facilities, services and goods
must be culturally appropriate and consider the
needs of minorities, indigenous populations,
gender, sexual diversity and age groups. They
also must be designed to respect medical ethics,
such as confidentiality and informed consent,
including in the context of HIV testing. However,
this cannot be used to justify the refusal to provide
tailored facilities, goods, information and services
to specific groups.
›
Quality: health facilities, goods and services
must be of good quality, evidence-based,
scientifically and medically appropriate and up
to date. This requires trained and skilled health-
Committee on ESCR, General Comment No. 14 on The Right to the Highest
AttainableStandard of Health (2000). See also Committee on ESCR, General
Comment No. 22 on The Right to Sexual and Reproductive Health (2016).
86
As above.
p.
31
Report on the Study of the African Commission on Human and Peoples’ Rights
care personnel and scientifically approved and
unexpired drugs and equipment. The failure or
refusal to incorporate technological advances
and innovations in the provision of sexual and
reproductive health services, such as advances
in the treatment of HIV and AIDS, jeopardises
the quality of care.
evidence-informed, fact- and rights-based, nonjudgmental and understandable in content and
language. It also stipulates that content should
“address taboos and misconceptions relating
to sexual and reproductive health issues,
deconstruct men and women’s roles in society
and challenge traditions notions of masculinity
and femininity which perpetuate stereotypes
harmful to women’s health and well-being.”89
14.
General Comment No. 15 on the Right of the
Child to the Enjoyment of the Highest Standard of
Health, adopted by the Committee on the Rights
of the Child, has applied these norms to the right
to health of adolescents.87 General Comment No.
15 also stresses that States should provide health
services that are sensitive to the needs and human
rights of all adolescents.
›
Access to sexual and reproductive health
services: States Parties must guarantee
available, accessible, affordable, comprehensive
and quality HIV prevention and treatment
procedures that are evidence-informed and
women-centred— including female condoms,
microbicides, PMTCT and post-exposure
prophylaxis (PEP)—to all women independent
of a discriminatory assessment of risk.90
African human rights standards
15.
In the African regional human rights system,
Article 16 of the African Charter, Article 14 of
the Maputo Protocol and Article 14 of the African
Children’s Charter all discuss the right to health.
The African Commission has had the opportunity
to elaborate on the scope and content of these
provisions—including in relation to health and
HIV—through general comments, resolutions,
concluding observations, and case law.
›
Enabling legal and policy framework: States
Parties are obligated to create environments
that allow women to control their sexual and
reproductive choices, thus strengthening their
control over HIV prevention and protection.
A framework to create such an environment
must include (1) anti-discrimination legislation
that ensures women’s access to health services,91
(2) public health legislation that ensures the
provision of pre-and post-test counselling in all
cases,92 and (3) strict rules of data protection
and confidentiality.93
General comments
16. The first-ever general comment of the African
Commission was adopted in 2012 in relation to
Articles 14(1)(d) and (e) of the Maputo Protocol,
which set forth the right of women to selfprotection and to be protected from HIV infection,
as well as their right to be informed of their HIV
status and that of their partners, in accordance
with international standards and practices.88 In
it, the African Commission outlines the measures
that African States must adopt to ensure that the
realisation of Article 14(1)(d) and (e) of the Maputo
Protocol includes the following:
› Information and education: States Parties should
ensure that information and education, both in
and out of schools, on sexual and reproductive
rights (including HIV) is provided to women,
particularly adolescents and young women.
This requires States to ensure that content is
87
p.
32
›
Accountability and redress: States Parties
should ensure that laws and policies regarding
women’s rights related to HIV are appropriately
implemented and enforced.94
17.
The second general comment adopted by the
African Commission (General Comment No. 2)
deals with the remaining provisions of Article 14 of
the Maputo Protocol.95 In it, the African Commission
enjoins States to promote the right of women to
health care, including sexual and reproductive
health services. It particularly enjoins States to
ensure integration of family planning services with
HIV prevention services. The Commission further
UN Committee on the Rights of the Child, General Comment No. 15 on the Right of
93
African Commission, General Comment on Article 14(1)(d) and (e), paras. 39 and 44.
the Child to the Highest Attainable Standard of Health (Art. 24), Chapter IV, Section E
94
African Commission, General Comment on Article 14(1)(d) and (e), para. 34.
(2013).
95
African Commission, General Comment No. 2.
88
African Commission, General Comment on Article 14(1)(d) and (e).
96
African Commission, General Comment No. 2, para. 44.
89
African Commission, General Comment on Article 14(1)(d) and (e), paras. 27–28.
97
African Commission, General Comment No. 2, para. 47.
90
African Commission, General Comment on Article 14(1)(d) and (e), paras. 30 and 40.
98
African Commission, Resolution 141 on Access to Health.
91
African Commission, General Comment on Article 14(1)(d) and (e), paras. 33 and 35.
99
African Commission, Principles and Guidelines on the Implementation of Economic,
92
African Commission, General Comment on Article 14(1)(d) and (e), para. 38.
Social and Cultural Rights in the African Charter on Human and Peoples, para. 27,
Report on the Study of the African Commission on Human and Peoples’ Rights
urges States to take appropriate measures towards
eliminating stigma and discrimination in relation
to sexual and reproductive health.96 This broadly
covers HIV-related stigma and discrimination,
which often hinder women and girls from
seeking information and services in health-care
institutions. More importantly, the Commission
encourages States to adopt legislative measures and
administrative policies and procedures to ensure
that “no woman is forced because of her HIV
status, disability, ethnicity or any other situation,
to use specific contraceptive methods or undergo
sterilization or abortion.”97
fundamental rights guaranteed under the African
Charter.103 It condemns all forms of stigma
and discrimination in terms of access to, and
provision of, health services in the context of HIV,
and it emphasises that all forms of involuntary
sterilisation violate women’s rights to health.
Concluding observations
21.
In some of
its concluding observations, the
African Commission has drawn the attention of
States to gaps in their efforts to address the HIV
pandemic. In its response to the report of Gabon,
for instance, the African Commission recommends
that the Government strengthen ongoing HIV
sensitisation programmes, with a particular focus
on children and young people.104 In its concluding
observations to the report on Cameroon, the
African Commission urges the Government to
engage with relevant stakeholders with a view
to ensuring the adoption of laws and policies to
protect the rights of people living with HIV.105
Resolutions
18. In Resolution 141, the African Commission stresses
that “access to medicines forms an indispensable
part of the right to the highest attainable standard
of health.”98 This right to access medications
was also elaborated upon in the Principles and
Guidelines on the Implementation of Economic,
Social and Cultural Rights in the African Charter
on Human and Peoples’ Rights (Principles and
Guidelines), which directs State Parties to “adopt
and implement policies that ensure that members
of vulnerable and disadvantaged groups have
access to medicines.”99
22.
In one of its concluding observations to the
Government of Sudan, the African Commission
notes that while it is commendable that the
Government is making efforts to ensure access to
medical services and social security for everyone,
including vulnerable and marginalised groups,
the report fails to provide detailed information on
access to life-saving medication for people living
with HIV in the country.106
19.
In the Principles and Guidelines, the African
Commission also sets a target of 15% of the annual
budgets of State Parties to improve the health sector,
mandating that “an appropriate and adequate
portion of this amount must be put at the disposal
of the national authorities responsible for the fight
against malaria, HIV/AIDS, tuberculosis and other
related diseases.”100 This 15% budgetary target was
established in the Abuja Declaration.101 The African
Commission has followed up on this budgetary
requirement in several of their concluding
observations. The Principles and Guidelines also
define people living with or affected by HIV/AIDS
as a vulnerable group.102
20.
In Resolution 260, the African Commission
notes that forced sterilisation of HIV-positive
women violates their rights to equality and nondiscrimination, and that it also violates other
Case law
23.
While the African Commission has not dealt
directly with an HIV case, it has dealt with healthrelated issues in several communications.
24. In Purohit and Moore v. The Gambia, the African
Commission held in relation to Article 16 of the
African Charter that
enjoyment of the human right to health as
it is widely known is vital to all aspects of a
person’s life and well-being, and is crucial to
the realisation of all the other fundamental
human rights and freedoms. This right
includes the right to health facilities, access
http://www.achpr.org/files/instruments/economic-social-cultural/achpr_instr_guide_
draft_esc_rights_eng.pdf.
100
African Commission, Principles and Guidelines, para. 67(g).
101
Organization of African Unity, Abuja Declaration on HIV/AIDS, Tuberculosis and Other
Related Infectious Diseases, OAU/SPS/ABUJA/3 (24–27 April 2001).
102
African Commission, General Comment No. 3 on Article 4, para. 1(e).
103
African Commission, Resolution 260 on Involuntary Sterilisation and the Protection of
Human Rights in Access to HIV Services.
104
See African Commission, Concluding Observations and Recommendations on the
Initial and Combined Report of the Gabonese Republic on the Implementation of the
African Charter on Human and Peoples’ Rights (1986–2012) (2014).
105
African Commission, Concluding Observations on the 3rd Periodic Report of the
Republic of Cameroon (2014), para. XIV.
106
African Commission, Concluding Observations and Recommendations on the 4th and
5th Periodic Report of the Republic of Sudan (2012), para. 46.
p.
33
Report on the Study of the African Commission on Human and Peoples’ Rights
to goods and services to be guaranteed to all
without discrimination of any kind.107
guaranteed under the African Charter. For
instance, in Social and Economic Rights Action
Centre (SERAC) and Another v. Nigeria, the
African Commission held that “exploitation of
oil in a part of Nigeria by oil companies with
no regard to the health and environmental
consequences for local communities” constituted a
violation of various rights provisions of the African
Charter, including the right to life.111 Not only do
States have the obligation to ensure the health of
an individual, but they also have the additional
broad obligation of ensuring that communities
overall are healthy. This broader interpretation
of the right to health encompassing the right to
life is significant in holding African governments
accountable to ensure the provision of life-saving
medications in the context of HIV.
Although not HIV-specific, this is nevertheless
relevant
to
situations
of
HIV-related
discrimination in health-care settings. Even
more explicitly, in the Pretoria Declaration on
Economic, Social and Cultural Rights in Africa,
the African Commission states that “the right
to health in Article 16 of the Charter entails
among other things the following . . . education,
prevention and treatment of HIV/AIDS . . .”108
25. The right to access medications is elaborated on in
Free Legal Assistance Group, Lawyers’ Committee
for Human Rights, Union Interafricaine des
Droits de l’Homme, Les Témoins de Jehovah /
DRC.109 The African Commission found that the
Government of Zaire had violated Article 16 due
to the lack of basic services, including a shortage
of medication throughout the country.110
THE RIGHT TO BE FREE FROM
DISCRIMINATION
27.
Non-discrimination is a bedrock human rights
26. The African Commission has also affirmed the
principle found in international and regional
human rights treaties (including those covered in
link between the right to health and other rights
107
Communication 241/01, Purohit and Moore v. The Gambia, Sixteenth Annual Activity
111
Report, para. 80.
34
Center for Economic and Social Rights (CESR) v. Nigeria, para. 2.
108
Pretoria Declaration on Economic, Social and Cultural Rights in Africa (2004).
109
Communication 25/89-47/90-56/91-100/93, Committee for Human Rights, Union
2014). The People Living with HIV Stigma Index provides a tool that measures and
Interafricaine des Droits de l’Homme, Les Témoins de Jehovah/DRC (1996).
detects changing trends in relation to stigma and discrimination experienced by
Communication 25/89-47/90-56/91-100/93, Committee for Human Rights, Union
people living with HIV. It aims to address stigma relating to HIV while also advocating
Interafricaine des Droits de l’Homme, Les Témoins de Jehovah/DRC, para. 47.
on the key barriers and issues perpetuating stigma, which is a significant obstacle to
110
p.
Communication 155/96, Social and Economic Rights Action Center (SERAC) and
112
UNAIDS, Reduction of HIV-Related Stigma and Discrimination (Geneva: UNAIDS,
Report on the Study of the African Commission on Human and Peoples’ Rights
this document) and in national constitutions and
other laws. The right to be free from discrimination
must be protected regardless of resource and other
constraints. This is critical to the realization of the
right to health and other rights, including in the
context of HIV. Under international and regional
human rights law, not only must States refrain from
discrimination on the basis of HIV or AIDS status,
but they must also take effective measures to prevent
this discrimination, including legislative, policy
and educational measures to prohibit and counter
stigma and discrimination related to HIV and
AIDS. Addressing HIV-related stigma is important,
as discrimination is often based on stigmatizing
attitudes and prejudice about populations,
behaviours, practices, sex, illness and death.112
urged States to prohibit discrimination based on
seropositive status, and to take steps to ensure that
people living with HIV have non-discriminatory
access to reproductive health services. States also
have an obligation to take effective measures to
counter stigma and discrimination related to the
HIV epidemic.
29. States are obligated to ensure non-discrimination in
access to health care and the underlying determinants
of health. This is an immediate obligation for all
States, regardless of resources, because “many
measures, such as most strategies and programmes
designed to eliminate health-related discrimination,
can be pursued with minimum resource
implications through the adoption, modification
or abrogation of legislation or the dissemination
of information.”117 Under international law, States
must prohibit discrimination in access to health care
and the underlying determinants of health, as well
as the means and entitlements to their procurement.
The Committee on ESCR also emphasises the need
for equality of access to health care and healthcare services.118 The prohibition on discrimination
applies to people living with HIV and to groups that
are particularly vulnerable to HIV, including young
people, sex workers, gay men and other men who
have sex with men and people who inject drugs.
UN human rights standards
28. While no UN treaty explicitly lists HIV status as a
protected class for the purpose of discrimination,
the general provisions on non-discrimination found
in UN treaties have consistently and explicitly
stated that health status, including HIV status, is a
prohibited ground of discrimination. For example,
the Committee on ESCR’s General Comments Nos.
14, 20 and 22—on health, non-discrimination, and
sexual and reproductive health, respectively—have
noted over the past 15 years that discrimination
is prohibited on the basis of race, colour, sex,
language, religion, political or other opinion,
national or social origin, property, birth, physical
or mental disability, health status (including HIV
and AIDS), sexual orientation and civil, political,
social or other status.113 The Committee on the
Rights of the Child, which monitors compliance
with the Convention on the Rights of the Child,
prohibits discrimination against children affected
by HIV, including children who have been
infected.114 The Committee on the Elimination
of Discrimination against Women (CEDAW
Committee) does the same with regards to women,
calling on States to take measures to prohibit and
prevent discrimination against women living with
HIV.115 UN human rights bodies have recognised
that discriminatory laws and practices can hamper
the HIV response, such as when HIV status serves
as the basis for differential treatment.116 They have
113
African human rights standards
30.
People living with HIV are entitled to equality
and non-discrimination. The prohibition of
discrimination is guaranteed under all main African
human rights treaties. The African Commission has
stated that Articles 2 and 3 of the African Charter,
which relate to equality and non-discrimination,
are considered fundamental and linked to the
enjoyment of other rights.119 It notes that
Article 2 lays down a principle that is essential to
the spirit of the African Charter and is therefore
necessary in eradicating discrimination in all its
guises, while Article 3 is important because it
guarantees fair and just treatment of individuals
within a legal system of a given country. . . . these
provisions are non-derogable and therefore
must be respected in all circumstances in order
HIV treatment, prevention, care and support. See “http://www.stigmaindex.org.
116
Committee on ESCR, General Comment No. 20, para. 33.
Committee on ESCR, General Comment No. 14 on the Right to the Highest Attainable
117
Committee on ESCR, General Comment No. 20; and Committee on ESCR, General
Standard of Health, Art. 12 (11 August 2000).
114
Committee on the Rights of Children, General Comment No. 3.
115
CEDAW Committee, General Recommendation No. 15 on Avoidance of Discrimination
against Women in National Strategies for the Prevention and Control of Acquired
Comment No. 22.
118
Committee on ESCR, General Comment No. 20; Committee on ESCR, General
Comment No. 22; and Committee on ESCR, General Comment No. 14.
119
Christof Heyns, “Civil and Political Rights in the African Charter,” in The African
Immunodeficiency Syndrome (AIDS) (1990); and CEDAW, General Recommendation
Charter on Human and Peoples’ Rights: The System in Practice, 1986-2000, eds. M.
No. 24 on Article 12 of the Convention (Women and Health) (1999).
Evans and R. Murray (Cambridge UP, 2002), 145–147.
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Report on the Study of the African Commission on Human and Peoples’ Rights
for anyone to enjoy all the other rights provided
for under the African Charter.120
orientation, gender identity, disability (including
psychosocial and intellectual disability), health
status, economic or indigenous status, reason
for which one is detained (including accusations
of political offences or terrorist acts), asylumseekers, refugees or others under international
protection, or any other status or adverse
distinction, and including those marginalised or
made susceptible on bases such as those above.123
The African Commission has explained the
importance and breadth of Articles 2 and 3 on
various occasions, and it has noted their application
to a range of persons.
General comments
31. The first General Comment of
the African
Commission recognises HIV status as a prohibited
grounds of discrimination:
34. General Comment 1 of the African Commission
notes that the right to be informed of one’s health
status is applicable to all women, including women
living with HIV and those vulnerable to HIV (such
as young and adolescent women, women who
engage in sex work, women who use drugs, migrant
women, indigenous women, detained women, and
women with physical and mental disabilities).124
The General Comment further recognises that an
According to the African Commission there
are multiple forms of discrimination based on
various grounds such as: race, sex, sexuality,
sexual orientation, age, pregnancy, marital
status, HIV status, social and economic status,
disability, harmful customary practices and/or
religion.121
32. The African Commission recognises that vulnerable
and disadvantaged groups face significant
impediments to their enjoyment of economic,
social and cultural rights—including their right
to health—and that these groups include persons
living with HIV and other persons vulnerable to
HIV, including women, children, detainees, and
lesbian, gay, bisexual, transgendered persons. Like
the UN System, the African System also recognises
intersectional or multiple bases of discrimination
and recommends that States take steps to combat
such discrimination.122
enabling legal and policy framework is
intrinsically linked to women’s rights to equality,
non-discrimination, and self-protection. . . . States
Parties have an obligation to create an enabling
supportive, legal and social environment to
allowing to control their sexual and reproductive
choices and thus to strengthen control over HIV
prevention and protection choices.125
It also calls on State Parties to ensure that
health workers are not allowed, on the basis of
religion or conscience, to deny access to sexual
and reproductive health services to women as
highlighted in the document.126
33. Most recently, the African Commission has issued
a non-exhaustive list of grounds for discrimination
in its General Comment No. 4 on the Right to
Redress for Victims of Torture and Other Cruel,
Inhuman or Degrading Punishment or Treatment.
The list explicitly includes health status and other
statuses of marginalised groups vulnerable to the
HIV and AIDS, most notably because of sexual
orientation and gender identity:
35. In particular, the first General Comment calls
on State Parties to enact anti-discrimination
legislation to address discrimination, stigma,
prejudices and practices related to HIV and other
STIs that perpetuate and heighten risk to HIV
and related rights abuses among women. Where
discriminatory laws and policies exist, States must
take immediate action to remove the legal and
policy barriers that hinder access to sexual and
reproductive health services for women.127 For
example, General Comment No. 2 notes that
certain groups of women, such as women living
These include race, colour, ethnicity, age,
religious belief or affiliation, political or other
opinion, national or social origin, gender, sexual
p.
36
125
African Commission, General Comment No. 1, para. 33.
120
Communication 241/01, Purohit and Moore v. The Gambia, para. 49.
126
African Commission, General Comment No. 1, para. 31.
121
African Commission, General Comment No. 1, para. 4.
127
African Commission, General Comment No. 1, para. 35.
122
African Commission, Principles and Guidelines.
128
African Commission, General Comment No. 1, para. 47.
123
African Commission, General Comment No. 4 on the African Charter on Human and
129
African Commission, General Comment No. 1, para. 24.
Peoples’ Rights: The Right to Redress for Victims of Torture and Other Cruel, Inhuman
130
Lee, “African Commission Condemns Coerced Sterilisation.”
or Degrading Punishment or Treatment, Art. 5, para. 20.
131
African Commission, Resolution 346 on the Right to Education in Africa, ACHPR/
124
African Commission, General Comment No. 1, para. 15.
Res.346 (LVIII) (2016).
Report on the Study of the African Commission on Human and Peoples’ Rights
with HIV, may be subjected to coercive practices
(including forced sterilization or abortion) because
of their status, and it further calls on States to
ensure that necessary laws and policies are in
place to ensure that no woman is forced into such
a procedure.128 It also refers to State obligations
to eliminate stereotypes that are harmful to
women’s health, including conventional notions
of masculinity and femininity and the role of
women in society.129
HIV explicitly, it is relevant to HIV rights under
the African system because the lesbian, gay,
bisexual, transsexual and intersex (LGBTI)
population is particularly prone to discrimination
in education and health care, both of which affect
HIV outcomes.132
38.
In its Principles and Guidelines, the African
Commission also recommends that States “review
and reform public health legislation and criminal
laws and correctional systems to ensure they
adequately address the public health issues raised
by epidemic, endemic, occupational and other
diseases including in particular malaria and HIV/
AIDS, and tuberculosis. . . .”133 This includes the
range of discriminatory criminal laws that directly
and/or indirectly impact the HIV response.
Resolutions
36.
The African Commission has found practices
or acts against persons living with HIV or those
belonging to groups vulnerable to HIV to be
discriminatory. In Resolution 260, the African
Commission notes that forced sterilisation of HIVpositive women violates women’s rights to equality
and non-discrimination, and that it violates other
fundamental rights guaranteed under the African
Charter.130 It condemns all forms of stigma and
discrimination in terms of access to, and the
provision of, health services in the context of HIV,
and it emphasises that all forms of involuntary
sterilisation violate a woman’s right to health.
In relation to children, the African Commission
issued Resolution ACHPR/Res.346 (LVIII) 2016
on the Right to Education in Africa (Resolution
346), which calls on States to “prohibit and
prevent all forms of discrimination in education
against children with HIV/AIDS based on their
real or perceived status.”131 These resolutions
tend to draw the attention of States to important
human rights issues in the context of HIV that
warrant an urgent response.
37.
The African Commission has also addressed the
connection between violence and discrimination
in Resolution 275. This Resolution expresses the
African Commission’s concern at acts of violence,
discrimination and other human rights violations
against persons on the basis of their real or
perceived sexual orientation or gender identity.
The Resolution confirms that such acts violate
several rights, including the right to be free from
discrimination and the right to equal protection of
the law. While Resolution 275 does not mention
132
African Commission, Resolution 275 on Protection against Violence and other Human
Concluding observations
39.
The
African Commission has also made
recommendations through its State reporting
processes on State obligations to ensure the
protection of persons living with HIV and those
vulnerable to HIV and, further, to guarantee
non-discrimination. In its fifth periodic review of
Uganda, the African Commission recommends
under its “Non-discrimination and Equality”
section that Uganda “strengthen its legal
framework for the protection of people living
with HIV to discourage HIV-related human
rights violations.”134 It calls on Nigeria to repeal
a law criminalising homosexuality, noting that it
“has the potential to engender violence against
persons on grounds of their actual or imputed
sexual orientation, and also to drive this group of
persons vulnerable to HIV/AIDS underground,
thereby creating an environment which makes
it impossible to effectively address the HIV
pandemic in the State.”135 It also recommends that
Botswana reform a law that requires minors to be
accompanied by their parents when getting tested
for HIV.136 With regard to one of its concluding
observations on the report of Cameroon, the
African Commission urges the Government to
engage with relevant stakeholders with a view to
ensuring the adoption of laws and policies that
protect the rights of people living with HIV.137
Rights Violations against Persons on the Basis of their Real or Imputed Sexual
Periodic Report of the Federal Republic of Nigeria on the Implementation of the
Orientation or Gender Identity (2014).
133
African Commission, Principles and Guidelines.
134
African Commission, Concluding Observations and Recommendations on the 5th
Periodic State Report of the Republic of Uganda (2010–2012) (2015), para. 14.
135
African Commission, Concluding Observations and Recommendations on the 5th
African Charter on Human and Peoples’ Rights (2011–2014) (2015), para. 81.
136
African Commission, Concluding Observations and Recommendations on the Initial
Periodic Report of the Republic of Botswana (2010), para. 68.
137
African Commission, Concluding Observations on the 3rd Periodic Report of the
Republic of Cameroon, para. XIV.
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Report on the Study of the African Commission on Human and Peoples’ Rights
Case law
THE RIGHTS TO LIBERTY AND PRIVACY
40.
In Legal Resources Foundation v. Zambia, the
African Commission noted that
43.
The rights to liberty and privacy include the
protection of confidentiality, informed consent,
autonomy and more. These rights are protected
in regional and international human rights
treaties, and they encompass decisional, physical
and informational protections of privacy. In the
context of health care, decisional privacy affirms
the human right to make health care choices
without the intervention of others, including
family members or the State, and it supports
autonomy. Physical privacy affirms the right of
individuals to allow or deny providers the right to
examine or treat them, ensuring that treatment
requires informed consent. Informational privacy
underpins the issues of confidentiality, which is
the duty of health workers and others who handle
private medical or health information about
patients in a way that keeps it secret or private from
others (except the patient). Protection of these
rights is particularly important for patients seeking
diagnosis and treatment of illnesses such as HIV
because of associated sensitivities and stigma.
the right to equality is very important. It means
that citizens should expect to be treated fairly
and justly within the legal system and be assured
of equal treatment before the law and equal
enjoyment of the rights available to all other
citizens. The right to equality is important for a
second reason. Equality or the lack of it affects
the capacity of one to enjoy many other rights.138
41.
In Good v. Republic of Botswana, the African
Commission described the importance and breadth
of the principle of non-discrimination, which it said
“guarantees that those in the same circumstances
are dealt with equally in law and in practice.”139 This
was in keeping with its decision on Communication
245/02 Zimbabwe Human Rights NGO Forum
v. Zimbabwe, in which the African Commission
observed that principles of equality and nondiscrimination apply to all persons:
Together with equality before the law and
equal protection of the law, the principle of
non-discrimination provided under Article 2
of the Charter provides the foundation for the
enjoyment of all human rights. . . . The aim of
this principle is to ensure equality of treatment
for individuals irrespective of nationality, sex,
age or sexual orientation.140
UN human rights standards
44.
The right to privacy includes the right of
individuals to make informed decisions about their
bodies and to be free from coercion, discrimination
and violence.141 Interference with the exercise of
sexual and reproductive autonomy also may reflect
multiple forms of discrimination, violate numerous
human rights, constitute forms of violence and
even rise to the level of inhuman and degrading
treatment, as is the case in the context of the forced
sterilization of HIV-positive women.
42.
These interpretations are crucial in addressing
the HIV-related stigma and discrimination that is
pervasive in many African countries. In particular,
they can serve as a bulwark of protection in the
context of HIV for vulnerable and disadvantaged
groups such as women, children, prisoners, persons
with disabilities, and sexual and gender minorities.
Confidentiality
45.
In the context of health care (including HIV-
related care), this right places an obligation on those
who have access to personal information to ensure
that such information is not shared with third
parties, including the partners, family or friends of
patients, without the full and informed consent of
the Child, General Comment No. 15 (2013) on the Right of the Child to the Enjoyment
of the Highest Attainable Standard of Health, Art. 24 (17 April 2013).
138
Communication 211/98 Legal Resources Foundation v. Zambia, para. 63.
139
Communication 313/05, Kenneth Good v. Republic of Botswana, Twenty-eighth
that specifically outlined a number of recommendations regarding the use of both
Activity Report, para. 218.
HIV-specific criminal laws and general laws by States to punish HIV exposure, non-
Communication 245/02, Zimbabwe Human Rights NGO Forum v. Zimbabwe,
disclosure and transmission. These included calling on States to “repeal HIV-specific
Twentieth Activity Report, para. 169.
criminal laws, laws directly mandating disclosure of HIV status, and other laws
United Nations International Conference on Population and Development, Programme
which are counterproductive to HIV prevention, treatment, care and support efforts,
of Action (1994), para. 4.1; United Nations, Convention on the Rights of Persons with
or which violate the human rights of people living with HIV and other vulnerable
Disabilities, Arts. 3 and 25, A/RES/61/106; and CEDAW, General Recommendation No.
groups,” and to apply general criminal law “only to the intentional transmission
24 on Article 12 of the Convention (Women and Health) (1999), para. 31(e).
of HIV, and audit the application of general criminal law to ensure it is not used
CEDAW, General Recommendation No. 15; Committee on ESCR, General Comment
inappropriately in the context of HIV.” UNAIDS, Policy Brief: Criminalization of HIV
No. 22; CEDAW, General Recommendation No. 24; and Committee on the Rights of
Transmission (Geneva: UNAIDS, 2008).
140
141
142
p.
38
143
For example, UNAIDS and the UNDP issued a more detailed policy brief in 2008
Report on the Study of the African Commission on Human and Peoples’ Rights
the patient. Women are particularly vulnerable to
personal harm or discrimination from breaches in
medical confidentiality, particularly when domestic
violence, STIs (including HIV) or predisposition
testing are involved. Under international human
rights standards, States have an obligation to
ensure legal and policy guarantees that protect
confidentiality in HIV-related services.142
46.
In terms of
laws that mandate HIV status
disclosure, UN human rights bodies and agencies
have consistently condemned the criminalization
of HIV.143 In 2010, the UN Special Rapporteur
on the Right to Health recognised that the
criminalization of unintentional HIV transmission,
exposure and non-disclosure is a violation of the
right to health, calling on States
to immediately repeal laws criminalizing the
unintentional transmission of or exposure to
HIV, and to reconsider the use of specific laws
criminalizing intentional transmission of HIV,
as domestic laws of the majority of States
already contain provisions which allow for
prosecution of these exceptional cases.144
exercise their autonomy. This includes providing
counselling on the risks, benefits and alternatives to
treatment that is understandable to the patient.148
48. The UN Special Rapporteur on Right of Everyone
to the Enjoyment of the Highest Attainable Standard
of Physical and Mental Health stresses that
informed consent is not mere acceptance of
a medical intervention, but a voluntary and
sufficiently informed decision, protecting the
right of the patient to be involved in medical
decision-making, and assigning associated duties
and obligations to health-care providers. Its
ethical and legal normative justifications stem
from its promotion of patient autonomy, selfdetermination, bodily integrity and well-being.149
49. States have an obligation to take measures to ensure
that third parties (including health-care providers)
do not interfere with the right to autonomy. States
should also abolish laws, policies and practices that
interfere with an individual’s right to autonomous
decision-making.150
50. UN human rights bodies have recognised that some
groups are particularly vulnerable to violations
of the right to informed consent. This includes
persons living with and vulnerable to HIV (such
as children, women, persons with disabilities, sex
workers, transgender people, prisoners and persons
who use drugs). States have an obligation to take
particular measures to protect these vulnerable
groups against violations of informed consent.151
Infor med consent
47. Informed consent to medical procedures is derived
from the rights to privacy, liberty, security, dignity,
health and protection against cruel, inhuman
and degrading treatment that are provided
under global and regional human rights law. In
the context of HIV, informed consent to HIV
testing and treatment involves two complementary
elements: 1) access to information and knowledge,
and 2) full agreement.145 A person’s informed
consent to a medical procedure (such as HIV
testing) therefore requires that the person be
provided with full information and knowledge,146
that they understand the information, and that
they fully and freely agree to undergo the HIV
test.147 In order to fulfil this principle, States have
an obligation to provide individuals with access
to information and services that enable them to
144
51.
The Committee on the Rights of the Child, for
example, has recognised that adolescents face
formidable barriers in exercising their autonomy
in the context of health care, and that this has a
significant impact on their health and human rights.
The Committee has recommended that States
review and consider allowing children to consent
to certain medical treatments and interventions
United Nations General Assembly, Report of the Special Rapporteur on the Right of
Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental
149
Health, A/HRC/14/20 (27 April 2010).
145
146
147
148
UN General Assembly, Special Rapporteur on the Right of Everyone to the Enjoyment
of the Highest Attainable Standard of Physical and Mental Health, A/HRC/22/53,
Kitty Grant et al., Protecting Rights: Litigating Cases of HIV Testing and Confidentiality
2013.
of Status (SALC, 2012), 11.
150
CEDAW, General Recommendation No. 24.
HIV testing is recognised as a medical procedure. See C v. Minister of Correctional
151
UN General Assembly, Special Rapporteur on the Right of Everyone to the Enjoyment
Services, 1996 (4) SA 292 (T).
of the Highest Attainable Standard of Physical and Mental Health, A/HRC/22/53,
The High Court of South Africa concluded that failure to provide pre-test counselling
2013; CEDAW, General Recommendation No. 24; Committee on the Rights of Persons
was an unlawful “deviation from the accepted norm of informed consent.” See C v.
with Disabilities, General Comment No. 3 on Women and Girls with Disabilities (Art.
Minister of Correctional Services.
6) (2016); Committee on the Rights of Persons with Disabilities, General Comment
CEDAW, General Recommendation No. 24; Committee on ESCR, General Comment
No. 1 on Equal Recognition before the Law (Art. 12) (2014); and Committee on ESCR,
No. 22.
General Comment No. 22.
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Report on the Study of the African Commission on Human and Peoples’ Rights
without the permission of a parent, caregiver
or guardian, such as HIV testing and sexual
and reproductive health services, including
education and guidance on sexual health,
contraception and safe abortion.152
with international standards, without coercion,
and should be primarily aimed at preventing
harm to one’s health. Caution should be
exercised in relation to the conditions and
environments under which the right to be
informed on the health status of one’s partner
may be exercised, in particular, where the
revealing of a partner’s health status may result
in negative consequences such as harassment,
abandonment and violence.155
African human rights standards
52. The African human rights system has addressed
issues concerning confidentiality and informed
consent explicitly in the context of HIV in two
general comments.
It also notes that
53.
According to the African Commission’s General
Comment No. 2 on the Maputo Protocol, States
have an obligation to take measures to
prevent third parties from interfering with the
enjoyment of women’s sexual and reproductive
rights. Particular attention must be given to
prevention, as regards the interference of third
parties concerning the rights of vulnerable
groups such as adolescent girls, women with
disabilities, women living with HIV and women
in situations of conflict. The obligation entails
the formulation of standards and guidelines
containing the precision that the consent and
involvement of third parties, including but
not limited to, parents, guardians, spouses and
partners, is not required when adult women and
adolescent girls want to access family planning/
contraception and safe abortion services in
cases provided for in the Protocol.153
while disclosure should be encouraged, there
should be no requirement to reveal one’s HIV
status or other information related to one’s
health status. In the context of HIV, health-care
workers should be authorised, without being
obliged to, decide, depending on the nature of
the case and according to ethical considerations,
whether to inform a patient’s sexual partners of
his or her HIV-positive status.156
55. The first General Comment also requires States
to create an enabling legal and policy framework,
including on counselling and confidentiality.
States Parties have an obligation to create an
enabling supportive, legal and social environment
that allows women to control their sexual and
reproductive choices and thus strengthen control
over HIV prevention and protection choices. Such
an environment includes public health legislation
that ensures pre- and post-test counselling is
provided in all cases.157 States Parties also are
obligated to ensure that strict rules for data
protection and confidentiality apply, and that
data are protected from unauthorised collection,
use or disclosure. This includes creating “safe
and enabling conditions through legal, policy,
regulatory and programmatic measures that
create positive conditions for informed disclosure
and lawful notification of one’s health status and
the health status of one’s partner.”158 In addition,
General Comment No. 1 notes that States
Parties should provide training for health-care
workers on non-discrimination, confidentiality
and respect for dignity, autonomy and informed
54. The General Comment No. 1 states that the right
to be informed on one’s health status must not only
encompass knowing one’s HIV status, but that it
should also include pre-test counselling (which
enables women to make a decision based on
informed consent before taking the test) and posttest counselling services (on preventative measures
or available treatment, depending on the outcome
of the HIV test).154 In relation to the disclosure
of a person’s HIV status to partners, the General
Comment clarifies that
information on a partner’s health status must
be obtained with informed consent in line
p.
40
152
UN Committee on the Rights of the Child, General Comment No. 15.
156
African Commission, General Comment No. 1, para. 19.
153
African Commission, General Comment No. 2, para. 42.
157
African Commission, General Comment No. 1, para. 38.
154
African Commission, General Comment No. 1, para. 14.
158
African Commission, General Comment No. 1, paras. 45.
155
African Commission, General Comment No. 1, paras. 16 and 17.
159
African Commission, General Comment No. 1, para. 41.
Report on the Study of the African Commission on Human and Peoples’ Rights
consent in the context of sexual and reproductive
health services for women.159
56.
Both General Comments No. 1 and No. 2
recommend that HIV testing should not be used
as a condition for access to other health services,
including treatment, contraception, abortion,
medical examination, pre- and post-natal
services or any other reproductive health care.
Furthermore, positive test results should not be a
basis or pretext for the use of coercive practices or
the withholding of services.160
THE RIGHT TO LIFE
57.
The right to life is guaranteed in virtually all
major international and regional human rights
instruments. Article 3 of the Universal Declaration
of Human Rights guarantees the right to life for
all persons. Similarly, Article 6 of the International
Covenant on Civil and Political Rights provides
that “every human being has the inherent for the
160
right to life,” that the right must be protected by
law and that no one shall be arbitrarily deprived
of their life. The right to life is interconnected
with other rights and is one of the most important
human rights guaranteed to all individuals. It is
argued that the right to life has almost attained the
status of jus cogens under international law.161
58. In the context of HIV, the right to life implies that
people living with HIV must not be denied access
to information and services that are crucial to their
health and well-being. For instance, denial of access
to life-saving medications such as antiretroviral
drugs will amount to the violation of the right to
life. Equally, States are expected to ensure that
hospitals and clinics are well-stocked with essential
medicines needed to treat opportunistic infections
for people living with HIV. More importantly,
health-care providers must refrain from mistreating
people living with HIV or engaging in any act that
is prejudicial to their life and well-being.
African Commission, General Comment No. 1, para. 42; and African Commission,
General Comment No. 2, para. 29.
161
A.E. Yamin, “Not Just a Tragedy: Access to Medication as a Right under International
Law,” Boston University International Law Journal 21 (2003): 330.
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Report on the Study of the African Commission on Human and Peoples’ Rights
UN human rights standards
62. In its General Comment No. 3 on HIV/AIDS and
59.
In its General Comment No. 6 on the Right
to Life, the UN Human Rights Committee
explains that the right to life should be broadly
understood as intersecting with health issues such
as maternal mortality and the treatment and
prevention of diseases. The General Comment
also mentions the need for States Parties to take
all possible measures to eliminate epidemics.162
In the Human Rights Committee’s view, the
right to life is not only the most fundamental of
all human rights, but it is also non-derogable.
In its concluding observations, the Human
Rights Committee expresses concern about the
availability of effective treatment for individuals
at risk of or living with HIV and AIDS, and it
urges States Parties to allow and facilitate access to
adequate medical care, counselling and treatment
(including antiretroviral therapy) as an obligation
under the right to life.163
60. The Committee on ESCR explains in its General
Comments Nos. 14 and 22 that the violation of
the right to health, including the right to sexual
and reproductive health, is “indivisible from
and interdependent with other human rights.
It is intimately linked to civil and political rights
underpinning the physical and mental integrity
of individuals and their autonomy, such as the
rights to life; liberty and security of person….”164
The Committee identifies essential medication—
including medicines and treatment for the
prevention of STIs and HIV—as one of the
minimum core contents of the right to health, and
it indicates that States have an obligation to ensure
their availability.
the Rights of the Child, the Committee on the Rights
of the Child observes that the HIV epidemic not only
affects the health and well-being of children, but that
it also has implications for other rights, including
their rights to life, survival and development. The
Committee explicitly notes that the
State obligation to realize the right to life, survival
and development also highlights the need to give
careful attention to sexuality as well as to the
behaviours and lifestyles of children, even if they
do not conform with what society determines
to be acceptable under prevailing cultural
norms for a particular age group. In this regard,
the female child is often subject to harmful
traditional practices, such as early and/or forced
marriage, which violate her rights and make her
more vulnerable to HIV infection, including
because such practices often interrupt access to
education and information. Effective prevention
programmes are only those that acknowledge
the realities of the lives of adolescents, while
addressing sexuality by ensuring equal access
to appropriate information, life skills and to
preventive measures.166
63.
All of
the above standards impose positive
obligations on States to avoid unnecessary loss
of lives, including by taking adequate measures
to ensure that appropriate health-care services
(including access to antiretroviral drugs) are
provided. They coincide with the decisions of
international tribunals such as the European
Commission on Human Rights. In Tavares v.
France, for example, the Commission held that
the right to life guaranteed under the European
Convention on Human Rights extends beyond a
State’s duty to abstain from intentional killing to
also include taking necessary steps to protect the
unintentional loss of life.167
61.
In its General Comment No. 35, the CEDAW
Committee notes that the right of women to lead
lives free from gender-based violence is indivisible
from and interdependent with other human
rights, including the right to life. It goes to indicate
that health-care services should be responsive to
trauma and include timely and comprehensive
mental, sexual and reproductive health services,
including PEP.165
162
UN GAOR Human Rights Committee, The Right to Life. 37th Session, Suppl. No 40.
163
See for instance, Human Rights Committee Concluding Observations: Uganda,
African human rights standards
64.
At the regional level, the right to life of all
individuals is explicitly guaranteed under Article 4
of the African Charter, which provides that every
human being shall be entitled to the respect for his
22, UN Doc. CESCR/GC/22 (2016).
165
04/5/2004 UN Doc CCPR/CO/80/UGA; Human Rights Committee Concluding
Observations: South Africa 27/4/2016 UN Doc CCPR/C/ZAF/CO/1; Human Rights
Women, General Recommendation 35, UN Doc. CEDAW/GC/35 (2017).
166
Committee Concluding Observations: Kenya 31/8/2012 UN Doc CCPR/C/KEN/CO/3.
p.
42
164
Committee on ESCR, The Right to Sexual and Reproductive Health, General Comment
CEDAW Committee, General Recommendation 35 on Gender Based Violence against
Children’s Rights Committee, HIV/AIDS and the Rights of the Child, General Comment
3, UN Doc. CRC/GC/2003/3 (2003).
167
Tavares v. France, App No 16593/90 Euro. Comm. HR.
Report on the Study of the African Commission on Human and Peoples’ Rights
or her life and the integrity of his or her person.
Article 5 of the African Children’s Charter also
declares that “every child has an inherent right
to life. This right shall be protected by law.” In
language similar to that of the African Charter,
Article 4 of the Maputo Protocol guarantees the
right to life and security of all women. Given the
high mortality rate associated with HIV in Africa,
the right to life is one of the strongest rights to
protect the right of persons living with, affected by
or vulnerable to HIV in Africa.
68.
Finally, General Comment No. 3 makes explicit
the connection between State obligations to
protect the right to life and those to ensure access
to antiretroviral medicines. It notes that when
the State deprives an individual of liberty, its
control of the situation yields a heightened level
of responsibility to protect the rights of that
individual. This includes a “positive obligation to
protect all detained persons from violence or from
emergencies that threaten their lives, as well as to
provide the necessary conditions of a dignified life,
including the provision of adequate health care
(including maternal health care and the provision
of antiretroviral drugs).”171
General Comments
65.
A number of the African Commission’s general
comments address the right to life. For instance, the
African Commission’s General Comment No. 3 is
directly related to the right to life as provided under
Article 4 of the Charter, Article 4 of the Maputo
Protocol and Articles 5 and 30 of the African
Children’s Charter, all of which enshrine the right
to life. Similarly, its General Comment on Articles
14 (1) (d) and (e) of the Maputo Protocol includes a
recognition of the intrinsic link with the right to life.
Resolutions
69.
In Resolution 53 on the HIV/AIDS Pandemic,
the African Commission notes the high mortality
associated with HIV in the region and the fact that
the epidemic has become a threat to humanity.
While affirming that the HIV pandemic has
become a human rights challenge, Resolution
53 calls on African governments to take decisive
measures towards addressing it. In particular, it
calls on States to ensure the protection of human
rights of those infected and affected and to provide
“support to families for the care of those dying of
AIDS, devise public health-care programmes of
education and carry out public awareness especially
in view of free and voluntary HIV testing, as well
as appropriate medical interventions.” 172
66. General Comment No. 3 illustrates the connection
between the right to life and other human rights,
including the right to health, and it notes that
the right to life should be interpreted broadly.
It requires States to engage in preventive steps
to respond to infectious diseases and other
emergencies, and it indicates that the State has
a positive duty to protect individuals and groups
from real and immediate risks to their lives caused
by the actions or inactions of third parties.168
Comment No. 3 also notes the
responsibility of States to address more chronic
yet pervasive threats to life (such as HIV and
AIDS) by establishing functioning health systems
and eliminating discriminatory laws and practices
that affect the ability of individuals and groups
to seek health care.169 This General Comment
also recognises that such an approach reflects the
African Charter’s ambition to ensure a better life
for all people in Africa through its recognition of
a wide range of rights, including economic, social
and cultural rights.170
70. In Resolution 275, the African Commission notes
the connection between violence, including sexual
violence and violence based on sexual orientation
and gender identity, and the right to life guaranteed
in Article 4 of the Charter. In doing so, the
African Commission calls on States to end such
violence through laws prohibiting and punishing
all forms of violence on the basis of imputed or
real sexual orientation or gender identities, to
pursue the proper investigation and prosecution
of perpetrators, and to ensure judicial procedures
that are responsive to the needs of victims.
67.
General
168
71.
The
African Commission’s Principles and
Guidelines raises concerns about the negative
African Commission, General Comment No. 3 on Article 4 of the African Charter on
Human and Peoples’ Right: The Right to Life, paras. 3 and 41.
171
African Commission, General Comment No. 3 on Article 4, para. 36.
169
African Commission, General Comment No. 3 on Article 4, paras. 3 and 43.
172
Adopted during the 29th Ordinary Session in Tripoli, the Great Socialist Peoples’
170
African Commission, General Comment No. 3 on Article 4, para. 3.
Libyan Arab Jamahiriya, from 23rd April to 7th May 2001.
p.
43
Report on the Study of the African Commission on Human and Peoples’ Rights
impact of HIV and AIDS on the right to health
and on other rights, including the right to life. It
calls on States to ensure the availability of drugs
and technologies at affordable prices for the
treatment, care and prevention of HIV. It also calls
for reform of public health and criminal laws to
address public health issues raised by HIV, and
to ensure and respect the rights of individuals
infected and affected by HIV.173
THE RIGHT TO BE FREE FROM TORTURE
AND OTHER CRUEL, INHUMAN OR
DEGRADING TREATMENT
74.
The right to be free from torture and cruel,
inhuman or degrading treatment is protected in
many international and regional human rights
treaties. It is closely connected to the right to
informed decision-making and bodily autonomy,
not only in the context of forced HIV testing, but
also in the provision of family planning services to
HIV-positive women.178
Concluding observations
72. In a number of concluding observations to States,
the African Commission has made the link between
the right to health and the obligation to preserve
the right to life. For instance, in its concluding
observations to the report of Namibia, the
Commission urges the Government to take concrete
efforts with a view to reducing maternal and child
mortality rates in the country.174 The Commission
expresses a similar concern on the report of
Ethiopia when it raises the high maternal mortality
rate in the country.175 It also recommended that
the Government of Ethiopia adopt appropriate
measures to address this situation.
UN human rights standards
75.
The UN Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or
Punishment defines torture as “any act by which
severe pain or suffering, whether physical or mental,
is intentionally inflicted on a person . . . [including]
for any reason based on discrimination of any
kind.”179 Article 5 of the African Charter stipulates
that every individual “shall have the right to the
respect of the dignity inherent in a human being.” It
also states that all forms of exploitation—particularly
cruel, inhuman or degrading punishment and
treatment—shall be prohibited.180
Case law
73. The African Commission affirmed the interrelated
nature of all human rights in Social and Economic
Rights Action Centre (SERAC) and Another
v. Nigeria, when it found that the Nigerian
government was in violation of the rights to
health, life, clean environment and other rights
due to pollution caused by the activities of oil
companies in Ogoniland.176 Also, in International
Pen and others (on behalf of Ken Saro-Wiwa),
the Commission reaffirmed the positive obligation
imposed on States by the right to life under Article
4 of the African Charter:
The protection of the right to life in Article 4 also
includes a duty for the State not to purposefully
let a person die while in its custody. Here at least
one of the victims’ lives was seriously endangered
by the denial of medication during detention.
Thus, there are multiple violations of Article 4.177
173
African Commission, Principles and Guidelines.
174
African Commission, Concluding Observations and Recommendations on Sixth
76.
Similar to the African Charter, Article 4 of the
Maputo Protocol addresses the rights to life,
integrity, liberty and security of every woman.181
Article 4 sets out that “every woman shall be
entitled to respect for her life and the integrity and
security of her person. All forms of exploitation,
cruel, inhuman or degrading punishment and
treatment shall be prohibited.”182
77. The Committee against Torture, which monitors
State compliance with the UN Convention
against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, notes the
enhanced risk of torture and ill-treatment in the
context of reproductive health care in its General
Comment No. 2:
Gender is a key factor. Being female intersects
with other identifying characteristics or status
of the person, such as race, nationality, . . .
(2001) AHRLR 60 (ACHPR 2001).
177
Periodic Reports of the Republic of Namibia on the Implementation of the African
Charter on Human and Peoples’ Rights (2011–2013), adopted during the 58th Ordinary
(ACHPR 1998).
178
Session, 6–20 April 2016 in Banjul, The Gambia.
175
Concluding Observations and Recommendations on the 5th and 6th Periodic Report
44
176
Human Rights Council, Report of the Special Rapporteur on Torture and other Cruel,
Inhuman or Degrading Treatment or Punishment (1 February 2013).
179
of the Federal Democratic Republic of Ethiopia adopted during the 56th Ordinary
p.
International Pen and Others (On behalf of Ken Saro-Wiwa) (2000) AHRLR 212
UN General Assembly, Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, Art. 1 (10 December 1984).
Session of the African Commission 21 April to 7 May 2015.
180
African Charter on Human and Peoples’ Rights, Art. 5.
See Social and Economic Rights Action Centre (SERAC) and Another v. Nigeria
181
Protocol to the African Charter, Art. 4.
Report on the Study of the African Commission on Human and Peoples’ Rights
immigrant status etc. to determine the ways
that women and girls are subject to or at risk
of torture or ill-treatment and the consequences
thereof. The contexts in which females are at
risk include deprivation of liberty, [and] medical
treatment, particularly involving reproductive
decisions . . . (emphasis added).183
81.
Such acts include physical and psychological
acts committed against victims without their
consent or under coercive circumstances, such
as rape (including so-called corrective rape),
domestic violence, verbal attacks and humiliation,
forced
marriage,
isolation,
dowry-related
violence, trafficking for sexual exploitation,
enforced prostitution, indecent assault, denial of
reproductive rights (including forced or coerced
pregnancy), abortion and sterilisation, forced
nudity, mutilation of sexual organs, virginity
tests, sexual slavery, sexual exploitation, sexual
intimidation, abuse, assault or harassment, forced
anal testing, or any form of sexual or gender-based
violence of comparable gravity.191
78.
The UN Special Rapporteur on Torture similarly
states that “women seeking maternal health care face a
high risk of ill-treatment, particularly before and after
childbirth . . . Such mistreatment is often motivated
by stereotypes regarding women’s childbearing roles
and inflicts physical and psychological suffering that
can amount to ill-treatment.”184
79.
International and regional human rights bodies
have repeatedly affirmed that sterilisation without
informed consent violates the right to be free from
torture and cruel, inhuman or degrading treatment.
These bodies include the African Commission,185
the UN Committee against Torture,186 and the UN
Human Rights Committee.187 For example, the UN
Committee against Torture raised concern over the
involuntary sterilisation of HIV-positive women in
Kenya in its latest review of Kenya’s compliance
with the Convention against Torture.188
FREEDOM OF EXPRESSION, ASSOCIATION
AND ASSEMBLY
82. The rights to freedom of expression, association
and assembly are closely linked rights protecting
the ability of individuals and groups to organise,
associate, and meet and express ideas around areas
of interest and concern. These rights are protected
under both international and regional treaties.
Under international law, individuals and groups
must be allowed to express views and opinions
and disseminate information, even when such
views are dissenting or held by a minority. They
must be allowed to associate and assemble freely
without interference or legal barriers, and they
have the right to be protected from interference,
intimidation or abuse by third parties when
exercising such rights. These rights include the
rights of marginalised groups to form civil society
organisations, raise funds, provide services and
participate in public and political discussions.
They also include the rights of people living with
HIV and others to assemble publicly for events and
rallies, and for individuals (including adolescents)
to receive and disseminate information relating to
HIV or sexual and reproductive health.
African human rights standards
80. In its recent General Comment No. 4, the African
Commission refers to acts of sexual and genderbased violence that may amount to torture and
other ill-treatment, including acts perpetrated
against people living with HIV that also fuel the HIV
epidemic.189 The General Comment provides that
acts of sexual and gender-based violence, or
the failure by States to prevent and respond
to such acts, may amount to torture and other
ill-treatment in violation of Article 5 of the
African Charter. This General Comment
specifically refers to those acts of sexual and
gender-based violence that amount to a form
of torture and other ill-treatment in view of
the specific, traumatic and gendered impact
of sexual violence on victims, including the
individual, the family and the collective.190
182
Protocol to the African Charter, Art. 4.
183
Committee Against Torture, General Comment No. 2: Implementation of Art. 2 by
States Parties (23 Nov 2007), para. 22 (emphasis added).
184
UN human rights standards
83.
Under international human rights law, everyone
has the right to freedom of expression, association
Torture, Concluding Observations of the Committee against Torture: Slovakia (2009),
para. 14.
187
Human Rights Council, Report of the Special Rapporteur on Torture and Other Cruel,
Committee: Czech Republic (2007), para. 9; Human Rights Commission, Concluding
Inhuman or Degrading Treatment or Punishment, para. 47.
185
African Commission, Resolution 260.
186
For example, see Committee Against Torture, Concluding Observations on the
Human Rights Commission, Concluding Observations of the Human Rights
Observations of the Human Rights Committee: Slovakia (2003), para. 12.
188
Committee Against Torture, Concluding Observations on the Second Periodic Report
of Kenya, para. 27.
Second Periodic Report of Kenya, Adopted by the Committee at its Fiftieth Session
189
African Commission, General Comment No. 4, para. 20.
(5–31 May 2013); Committee Against Torture, Concluding Observations of the
190
African Commission, General Comment No. 4, para. 57.
Committee against Torture: Czech Republic (2012), para. 12; and Committee Against
191
African Commission, General Comment No. 4, para. 58.
p.
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Report on the Study of the African Commission on Human and Peoples’ Rights
and assembly. No restrictions can be placed on
these rights except as provided by law, and such
restrictions may only be imposed in a democratic
society where necessary for the protection of the
rights and freedoms of others or the interests of
national security, public order or public health and
morals.192 Restrictions should not impinge upon
the general democratic principles of pluralism,
tolerance and broadmindedness.193 These
rights are to be enjoyed and protected without
discrimination, including on grounds of sexual
orientation and gender identity.194
86. Any limitations must be necessary, proportionate
and for a legitimate purpose; they should also apply
to all persons equally. This means that in the area
of HIV, limitations may not target key populations
or limit speech around sexual orientation, gender
identity, sex workers or people living with HIV.
Freedom of association
87.
In the context of HIV, freedom of association is
necessary to ensure that civil society organisations
that work on HIV or with key populations can form
and operate effectively. Civil society organisations
perform an important role in implementing and
supporting activities such as assisting people
with HIV, promoting legal reform, combating
discrimination and stigma, and preventing HIV
transmission. Any restrictions on the freedom to
associate must be necessary, proportionate and for
a legitimate reason. Organisations working in the
area of HIV through service delivery, education,
legal reform, advocacy—or those working with key
populations—must be allowed to register, fundraise
and operate freely without interference or fear.
Restrictions on the ability to form an association can
have a significant effect on civil society organizations
and, by extension, the HIV epidemic.
Freedom of expression and opinion
84. Freedom of opinion and expression is central to a
functioning, free and democratic society, and it is
necessary for the promotion and protection of all
other human rights.195 Individuals have the right
to hold all forms of opinion, including political,
scientific, historic, moral and religious opinions.
Any harassment, arrest, detention, intimidation
or stigmatization of people on the basis of their
opinion is a breach of this right. The right to
express oneself includes the right to receive and
impart information and ideas of all kinds. Similarly,
information about sexual health rights and HIV
must be readily available to individuals, including
adolescents. This availability is necessary for both
prevention and treatment of the HIV epidemic.
88.
While States may make regulations for the
registration and operation of associations, under
international law, such regulations must be for the
benefit of those associations rather than acting as a
barrier to their operation. Registration procedures
must be short, accessible and have strict time
limits regarding responses; any delays may
amount to interference with the exercise of the
right to association.198 Associations have the right
to operate freely and be protected from undue
interference, including acts of intimidation or
violence, arbitrary arrests, media smear campaigns
and threats.199 As with individuals, associations
should be able to express their views and advocate
for changes to laws and the Constitution, even
when such views represent the minority and may
lead to tension.200 Unregistered associations also
are protected by this right.201
85. State Parties have an obligation not only to refrain
from preventing freedom of expression, but also to
ensure that individuals are protected from attacks
aimed at silencing people who are exercising free
speech.196 This is particularly the case where the
topics of conversation are considered controversial
in a particular context, or where groups experience
stigma or discrimination. Individuals, including
key populations, judges and lawyers and other
community representatives and human rights
defenders who speak out on human rights issues—
such as the rights of sexual orientation and gender
identity, sex workers and drug use—should be able
to operate without fear of reprisal, either from the
State or private individuals.197
192
UN General Assembly, International Covenant on Civil and Political Rights, Arts. 19, 21
and 22.
193
Human Rights Council, Report of the Special Rapporteur on the Rights to Freedom of
Peaceful Assembly and of Association, A/HRC/20/27 (2012), para. 17.
194
p.
46
Human Rights Council, Report of the Special Rapporteur on the Rights to Freedom of
Peaceful Assembly and of Association.
201
Human Rights Committee, General Comment No. 34 on Freedoms of Opinion and
Expression (Art. 19) (12 September 2011).
Human Rights Council, Report of the Special Rapporteur on the Rights to Freedom of
Peaceful Assembly and of Association, para. 63.
200
Human Rights Council, The Rights to Freedom of Peaceful Assembly and of
Association, A/HRC/Res/20/27 (2012), para. 13.
195
Peaceful Assembly and of Association, paras. 60 & 61.
199
Human Rights Council, Report of the Special Rapporteur on the Rights to Freedom of
Peaceful Assembly and of Association, para. 56.
202
Human Rights Council, Report of the Special Rapporteur on the Rights to Freedom of
196
Human Rights Committee, General Comment No. 34.
197
Human Rights Committee, General Comment No. 34.
203
As above.
198
Human Rights Council, Report of the Special Rapporteur on the Rights to Freedom of
204
As above.
Peaceful Assembly and of Association.
Report on the Study of the African Commission on Human and Peoples’ Rights
89.
The freedom to associate means that such
in the State’s decision-making processes by
advocating for reform and commenting on
government policies, actions and legislation.210
People living with HIV, key populations and those
working with people living with HIV all have the
right to assemble in order to demonstrate, protest
or hold a rally, procession or public event. Holding
or espousing minority beliefs or views critical of
the government cannot be a reason for disallowing
or disrupting an assembly. Such assemblies are
important for raising awareness of HIV, advocating
for the protection of rights or influencing public
policy. States also must ensure that participants
in assemblies are protected from assault, violence
and other violations by provocateurs or counterdemonstrators.211 This is particularly important
given the stigma and discrimination faced by
people living with HIV, especially those from
marginalised key populations.
organisations must be able to work, to operate
and to raise funds from domestic, foreign and
international sources. Limitations on foreign
funding have been held to violate the right to
freedom of association.202 For organisations
working on HIV—where a significant amount of
funding is from foreign sources—this is critical.
Laws that limit the amount of foreign funding
can limit an association’s ability to operate,
and they have led to the closure of many civil
society organizations.203 Where countries require
organisations to register, the process should be
simple, accessible and voluntary, without fear of
criminal sanctions.204
90. The right to freedom of association applies to all
persons without discrimination, including people
who normally experience discrimination or stigma
because of sexual orientation or gender identity.205
Due to the stigma and discrimination surrounding
both people living with HIV and key populations,
associations connected with either HIV or certain
key populations can experience a backlash. The
Special Rapporteur on Freedom of Assembly and
Association has specifically mentioned the rights
of LGBTI organisations to be registered.206
African human rights standards
93. Articles 9, 10 and 11 of the African Charter provide
for the rights to freedom of expression, association
and assembly.212 Any limitations imposed on
these rights must be for a legitimate purpose and
grounded in the rights of others and in collective
security, morality and common interest; they also
must be necessary and proportionate.213 Both the
African Commission and the African Court have
upheld the rights of associations and individuals to
speak out, associate and assemble, and they have
condemned actions and restrictions that serve to
violate these rights.
Freedom of assembly
91.
Connected closely to association and speech,
everyone has the right to assemble in public
and participate in peaceful assemblies. As with
freedom of association, any restrictions should
be minimal and should facilitate the holding of
peaceful assemblies.207 Persons assembling should
not require permission or an application; at most,
governments may require prior notification in
order to facilitate the assembly and protect public
safety.208 Failure to notify the government in
advance should not incur criminal or even civil
penalties, nor should it result in the shutdown of
otherwise peaceful assemblies.209
Freedom of expression and infor mation
94. The African Commission recognises the freedom
of expression and the right to information
as cornerstones of democracy and as means
of ensuring respect for all human rights and
freedoms.214 The African Commission has
specifically declared that freedom of expression
imposes an obligation on the State to promote
diverse views through pluralistic access to the
media, including by vulnerable and marginalised
groups, and the availability and promotion of a
92.
Organisations have a right to take part in the
conduct of public affairs, including participating
205
UN General Assembly, Resolution on Human Rights, Sexual Orientation and Gender
209
Identity, A/HRC/RES/17/19 (14 July 2011).
206
Human Rights Council, Report of the Special Rapporteur on the Rights to Freedom of
Peaceful Assembly and of Association.
Human Rights Council, Report of the Special Rapporteur on the Rights to Freedom of
210
As above.
Peaceful Assembly and of Association.
211
As above.
207
As above.
212
African Charter, Arts. 9–11.
208
Human Rights Council, Report of the Special Rapporteur on the Rights to Freedom
213
African Charter, Art. 27(2); Communication Nos. 105/93, 128/94, 130/94, 152/96,
of Peaceful Assembly and of Association; OSCE et al., Guidelines on Freedom of
Media Rights Agenda and Others v. Nigeria, Twelfth Annual Activity Report, para. 68;
Peaceful Assembly, Second ed. (Poland: OSCE/ODIHR, 2010), para. 63; and Inter-
Communication Nos. 140/94, 141/94 and 145/95, Constitutional Rights Project and
American Commission on Human Rights, Report on the Situation of Human Rights
Defenders in the Americas (Washington, DC: Organization of American States, 2006),
para. 57.
Others v. Nigeria, Thirteenth Annual Activity Report, para. 41.
214
African Commission, Resolution on the Adoption of the Declaration of Principles on
Freedom of Expression in Africa, ACHPR/Res.62(XXXII)02 (17–23 October 2002).
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Report on the Study of the African Commission on Human and Peoples’ Rights
range of information and ideas to the public.215
In an environment where individuals are targeted
and stigmatised because of their sexual identity,
gender orientation or HIV status, protection of
the right to express oneself freely and speak about
controversial or minority issues is key.
there “must always be a general capacity for citizens
to join, without State interference, in associations
in order to attain various ends. . . . In regulating
the use of this right, the competent authorities
should not enact provisions which would limit the
exercise of this freedom.”222 States cannot interfere
or act against members of an organization simply
because they do not like the comments or views
of the organization, or because the organisation
is critical of the government.223 Membership of
an association should not solely be considered as
grounds for criminal charges.224
95. Both the African Court and African Commission
have heard cases on freedom of expression. They
have held that States have an obligation to refrain
from detaining journalists who are critical of the
government.216 They also have held that States have
not only a positive obligation to protect individuals
from attacks and reprisals by third parties when
exercising freedom of expression, but that they are
obligated to investigate any such reprisals or acts.217
98.
The
African Commission Study Group on
Freedom of Association and Assembly in Africa
has also published advice on registration and
barriers for associations, stating that
Freedom of association
96. The African Charter and the African Children’s
Charter recognise the right of adults and
children to associate freely. In 1992, the African
Commission passed a resolution on the Right to
Freedom of Association, stating that authorities
should not override constitutional provisions
or undermine fundamental rights.218 When
regulating freedom of association, States should
not limit the exercise of that freedom, and any
regulation should be consistent with the African
Charter. The Kigali Declaration of 2003 also
specifically recognises the important role of civil
society organisations. In addition, Africa has a
Charter on Democracy, Elections and Governance
(2007) that imposes obligations on States to create
conducive conditions for civil society organisations
to exist and operate within the law. Under the
Charter, State Parties commit to “fostering popular
participation and partnership with civil society
organisations” and “promoting partnerships and
dialogue between governments, civil society and
the private sector.”219 Unfortunately, as of April
2017, only 10 States had signed and ratified the
Charter, and none have done so since 2011.220
States should not require associations to register in
order to be allowed to exist and to operate freely.
States’ legitimate interest in security should not
preclude the existence of informal associations,
as effective measures to protect public safety may
be taken via criminal statute without restricting
the right to freedom of association.225
Freedom of assembly
99.
The African Charter and African Commission
have likewise protected the right to freedom
of assembly. Under African human rights
mechanisms, States should not place unnecessary
limitations or barriers on the right to assemble in
public. Groups should not require authorisation to
assemble peacefully, and notification procedures
should be easy to use.226 Organisers should not
be sanctioned because they failed to notify the
authorities, nor should they be made liable for
the unlawful conduct of others.227 There should
be no blanket prohibitions on assembly, and any
restrictions should be for a legitimate purpose with
full reasons provided.228
THE RIGHT TO FREEDOM OF MOVEMENT
97. The African Commission has upheld the rights of
associations to operate without undue interference
from the State.221 According to the Commission,
215
African Commission, Resolution on the Adoption of the Declaration of Principles on
100.
The right to freedom of movement is protected
by international and regional human rights law,
221
Freedom of Expression in Africa.
216
Lohé Issa Konaté v. The Republic of Burkina Faso, 4/2013 ACHR (2014); and Sir
Eighth Annual Activity Report.
222
Dawda K Jawara v. The Gambia, ACHR 147/95, 149/96 (2000).
p.
48
Civil Liberties Organization (in respect of the Nigerian Bar Association) v. Nigeria,
Communication 101/93, Civil Liberties Organization (in respect of the Nigerian Bar
Association) v. Nigeria, paras. 15-16.
217
Abdoulaye Nikiema v. The Republic of Burkina Faso, ACHR 13/2011 (2014).
223
218
African Commission, Resolution on the Right to Freedom of Association (2–9 March
v. Nigeria, Twelfth Annual Activity Report; Communication 205/97, Kazeem
1992).
Aminu v. Nigeria, Thirteenth Annual Activity Report, paras. 22–23; Communication
219
African Charter on Democracy, Elections and Governance, Arts. 12, 27 and 28 (2007).
225/98, Huri-Laws v. Nigeria, Fourteenth Annual Activity Report, paras. 47–49; and
220
“Ratification Table,” African Commission, accessed 12 April 2017, http://www.achpr.
Communication 232/99, John D. Ouko v. Kenya, Fourteenth Annual Activity Report,
org/instruments/charter-democracy/ratification.
paras. 29–30.
Communications 137/94, 139/94, 154/96 and 161/97, International Pen and Others
Report on the Study of the African Commission on Human and Peoples’ Rights
including the African Charter.229 This right to
freedom of movement includes the right of persons
living lawfully within a country to move freely within
it and to choose their place of residence without
coercion. It also includes the rights of nationals
to exit and enter their country freely, including
without any form of coercion or discrimination.
Importantly, it also encompasses the right of nonnationals who are lawfully in the country to remain
so unless expelled through legal processes that
respect principles of access to justice.
mandatory premarital testing as a precondition
for the issuance of marriage licenses affects this
right. Forced abortion and sterilization of HIV–
positive women infringes on the right to found a
family (in addition to many other rights). Informed
decision-making—including in decisions related to
reproduction and family formation—is a central
aspect of the right to liberty and security and the
right to privacy. Measures to ensure the equal rights
of women within the family, which are explicitly
protected by the African Charter, also are relevant
in the HIV context because they are necessary for
women to negotiate safe sex or to have the choice
to leave a relationship.233
101.
According to human rights and public health
standards, there is no rationale for restricting
freedom of movement on the basis of HIV status.
Restrictions based solely on real or perceived
HIV status, including HIV screening of travellers,
are discriminatory and not justifiable as a public
health concern. Some States may prohibit people
living with HIV from long–term residency due to
concerns about health care and other financial costs,
but highlighting HIV status to determine residency
is discriminatory. Economic considerations also
should not play a role in the consideration of
entry applications. Humanitarian factors should
be the primary consideration, including family
reunification and the need for protection.230
THE RIGHT TO MARRY AND TO FOUND A
FAMILY
THE RIGHT TO ENJOY THE BENEFITS
OF SCIENTIFIC PROGRESS AND ITS
APPLICATIONS
104. The right to enjoy the benefits of
scientific
progress is found in the International Covenant
on Economic, Social and Cultural Rights.234 The
right to enjoy the benefits of scientific progress in
relation to medicine and health is closely related to
the right to health and the right to quality healthcare treatment. In the context of HIV, this right
and its applications are important because of
advances regarding testing and treatment.
105.
The Committee on ESCR General Comment
No. 22 on the Right to Sexual and Reproductive
Health notes the following:
102. Numerous international and regional human rights
treaties guarantee the right to marry and to found
a family, as well as the protection of the family.231
The International Covenant on Civil and Political
Rights states that “the right of men and women of
marriageable age to marry and to found a family shall
be recognized” and that “States Parties to the present
Covenant shall take appropriate steps to ensure
equality of rights and responsibilities of spouses as to
marriage, during marriage and at its dissolution. . . .
In the case of dissolution, provision shall be made for
the necessary protection of any children.”232
103. Various laws and/or practices in relation to people
living with HIV infringe on this right. For example,
224
Communications 137/94, 139/94, 154/96 and 161/97, International Pen and Others v.
Facilities, goods, information and services
related to sexual and reproductive health
must be of good quality, meaning that
they are evidence-based and scientifically
and medically appropriate and up-to-date.
This requires trained and skilled healthcare personnel and scientifically approved
and unexpired drugs and equipment. The
failure or refusal to incorporate technological
advancements and innovations in the
provision of sexual and reproductive health
services, such as medication for abortion,
assisted reproductive technologies and
228
Nigeria, paras. 107–110; Communications 54/91, 61/91, 98/93, 164-196/97 and 210/98,
v. Sudan, paras. 81-82; and Malawi Law Society and Others v. President and Others,
Malawi African Association and Others v. Mauritania, paras. 106–7.
225
226
227
Communications 48/90, 50/91, 52/91 and 89/93, Amnesty International and Others
AHRLR 110 (MwHC 2002), para. 30.
African Commission, Report of the Study Group on Freedom of Association and
229
African Charter, Art. 12.
Assembly in Africa (2014).
230
UNAIDS et al., International Guidelines on HIV/AIDS and Human Rights: 2006
Communications 48/90, 50/91, 52/91 and 89/93, Amnesty International and Others v.
Consolidated Version.
Sudan, Thirteenth Annual Activity Report, paras. 81–82.
231
This is the case for instance of Art 18 of the African Charter.
Communications 54/91, 61/91, 98/93, 164-196/97 and 210/98, Malawi African
232
United Nations, ICCPR, Art. 23.
Association and Others v. Mauritania, paras. 108–11; and Communications 137/94,
233
African Charter, Art. 18.
139/94, 154/96 and 161/97, International Pen and Others v. Nigeria, paras. 105–06.
234
United Nations, ICESCR, Art. 15.
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Report on the Study of the African Commission on Human and Peoples’ Rights
advancements in the treatment of HIV and
AIDS, jeopardizes the quality of care.235
108.
Article 11 of the International Covenant on
Economic, Social and Cultural Rights recognises
that every person has the right to an adequate
standard of living for themselves or their families,
including adequate food and the right to the
continuous improvement of living conditions.237
In addition, it recognises “the fundamental right
of everyone to be free from hunger.”238 It imposes
obligations on States Parties to take necessary
measures, including specific programmes, that
are aimed at ensuring improved methods of
production, conservation and distribution of food
and those that ensure an equitable distribution of
world food supplies in relation to need.239
106. As with other rights, the right to benefit from
scientific progress and its applications cannot be
applied in a discriminatory fashion. The denial of
affordable antiretroviral therapy to the public at
large and specific marginalised populations (such
as prisoners) violates numerous rights.236
THE RIGHT TO FOOD
107. The right to food is recognised in Article 11 of
the Universal Declaration of Human Rights. In
its General Comment No. 14, the Committee on
ESCR connected the right to health with adequate
nutrition and food, identifying nutrition and food
as core elements of the enjoyment of the right to
health because access to adequate food and good
nutrition is essential for healthy living. Furthermore,
access to nutritious food is crucial in the context of
HIV because malnutrition or hunger may worsen
the health of people living with HIV.
p.
50
109. While the right to food is not explicitly recognised
in the African Charter, the African Commission
has noted that the right to food is “linked to the
dignity of human beings and is therefore essential
for the enjoyment and fulfilment of such other
rights as health, education, work and political
participation.”240 The African Commission
has indicated that States Parties to the African
235
CESCR, General Comment No. 22, para. 21.
241
SERAC and Another v. Nigeria (2001), para. 66.
236
UNAIDS et al., International Guidelines, 10.
242
International Conference on Population and Development, para. 5.
237
CESCR, Art. 11 (1).
243
African Commission, Principles and Guidelines, para. Iv.
238
CESCR, Art. 11 (2).
244
African Commission, Resolution 374 on the Right to Food and Food Insecurity in
239
CESCR, Art. 11 (2) (b).
240
SERAC and Another v. Nigeria (2001) AHRLR 60 (ACHPR 2001), para. 65.
Africa, ACHPR/Res.374 (LX) 2017, adopted in May 2017 in Niamey, Niger.
245
African Commission, Resolution 374 on the Right to Food and Food Insecurity in Africa.
Report on the Study of the African Commission on Human and Peoples’ Rights
Charter can be in violation of the right to food
when the Charter is read with other pertinent
international human rights instruments.241 The
Commission’s Principles and Guidelines notably
provide that African countries should “promote
food security and good nutritional practices as part
of the response to HIV/AIDS, tuberculosis and
other infectious diseases.”242 The Principles and
Guidelines thus enjoin African countries to ensure
that health policies and programmes address
“issues related to food and nutrition.”243
improvement of living conditions.”249 States are
enjoined to take appropriate steps to ensure the
realization of this right.
112.
In General Comment No. 4 on the Right to
Adequate Housing and No. 7 on forced evictions,
the Committee on ESCR clarified the nature and
scope of State obligations regarding the right to
housing. It explains that States have the obligation
to respect, protect, promote and fulfil the right
to adequate housing. This includes progressively
realising the right to adequate housing and
refraining from acts of forced evictions unless
alternative accommodation has been provided.
110.
During its 60th Ordinary Session, the African
adopted Resolution 374 on the Right to Food
and Food Security in Africa.244 This resolution
recognises that the right to food is inherent in the
Charter’s protection of the rights to health and
life, and it draws on existing standards, noting
with concern the threats that food insecurity pose
to the enjoyment of the right to food of millions
of people in the region. It therefore urges African
governments to adopt legislative, administrative
and other necessary measures with a view to
addressing the challenge of food insecurity and
hunger in the region.245
113.
People
living with HIV sometimes face
discriminatory practices in relation to their right
to housing. Reports show that people living with
HIV have been denied access to housing or ejected
from their accommodation based on HIV status.
This further compounds human rights challenges
encountered by persons living with, affected by or
vulnerable to HIV.
114.
The African Charter does not contain an
explicit right on housing, but the Principles and
Guidelines adopts the same standards as the
International Covenant on Economic, Social
and Cultural Rights in its explanation of the
nature of obligations imposed by the right to
adequate housing on States Parties to the African
Charter.250 It is further provided that States must
prioritise the right to housing of vulnerable and
marginalised groups, including people living with
or affected by HIV.
THE RIGHT TO HOUSING
111. The right to housing is often described as one of
the most important human rights.246 Due to the
inherently interrelated nature of human rights,
a denial of the right to housing potentially also
leads to a denial of an array of ancillary human
rights, such as the right to water and sanitation,
the right to food, the right to human dignity and
equality, and even the right to work.247 Article 25
of the Universal Declaration of Human Rights
guarantees the right of everyone to an adequate
standard of living, which includes, inter alia, a
right to food, clothing, housing, medical care and
necessary social services.248 A similar provision is
found in Article 11 of the International Covenant
on Economic, Social and Cultural Rights,
which recognises “the right of everyone to an
adequate standard of living for himself and his
family, including adequate food, clothing and
housing, and binds themselves to the continuous
246
247
115. In some of its decisions, the African Commission
has read into the African Charter an obligation on
the part of the State to refrain from embarking on
forced evictions or removal of groups of people
from their community.251 In Social and Economic
Rights Action Centre (SERAC) and Another
v. Nigeria, the African Commission noted that
housing rights are protected under the African
Charter through the combination of provisions
protecting the right to property (Article 14), the
right to enjoy the best attainable standard of
South African Human Rights Commission, The Right of Access to Adequate
248
Universal Declaration of Human Rights, Art. 25 (1).
Housing—Period: April 2000—March 2002, Chapter 2, https://www.sahrc.org.za/
249
ICESCR, Article 11 (1).
home/21/files/Reports/4th_esr_chap_2.pdf.
250
African Commission, Principles and Guidelines, paras. 77–79.
Christopher Golay et al., The Right to Housing—A Fundamental Right Affirmed By
251
SERAC and Other v. Nigeria (2001); see also, Centre for Minority Rights Development
The United Nations And Recognised In Regional Treaties And Numerous National
(Kenya) and Minority Rights Group International on Behalf of Endorois Welfare
Constitutions, http://www.cetim.ch/legacy/en/documents/bro7-log-A4-an.pdf.
Council v. Kenya (2009) AHRLR 75 (ACHPR 2009).
p.
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Report on the Study of the African Commission on Human and Peoples’ Rights
mental and physical health (Article 16) and the
protection accorded to the family (Article 18)252
CONCLUSION
116.
The great majority of civil, political, economic,
social and cultural rights provided under human
rights law are relevant to the HIV epidemic.
These rights have been interpreted at the global
and regional levels to highlight critical principles
to guide governments on their duties to respect,
protect, promote and fulfil human rights in the
context of HIV. This information is contained in
various documents, including general comments,
resolutions, case law and concluding observations
on State reports. Together, these global and
regional documents represent a corpus of norms
for ensuring a rights-based and effective response
to HIV in Africa.
the Organisation of African Unity (OAU), which is now the African Union. The African
p.
52
252
SERAC and Other v. Nigeria (2001).
Commission is comprised of 11 members, holds two ordinary sessions and two extra-
253
The African Commission is a quasi-judicial treaty body established under Article 30
ordinary sessions per year, and has the mandate to protect and promote human and
of the African Charter. The African Charter was adopted in 1981 by Member States of
peoples’ rights in Africa.
Report on the Study of the African Commission on Human and Peoples’ Rights
I V. T H E P R AC T I C E O F T H E
AFRICAN REGIONAL HUMAN RIGHTS
SYS T E M O N H I V
1.
This chapter provides an overview of the work
and indirectly through its promotion and protection
mandate, and through the work of several of its
subsidiary mechanisms. This has involved the
adoption of resolutions on specific issues relating
to HIV and the issuance of general comments
clarifying certain provisions of the African
Charter and the Maputo Protocol. In several of its
communications, the African Commission has also
dealt with issues pertinent to HIV, and some of the
subsidiary mechanisms established by the African
Commission—such as the Special Rapporteur on
the Rights of Women in Africa and the Special
Rapporteur on Prisons—have also addressed
HIV. The most important subsidiary mechanism
and engagement of African regional human rights
mechanisms on HIV-related issues. It describes and
assesses the nature and scope of the work of the
regional mechanisms, with a focus on the African
Commission253 (established under the African
Charter) and ACERWC (established under the
African Children’s Charter).
THE AFRICAN COMMISSION AND
THE HIV EPIDEMIC
2. Over the years, the African Commission has had the
opportunity to address the HIV epidemic directly
254
African Commission, Resolution 53 on the HIV/AIDS Pandemic.
255
African Commission, Resolution 141 on Access to Health.
258
African Commission, Resolution 346 on the Right to Education in Africa.
256
African Commission, Resolution 260 on Involuntary Sterilisation.
259
African Commission, Guidelines on the Conditions of Arrest, Police Custody and Pre-
257
African Commission, Resolution 275 on Protection against Violence.
Trial Detention in Africa (2014), 23.
p.
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Report on the Study of the African Commission on Human and Peoples’ Rights
established by the African Commission in relation
to the epidemic is the HIV Committee.
the prohibition of forced sterilisation and the
interconnection between rights. For example,
General Comment No. 3 expands on the contents
of the right to life by stressing that this right should
be interpreted broadly to include a dignified life
and economic rights. It notes that
HIV-related resolutions of the African Commission
3. As described in Chapter III (“Global and African
Regional Human Rights Norms Relating to
HIV”), the African Commission has had the
opportunity to provide guidance on issues related
to HIV in the region. For instance, the African
Commission has adopted important resolutions to
address the link between HIV and human rights.
Some of these resolutions include resolutions on
the HIV pandemic as a threat to human rights and
humanity,254 access to medicines in the context of
HIV,255 forced or involuntary sterilisation of HIVpositive women as a violation of human rights,256
and violence against persons on the basis of real or
imputed sexual orientation or identity.257
the right to life is aimed not only at securing the
continuation of biological life, but of dignified life.
The indivisibility of human rights further suggests
that the protection of dignified life lies in securing
not only the right to life as a civil and political
right, but social, economic and cultural rights as
well. The right to life should not be interpreted
narrowly. In order to secure a dignified life for
all, the right to life requires the realisation of all
human rights recognised in the [African] Charter,
including civil, political, economic, social and
cultural rights and peoples’ rights.260
4.
In the context of education, the Commission
issued Resolution 346, which calls on States to
“prohibit and prevent all forms of discrimination
in education against children with HIV/AIDS
based on their real or perceived status.”258 These
resolutions tend to draw the attention of States to
important human rights issues in the context of
HIV that warrant their urgent response.
7. In addition, General Comment No. 3 notes that
the right to life includes the need for countries
to “address more chronic yet pervasive threats
to life, for example with respect to preventable
maternal mortality, by establishing functioning
health systems.”261 Therefore, the right to life is
closely connected with access to health services,
presumably including prevention of and treatment
for HIV. This is important in that it places an
obligation on States to prevent death from AIDSrelated illness by ensuring universal access to lifesaving medications. Failure by States to address
barriers to life-saving medications in the context of
HIV may infringe the right to life.262
5. The African Commission also has issued important
guidelines relevant to HIV and human rights in
the region. For instance, the Guidelines on the
Conditions of Arrest, Police Custody and Pre-Trial
Detention in Africa, adopted in 2014, formulates
standards, principles and rules that African
governments can use to frame legislation. They note
that countries should ensure that measures seeking
to protect vulnerable populations, including people
living with HIV, should not be discriminatory or
applied in a discriminatory manner.259
Case law of the African Commission with relevance to HIV
8.
The
protective mandate of the African
Commission—which relates to the communication
procedure and State reporting process—remains
the strongest avenue to hold States accountable
to their obligations to respect, protect and
fulfil human rights in relation to HIV.263 While
the African Commission has yet to issue any
communications specifically dealing with HIV,
some of the provisions of the African Charter and
the Maputo Protocol provide it with the impetus to
interpret them in the context of HIV. For instance,
6.
More recently, the African Commission has
issued three general comments (Nos. 1, 2 and 3)
to clarify the provisions of the African Charter
and the Maputo Protocol. As described in
Chapter III, these general comments address
non-discrimination, the protection of the sexual
and reproductive health and rights of women,
p.
54
260
African Commission, General Comment No. 3.
261
African Commission, General Comment No. 3, para. 3.
262
Alicia E. Yamin, “Not Just a Tragedy: Access to Medications as a Right under
International Law,” Boston University International Law Journal 21 (2003): 352–371.
263
Articles 44–49, 55 and 56 of the African Charter relate to communication by State
and non-State actors, respectively. Article 62 of the African Charter and Article 26
Report on the Study of the African Commission on Human and Peoples’ Rights
Article 2 of the African Charter states that every
individual shall be entitled to enjoy the rights
and freedoms recognised and guaranteed in the
African Charter without distinction of any kind
on a number of specified grounds or statuses.264
Further, Article 1 of the Maputo Protocol defines
discrimination against women broadly to include
“any form of distinction, exclusion or restriction or
any differential treatment based on sex and whose
objectives or effects compromise or destroy the
recognition, enjoyment or the exercise by women
. . . in all spheres of life.” Article 2 of the Maputo
Protocol further prohibits discriminatory practices
against women.
noting their application to a range of persons. It
has stated that265
Article 2 lays down a principle that is essential to
the spirit of the African Charter and is therefore
necessary in eradicating discrimination in all its
guises, while Article 3 is important because it
guarantees fair and just treatment of individuals
within a legal system of a given country. These
provisions are non-derogable and therefore
must be respected in all circumstances in order
for anyone to enjoy all the other rights provided
for under the African Charter.
11.
In Legal Resources Foundation v. Zambia, the
9. Equality and non-discrimination are fundamental
pillars of human rights that are recognised in
virtually all human rights instruments. The right
to equality and non-discrimination presupposes
that all human beings must be treated in the same
manner, regardless of their social condition or
health status. A distinction is often made between
formal and substantive equality: while the former
tends to treat all human beings equally without
taking into consideration their socio-economic
conditions, the latter tends to pay attention to
peculiar circumstances of individuals, including
their socio-economic differences. A substantive
equality approach is crucial in the context of HIV
because it recognises the disadvantaged positions
of certain groups—including women, children,
prisoners and sexual and gender minorities—
and the need for their protection. The provision
of the Maputo Protocol on non-discrimination is
consistent with the notion of substantive equality.
African Commission noted that
the right to equality is very important. It means
that citizens should expect to be treated fairly
and justly within the legal system and be assured
of equal treatment before the law and equal
enjoyment of the rights available to all other
citizens. The right to equality is important for a
second reason. Equality or the lack of it affects
the capacity of one to enjoy many other rights.266
12.
In Good v. Republic of Botswana, the African
Commission described the importance and breadth
of the principle of non-discrimination, which it said
“guarantees that those in the same circumstances
are dealt with equally in law and in practice.”267
This was in line with its decision on Communication
245/02, Zimbabwe Human Rights NGO Forum
v. Zimbabwe, in which the African Commission
observed that the principles of equality and nondiscrimination apply to all persons.268
10. The African Commission has stated that Articles
2 and 3 of the African Charter are considered
fundamental, linked to the enjoyment of other
rights, and that they arguably protect people living
with HIV by affording them the rights to equality
and non-discrimination. There also are indications
that the provisions protect other key populations on
other grounds, such as disability, sexual orientation
and gender identity. The African Commission has
explained the importance and breadth of Articles 2
and 3 of the African Charter on various occasions,
13.
Furthermore, as described in Chapter III, the
African Commission has had the opportunity
to explain the scope and extent of Article 16,
which guarantees the right of every individual
to enjoy the best attainable state of physical and
mental health and places a duty on State Parties
to take the necessary measures to protect the
health of all peoples, particularly when they are
sick. In Purohit and Moore v. The Gambia, the
African Commission stressed in to Article 16 that
of the Maputo Protocol require States to submit periodic reports to the African
264
grounds of HIV and health status.
Commission on the measures they have taken to implement the provisions of these
265
Communication 241/01, Purohit and Moore v. The Gambia, para. 49.
instruments.
266
Communication 211/98, para 63.
The Committee on ESCR in its General Comment No. 20 has explained that the
267
Communication 313/05, Kenneth Good v. Republic of Botswana, para. 218.
phrase “other status” can be interpreted broadly to cover discrimination on the
268
Communication 245/02, Zimbabwe Human Rights NGO Forum v. Zimbabwe, para. 169
p.
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Report on the Study of the African Commission on Human and Peoples’ Rights
the “enjoyment of the human right to health
. . . is crucial to the realisation of all the other
fundamental human rights and freedoms.”269
Human Rights held that the deportation of an
HIV-positive person to a country where access to
treatment could not be guaranteed would amount
to a violation of the right to dignity under the
European Convention.275 Further, in the case of
Odir Miranda et al v. El Salvador—which involved
27 HIV-positive persons who were denied access
to medication that integrated the triple therapy
necessary to prevent death and improve their
quality of life—the Inter-American Commission
admitted the petition on the right to health,
although it concluded that there was no violation
of this right.276 It ordered the Government of El
Salvador to adopt urgent precautionary measures
for the victims in the case in order for them to
obtain the relevant medical care and antiretroviral
medications.277 This case is significant in the sense
that it portrays how precautionary measures can
be applied to good use in the context of HIV.
14.
The African Commission in Doebbler v. Sudan
states that “the prohibition of torture, cruel,
inhuman or degrading treatment or punishment
is to be interpreted as widely as possible to
encompass the widest possible array of physical
and mental abuses.”270 In this decision, the
African Commission emphasised that Article 5
of the African Charter prohibits not only actions
that cause serious physical or psychological
suffering, but also those that “humiliate or force
the individual against his will or conscience.”271
This interpretation could be applied to the HIV
context to prevent forced treatment and enforce
the requirements for informed consent.
15.
In Democratic Republic of Congo v. Burundi,
Rwanda, Uganda, the African Commission
condemned sexual violence during conflict as a
gross violation of the human rights of women.272
The African Commission noted that rape and
other acts of violence violated the right to the
integrity of one’s person.273 This was based on
the complaints of the Democratic Republic of
Congo that Rwandan and Ugandan forces had
been spreading HIV to the population of the
Democratic Republic of Congo by raping local
women, which Uganda denied.274 The African
Commission did not specifically address the HIV
allegation raised in this communication.
State reporting and HIV
17.
As part of its protective mandate, the African
Commission examines State reports submitted
under Article 62 of the African Charter and Article
26 of the Maputo Protocol, providing responses
in the form of concluding observations.278 This
process provides the African Commission with
the opportunity to assess the commitments that
States have made to addressing issues relating to
HIV and human rights within their jurisdictions.
Through this process, the African Commission
can clarify if steps taken by a State to address the
HIV pandemic are consistent with its obligations
to realise human rights in general, and the right to
health in particular.
16.
It is clear from these cases that the African
Commission has yet to specifically apply to HIV
the human rights protections provided under the
African Charter. Lessons can be drawn in this regard
from other jurisdictions, such as the European
and Inter-American human rights systems, which
have already adjudicated on HIV-related issues.
In D v. United Kingdom, the European Court of
269
Communication 241/01, Purohit and Moore v. The Gambia, para. 80.
270
Communication 236/2000, Curtis Doebbler v. Sudan, para. 37.
271
Communication 236/2000, Curtis Doebbler v. Sudan, para. 36.
272
Communication 227/99, Democratic Republic of Congo/Burundi, Rwanda, Uganda,
18. In some of its concluding observations to States,
the African Commission has drawn the attention
of States to gaps in their efforts to address the
HIV pandemic. For instance, in one of its
concluding observations to the Government
of Sudan, the African Commission notes
Prospects (Farnham UK: Ashgate Publishing, 2015), 243–274.
278
Protocol to submit periodic reports every two years.
279
para. 80.
273
Communication 227/99, Democratic Republic of Congo/Burundi, Rwanda, Uganda,
Communication 227/99, Democratic Republic of Congo/Burundi, Rwanda, Uganda,
ECHR, D v. UK, 2 May 1997.
276
Jorge Odir Miranda Cortez et al. v. El Salvador, Merits Report of 20 March 2009, IACHR
Case 12.249 Report No. 27/09.
277
p.
56
See African Commission, Concluding Observations and Recommendations on the Initial
and Combined Report of the Gabonese Republic.
281
para. 5.
275
See African Commission, Concluding Observations and Recommendations on the 4th
and 5th Periodic Report of the Republic of Sudan, para. 46.
280
para. 80.
274
These provisions require States that have ratified the African Charter and the Maputo
African Commission, Concluding Observations on the 3rd Periodic Report of the
Republic of Cameroon, para. XIV.
282
African Commission, Concluding Observations on the 3rd Periodic Report of the
Republic of Cameroon, paras. 84, 85 and Recommendation xxxvi.
283
African Commission, Concluding Observations and Recommendations on the Initial,
For a detailed analysis of this case see, Oscar Parra-Vera, “The Protection of the Right
1st, 2nd, 3rd and 4th Periodic Report of the Federal Democratic Republic of Ethiopia,
to Health through Individual Petitions before the Inter-American System of Human
Adopted during the 47th Ordinary Session of the African Commission on Human and
Rights,” ed. Ebenezer Durojaye, Litigating the Right to Health in Africa: Challenges and
Peoples’ Rights, Held from 12–26 May, 2010, Banjul, The Gambia, para. 68.
Report on the Study of the African Commission on Human and Peoples’ Rights
that while efforts to ensure access to medical
services and social security for all (including
vulnerable and marginalised groups) have been
commendable, the report fails to provide detailed
information on access to life-saving medication
for people living with HIV in the country.279 In
its response to a report from Gabon, the African
Commission recommends that the Government
of Gabon strengthen ongoing HIV sensitisation
programmes with a particular focus on children
and young people.280 In one of its concluding
observations to a report from Cameroon, the
African Commission urges the Government to
engage with relevant stakeholders with a view
towards ensuring the adoption of laws and
policies to protect the rights of people living
with HIV.281 It also expresses concern about the
judicial harassment of human rights defenders
working in the area of sexual orientation and
the “discrimination, stigma and violation of the
right to life and physical and mental integrity of
individuals based on their sexual orientation.”282
It goes on to urge the Government of Cameroon
to take appropriate measures to ensure the safety
and physical integrity of all persons, irrespective
of their sexual orientation, and to maintain an
atmosphere of tolerance towards sexual and
gender minorities in the country.
20.
The African Commission has also called on
Nigeria to repeal its law criminalising same-sex
sexual relations because it has the potential to
generate violence against persons on grounds
of their actual or imputed sexual orientation.
This law is also likely to drive underground this
group of persons vulnerable to HIV, thereby
creating an environment in which it is impossible
to effectively address the HIV epidemic in
the State.285 Further, the African Commission
recommended that Botswana reform a law that
requires minors to be accompanied by their
parents when being tested for HIV.286
21.
While concluding observations are not binding
on States, they do draw their attention to issues
that require further attention. Indeed, concluding
observations may be likened to advisory opinions
of courts on a specific human rights issue.287
HIV within subsidiary organs of the African Commission
22. Under Article 23 of the Rules of Procedures of
the African Commission, special mechanisms
are established to address various human rights
violations and accord the protection of rights in
several thematic areas. Special mechanisms of the
African Commission comprise special rapporteurs,
working groups and a Committee. Currently, there
are about 14 such mechanisms. Some of the more
relevant mechanisms include the following:
› The HIV Committee;288
› The Special Rapporteur on Prisons;289
›
Special Rapporteur on Refugees, Asylum
Seekers, Internally Displaced Persons and
Migrants in Africa;290
›
The Special Rapporteur on Rights of
Women;291
›
The Special Rapporteur on Freedom of
Expression and Access to Information;
19. In its concluding observations to the Government
of Ethiopia, the African Commission recommends
the enactment of laws to address human rights
violations experienced by people living with HIV
in the country.283 It further recommends that the
Government develop programmes to prevent
the incidence of mother-to-child transmission of
HIV in the country. In its fifth periodic review of
Uganda, the African Commission recommends
that Uganda “review and revise the HIV and AIDS
Prevention and Control Act (2014) . . . to ensure
that it fully conforms with Uganda’s regional and
international human rights obligations.”284
284
African Commission, Concluding Observations and Recommendations on the 5th
Periodic State Report of the Republic of Uganda, November 2015, para. 113.
285
African Commission, Concluding Observations and Recommendations on the 5th
Periodic Report of the Federal Republic of Nigeria, para. 81.
286
287
288
African Commission, Concluding Observations and Recommendations on the Initial
of-detention/ (accessed 15 June 2016).
290
and Migrants in Africa carries out its mandate by seeking, receiving, examining and
Thomas Buergenthal et al., International Human Rights in a Nutshell, Second ed.
acting on the situation of refugees, asylum seekers, migrants and internally displaced
(Minnesota: West Publishing, 1995), 46.
persons. This is done through undertaking studies, research, fact-finding missions,
The HIV Committee is the only special mechanism in the region that is specifically
assisting Member States of the African Union, cooperating and engaging in dialogue
mandated to address HIV. In 2010, it was decided that the African Commission
with relevant stakeholders, and raising awareness on the situation of its mandated
needed a specific mechanism for people living with, affected by and vulnerable to
population. For more information, see http://www.achpr.org/mechanisms/refugees-
HIV. Therefore, the African Commission established the HIV Committee. It has a broad
mandate on HIV-related human rights issues. For more information, see http://www.
289
The Special Rapporteur on Refugees, Asylum Seekers, Internally Displaced Persons
Periodic Report of the Republic of Botswana, para. 68.
and-internally-displaced-persons/.
291
The Special Rapporteur on Rights of Women in Africa was established by the African
achpr.org/mechanisms/hiv-aids/.
Commission in 1999. For more information, see http://www.achpr.org/mechanisms/
For more information, see http://www.achpr.org/mechanisms/prisons-and-conditions-
rights-of-women/.
p.
57
Report on the Study of the African Commission on Human and Peoples’ Rights
› Committee for the Prevention of Torture in
Africa;292
› The Working Group on Economic, Social and
Cultural Rights;293
› The Working Group on Rights of Older Persons
and People with Disabilities.
Undertaken in 2015 by the African Commission’s
Special Rapporteur on Human Rights Defenders,
the Study on the Situation of Women Human
Rights Defenders calls on national human rights
institutions to pay specific attention to female
human rights defenders “working on issues and
contexts of criminalised identities, such as the
rights of sex workers, women living with HIV
accused of deliberate transmission and sexual
orientation and gender identity.” The study
further calls for the protection of female human
rights defenders who are working on issues that
are criminalised in their countries.297
23. These mechanisms have important roles to play in
addressing HIV in the region. Some have already
addressed the epidemic on several occasions. The
Special Rapporteur on the Rights of Women in
Africa has often recognised the particular needs of
women living with HIV, the discrimination faced by
women living with HIV and the gendered aspect
of HIV. The Special Rapporteur’s Declaration on
the Occasion of International Women’s Day in
2009 was specifically focused on “equal sharing of
responsibilities between women and men, including
providing care in the context of HIV/AIDS.”294 She
noted that women have limited and unequal access
to care, antiretroviral medicines and treatment, and
that they bear the greatest burden in terms of caring
for and supporting people living with HIV, including
orphans and the affected. They also are subjected
to a very harsh form of stigma and discrimination,
manifested through violence of all kinds, particularly
expulsion from the home, deprivation of their rights
to inheritance and more.295
26.
Similarly, the Special Rapporteur on Prisons—
one of the oldest mechanisms of the African
Commission—has also addressed the HIV
epidemic. For example, in a mission to assess the
situation of prisons in Cameroon, the Special
Rapporteur on Prisons addressed issues relevant
to HIV, including the prevalence of HIV in prison.
The Special Rapporteur expressed concern at
the failure of the Government to provide her
with information on the HIV prevalence rate in
prisons, noting that it was not “the acceptable
state of affairs given the potential threat posed
by the pandemic.”298 The Special Rapporteur
recommended that Cameroon should initiate
and intensify information and awareness-raising
sessions about HIV for prisoners, encourage
voluntary testing for HIV and strengthen
structures for psychological care and counselling,
particularly before and after testing for those
found to be HIV-positive.299
24.
In the Intersession Report of the Mechanism of
the Special Rapporteur on the Rights of Women in
Africa since its Establishment, the Special Rapporteur
noted the need for action by State Parties through
the enactment of legislation to protect women with
HIV and AIDS from all forms of discrimination and
through the establishment of mechanisms to ensure
their full participation in the process of providing
access to health care and antiretroviral therapy.296
27. The Special Rapporteur on Prisons also addressed
policies related to the treatment of prisoners with
HIV in reports on prison conditions in Uganda
and South Africa.300 Further, in a 2001 response to
a policy in Namibia that prohibited HIV-positive
prisoners from working in the kitchen, the Special
25. An initiative for the protection of women human
rights defenders is also worth mentioning.
294
292
The Committee for the Prevention of Torture in Africa (Committee on Torture) was
the International Women’s Day,” African Commission, 8 March 2009, http://www.achpr.
created in October 2002 by the African Commission. Its purpose is to raise awareness
of the Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel,
org/press/2009/03/d15/.
295
Inhuman or Degrading Treatment or Punishment in Africa (the Robben Island
org/press/2009/03/d15/.
296
its mandate by writing letters regarding alleged violations, developing strategies to
293
http://www.achpr.org/sessions/52nd/intersession-activity-reports/rights-of-women.
297
Defenders in Africa (Banjul: African Commission, 2015), para. 201, http://www.achpr.
The Working Group on Economic, Social and Cultural Rights is tasked with developing
org/files/special-mechanisms/human-rights-defenders/report_of_the_study_on_the_
Economic, Social and Cultural Rights, providing a draft of revised guidelines for State
58
African Commission, Report of the Study on the Situation of Women Huma Rights
more information, see http://www.achpr.org/mechanisms/cpta/.
and proposing to the African Commission a draft set of Principles and Guidelines on
p.
Soyata Maiga, Intersession Report of the Mechanism of the Special Rapporteur on the
Rights of Women in Africa since its Establishment (Banjul: African Commission, 2012),
promote the Robben Island Guidelines, analysing the domestic laws of States and their
compliance with international standards, and conducting visits to Member States. For
“Declaration by the Special Rapporteur on Women’s Rights in Africa on the Occasion of
the International Women’s Day,” African Commission, 8 March 2009, http://www.achpr.
Guidelines) and to facilitate the implementation of the Robben Island Guidelines
throughout the African Union Member States. The Committee on Torture carries out
“Declaration by the Special Rapporteur on Women’s Rights in Africa on the Occasion of
situation_of_women_human_rights_defenders_in_africa.pdf.
298
Vera Mlangazuwa Chirwa, Prisons in Cameroon: Report of the Special Rapporteur on
reporting, undertaking relevant studies and research, and making a progress report to
Prisons and Conditions of Detention in Africa (Banjul: African Commission, 2002), 21,
the African Commission. For more information, see http://www.achpr.org/mechanisms/
http://www.achpr.org/files/sessions/37th/mission-reports/cameroon-prisons/misrep_
escr/.
specmec_priso_cameroon_2002_eng.pdf.
Report on the Study of the African Commission on Human and Peoples’ Rights
Rapporteur states that “discrimination against
people suffering from HIV/AIDS is not allowed.”301
Assembly twice every year during the summits of
the African Union.
T he HIV Committee
Activities of the HIV Committee
28. In recognition of the specific and serious human
32.
The HIV Committee undertakes a number of
rights challenges posed by the HIV epidemic in
Africa, the African Commission established the HIV
Committee in May 2010 through Resolution 163.302
activities, including conducting visits to Member
States (with their consent) to engage stakeholders
on HIV-related human rights issues. During
these visits (also known as “missions”), the HIV
Committee engages with government officials
and civil society organizations (among others) to
learn about the State’s laws, policies, practices
and programmes that relate to the human rights
of persons living with HIV and other populations.
For example, in 2016, the HIV Committee
undertook a country visit to Côte d’Ivoire,307 and
in 2017, the Committee completed a country
visit to Namibia.308 After it completes a mission,
the HIV Committee publishes a mission report
that contains general recommendations to the
State. Mission reports also often include specific
recommendations to the international community,
civil society and other stakeholders.309
Mandate and composition of the HIV Committee
29.
The mandate of
the HIV Committee was
originally authorised for two years, but it has
been renewed by the African Commission several
times.303 The African Commission appoints the
HIV Committee’s chairperson, members and
expert members, either by consensus or by vote.304
Since its establishment, the HIV Committee has
had three members who are Commissioners of
the African Commission, one of whom has been
appointed as Chairperson.
30.
The HIV Committee also has expert members
who are not Commissioners. To be appointed as an
expert member, candidates must be nationals of an
African Union Member State, and they must have
expertise in protecting and promoting the rights
of individuals living with HIV and those who are
at risk, vulnerable to and affected by HIV. When
a position is available, the Committee accepts
nominations from individuals, non-governmental
organizations, Member States, nation human
rights institutions and other institutions.305
Currently there are six expert members on the
HIV Committee from various backgrounds.
33. The HIV Committee’s mandate also requires it to
recommend concrete strategies to protect the rights
of persons living with HIV, those at risk and those
vulnerable to HIV. To develop effective strategies,
the HIV Committee may conduct studies to better
understand the human rights conditions and
situations surrounding these persons.310
34.
The HIV Committee also receives analyses and
responds to reliable information from credible
sources on allegations of human rights violations.
Upon learning of alleged violations, the HIV
Committee may write letters to the relevant State
and to non-State actors that are involved (including
corporations). These letters request information
about what steps have been taken to remedy the
alleged violations. The HIV Committee may
31. The HIV Committee submits intersession activity
reports to the African Commission twice each year.
These reports outline the activities that the HIV
Committee has undertaken.306 This information
is included in the African Commission’s activity
reports, which are submitted to the African Union
299
Chirwa, Prisons in Cameroon, 25.
300
African Commission, Report on the Mission of the Special Rapporteur on Prison &
Conditions of Detentions in Africa to Uganda (Banjul: African Commission, 2001),
http://www.achpr.org/files/sessions/33rd/mission-reports/uganda/achpr33_misrep_
Peoples’ Rights (Banjul: African Commission, 2010), Rule 23(2).
305
specmec_priso_uganda_2001_eng.pdf; and Mission to the Republic of South Africa,
For example, see African Commission, Call for Applications for the Nomination of
Expert Members to Serve on the Committee on the Protection of the Rights of People
Report of the Special Rapporteur on Prisons and Conditions of Detention in Africa
Living with HIV and Those at Risk, Vulnerable to and Affected by HIV (11 April 2014).
(2004), http://www.achpr.org/files/sessions/37th/mission-reports/prisons-2004/
306
These are available at http://www.achpr.org/mechanisms/hiv-aids/.
misrep_specmec_priso_southafrica_2004_eng.pdf.
307
“Press Release on the Visit of the Committee on the Protection of the Rights of People
301
Chirwa, Prisons in Cameroon, 25.
Living with HIV (PLHIV) and Those at Risk, Vulnerable to and Affected by HIV of the
302
African Commission, Resolution 163 on the Establishment of a Committee on the
African Commission on Human and Peoples’ Rights to the Republic of Côte d’Ivoire,”
Protection of the Rights of People Living With HIV (PLHIV) and Those at Risk,
Vulnerable to and Affected by HIV.
303
304
African Commission, 30 May 2016, http://www.achpr.org/press/2016/05/d302/.
308
For example, see African Commission, Resolution 220 on the Extension of the Mandate
“Press Release on the Country Visit to the Republic of Namibia,” African Commission,
24–29 April 2017, http://www.achpr.org/press/2017/04/d352/.
of the Committee on the Protection of the Rights of People Living with HIV (PLWHIV),
309
African Commission, Rules of Procedure, Rule 60.
and Those at Risk, Vulnerable to and Affected by HIV in Africa (2 May 2012).
310
For example, see African Commission, Resolution 290 on the Need to Conduct a Study
African Commission, Rules of Procedure of the African Commission on Human and
on HIV, the Law and Human Rights.
p.
59
Report on the Study of the African Commission on Human and Peoples’ Rights
propose that the African Commission take a
certain action or decision.
allow them grow up in a healthy and protected
manner.”314 These more general references to the
rights of children to be healthy and to access health
care on a non-discriminatory basis could easily be
applied to the HIV context in the future.
35. The HIV Committee also obtains and disseminates
information through promotional activities,
such as panels, training for non-governmental
organisations engaged in HIV-related issues and
round-table meetings.311 The HIV Committee
often coordinates these activities with other
relevant special rapporteurs and working groups
under the African Commission or the UN.
39. Its General Comment No.2 on Article 6 of the
African Children’s Charter on the Right to a
Name, Registration at Birth, and to Acquire
a Nationality is the second general comment
adopted by ACERWC.315 It also does not make any
specific reference to HIV. In General Comment
No. 2, ACERWC adopts a broad interpretation
of Article 6 of the African Children’s Charter,
noting that
HIV-RELATED ISSUES AND OTHER AFRICAN
REGIONAL HUMAN RIGHTS BODIES
ACERWC
36.
ACERWC draws its mandate from Articles 32
through 46 of the African Children’s Charter.
Similar to the African Commission, ACERWC
possesses a mandate that is both promotional
and protective, but it has not yet addressed HIV
specifically in its case law, guidelines, general
comments or mission reports.
37. ACERWC has adopted two general comments,
but neither has dealt directly with issues relating
to HIV and human rights. General Comment No.
1 deals with children of imprisoned parents under
Article 30 of the African Children’s Charter.
While it does not specifically address HIV and
the specific vulnerabilities that such children
face with respect to HIV, General Comment No.
1 does make several statements that could be
applied to the context of HIV.312 For example, it
highlights Article 30(1) of the African Children’s
Charter, which indicates that State Parties
“shall undertake to provide special treatment
to expectant mothers.”313 This section could be
applied to PMTCT activities by requiring States
to provide this specific treatment.
the rights to a name, to birth registration and to
acquire a nationality cannot be fully implemented
unless the cardinal principles of children’s rights
are carefully observed. The implementation
of those rights requires taking into account the
best interests of the child, non-discrimination
principles, his/her survival, development and
protection as well as his/her participation.
The implementation of Article 6 also depends
on good understanding of the principle of
interdependence and indivisibility of children’s
rights in general and the interdependence and
indivisibility of the three rights provided for
under Article 6 in particular.316
40. This interpretation can potentially be applied to
advance the rights of children in the context of
HIV. Given the serious impact of HIV on children
and young people in the region, it is imperative
that ACERWC consider adopting a general
comment or resolution on this issue. In doing
so, it can draw inspiration from its counterparts
at the international level, which have directly
addressed this issue.317
38.
Additionally, General Comment No. 1 speaks
41. There are more informal ways that ACERWC
about a child’s “inherent” right to life and right
to development, which “entails a comprehensive
process of realizing children’s rights in order to
has addressed HIV. In its 2002 inaugural
meeting, one of the thematic issues discussed was
orphans living with and infected by HIV.318 At its
311
312
For example, see Reine Alapini-Gansou, Intersession Report of the Committee on the
316
As above, para. 13.
Protection of the Rights of Persons Living with HIV/AIDS and Those at Risk, Intersession
317
See UN Committee on the Rights on the Child, General Comments No. 3 on HIV/
Activity Report, 50th Ordinary Session (Banjul: African Commission, 2011), http://www.
AIDS and the Rights of the Child, UN.Doc CRC/GC/2003/3 (17 March 2003); and UN
achpr.org/files/sessions/50th/inter-act-reps/148/achpr50_specmec_hivaids_actrep_
Committee on the Rights on the Child, General Comment No. 4 on Adolescence Health
gansou_2011_eng.pdf.
and Development in the Context of the Convention on the Rights of the Child, UN.Doc
ACERWC, General Comment No. 1 (Article 30 of the African Charter on the Rights and
Welfare of the Child) on Children of Incarcerated and Imprisoned Parents and Primary
CRC/GC/2003/4 (1 July 2003).
318
Caregivers (2013), http://www.acerwc.org/?wpdmdl=8597.
p.
60
313
ACERWC, General Comment No. 1, para. 9.
314
ACERWC, General Comment No. 1, para. 25.
315
ACERWC, General Comment No. 2 on Article 6 of the African Children’s Charter on
“African Committee of Experts on the Rights and Welfare of the Child,” IHRDA,
accessed 23 June 2016, http://www.ihrda.org/515-2/.
319
Amanda Lloyd, “Report of the Second Ordinary Session of the African Committee of
Experts on the Rights and Welfare of the Child,” African Human Rights Law Journal 2
(2003): 329.
the Right to a Name, Registration at Birth, and to Acquire a Nationality”, 16 April 2014,
320
Lloyd, “Report,” 329.
ACERWC/GC/02 (2014)
321
ACERWC, Concept Note of the 25th Day of the African Child (DAC), 2015 (Addis
Report on the Study of the African Commission on Human and Peoples’ Rights
second session in February 2003, the control of
HIV and other causes of the ill health, as well
as high mortality among children in Africa, were
recognised as priorities.319 ACERWC resolved to
monitor and report on the impact of HIV and
to monitor the relevant activities of governments
on these issues.320
by not providing health-care facilities and clinics
and by not protecting female children from sexual
abuse, the respondent government failed to ensure
that children enjoyed the right to health.
45. ACERWC has also addressed HIV in a limited
way as part of its guidance on how countries
should report on their compliance with the
African Children’s Charter. In the States Parties
Reporting Guidelines, ACERWC indicates that
countries should provide data on the death of
children from AIDS-related illness (in addition
to other illnesses), measures taken to prevent
transmission of HIV from mother-to-child,
how many mothers were provided with PMCT
services and the percentage of children born with
HIV.327 The Guidelines, however, do not require
countries to provide any information related to
the rights of children and adolescents to HIVrelated health care (including health information).
42.
HIV is addressed in the Concept Note of the
25th Day of the African Child in 2015. In this
document, ACERWC noted that child marriage
is caused by “gender inequality due to entrenched
societal differentiation between males and
females,” including HIV status.321 Not only was
HIV status a cause of child marriage, but it was
also a result, and ACERWC states that “child
brides are prone to disabilities associated with
early childbirth. . . . including HIV.”322
43.
Under its protective mandate, ACERWC has
touched on issues with implications for HIV and
the rights of children through its jurisprudence,
State reporting process and mission visits. For
instance, in addressing children’s health in
IHRDA and Open Society Justice Initiative
(OSJI) (on behalf of children of Nubian
descent in Kenya) v. Kenya,323 ACERWC noted
that “statelessness is particularly devastating
to children in the realisation of their socioeconomic rights such as access to health care.”324
ACERWC further found in this case that denial
of basic medical services would violate the right
to health.325 This interpretation establishes
a State’s obligation to provide basic medical
services to children, and it therefore may be
useful in the future to ensure access to HIVrelated health-care services for children.
46.
Under Article 45 of
the African Children’s
Charter, ACERWC also is empowered to resort to
any appropriate method of investigation in relation
to any issue covered by the African Children’s
Charter.328 Although the mission reports thus far
conducted by ACERWC have a section dedicated
to the right to health, HIV was not covered.329 This
was a missed opportunity to deal with HIV in the
context of children’s rights.
47.
Finally, ACERWC issues concluding observations
following the consideration of State Parties reports.
Concluding observations highlight any major issues
of concern and make recommendations to countries
on the measures that can be implemented to
complement the progress achieved and the challenges
faced. ACERWC has raised concerns regarding
HIV in a number of concluding observations. For
instance, in its concluding observations to Guinea,
the Committee notes the high infant mortality due to
HIV and recommends “raising awareness on HIV.”330
It gave a similar recommendation to Sudan.331
44. In Michelo Hunsungule on behalf of children in
Northern Uganda v. The Government of Uganda,
ACERWC missed an opportunity to clarify the
obligations of States in relation to the right to
health and protection of the girl child from sexual
abuse during a conflict period.326 It rejected the
complaints of the applicants, who alleged that
Ababa: ACERWC, 2015), para. 11, http://www.repssi.org/download/DAC%20
329
For example, see ACERWC, Report on the Advocacy Mission to Assess the Situation
CONCEPT%20NOTE%20CHILD%20MARRIAGE.pdf.
of Children in South Sudan (Addis Ababa: ACERWC, 2016), http://www.acerwc.
322
ACERWC, Concept Note of the 25th Day of the African Child (DAC), para. 14.
org/?wpdmdl=9490; and ACERWC, Report of the ACERWC to Assess the Situation
323
Decision No 002/Com/002/2009, IHRDA and Open Society Justice Initiative (OSJI)
of Children Affected by the Conflict in the Central African Republic (Addis Ababa:
(on behalf of children of Nubian descent in Kenya) v. Kenya, 22 March 2011, para. 46.
324
As above, para. 46.
325
As above, para. 59.
326
Communication 2/2009, Hansungule and Others (on behalf of children in Northern
Uganda) v. Uganda, Twenty-First Ordinary Session (15–19 April 2013).
327
328
ACERWC, 2014), http://www.acerwc.org/?wpdmdl=9478.
330
ACERWC, Concluding Observations: African Committee of Experts on the Rights and
Welfare of the Child to the Government of Guinea, para. 30, http://www.acerwc.org/
download/concluding_observations_guinea/?wpdmdl=8745.
331
ACERWC, Recommendations of the African Committee of Experts on the Rights and
ACERWC, State Parties Reporting Guidelines (Addis Ababa: ACERWC, 2015), paras.
Welfare of the Child to the Government of the Republic of Sudan on the Initial Report
21(a), 24(c) and 26(e), http://www.acerwc.org/?wpdmdl=8694 (accessed 19 June 2016).
on Implementation of the African Charter on the Rights and Welfare of the Child
“African Committee of Experts on the Rights and Welfare of the Child,” IHRDA,
(Addis Ababa: ACERWC, 2012), 4, http://www.acerwc.org/download/concluding_
accessed 17 January 2016, http://www.ihrda.org/515-2/.
observations_sudan/?wpdmdl=8757.
p.
61
Report on the Study of the African Commission on Human and Peoples’ Rights
48. ACERWC has also given much more specific
recognising the competence of the African
Court to receive cases from individuals and nongovernmental organisations.336
and in-depth recommendations to countries. It
recommends that Liberia
increase the comprehensive HIV information
education campaign; make stronger its efforts
to ensure proper coverage of HIV testing and
antiretroviral medicines provision by giving a
particular attention to pregnant adolescents
in rural areas and children born to mothers
with HIV, and seek technical assistance from
the concerned international organizations and
[civil society organisations].332
52. Although the African Court has not yet received
an HIV-related case, it could be a place where
future jurisprudence regarding the rights of
individuals with HIV is developed. In particular,
the advisory jurisdiction of the African Court
can be explored by civil society organisations to
request authoritative interpretation of the human
rights instruments related to HIV in the region.337
However, in a May 2017 decision, the African
Court held that only African non-governmental
organisations that have observer status before—
or a Memorandum of Understanding with—the
African Union are entitled to bring a request for
advisory opinion before it.338
49.
In its recommendations to Tanzania, ACERWC
recommends that the country expand its youth
education on STIs to incorporate this type of
education into primary school curriculums.333
They also recommend that South Africa step up
its reproductive health education for school-aged
children and work to disseminate antiretroviral
medicines more effectively.334 Despite the ability
to give recommendations, there unfortunately is
no system by which ACERWC evaluates country
reports to ensure compliance on HIV-related issues.
CONCLUSION
53. The African regional human rights system includes
institutions and mechanisms that can play a critical
role in interpreting and applying human rights
norms, and that can support accountability in the
context of HIV. At the centre of these mechanisms
is the African Commission, the oldest institution and
one that has relied on its protective and promotional
mandate and special mechanisms to advance the
rights of people, including rights related to HIV.
Although the African Court has yet to deal with a
specific case on HIV and human rights, its advisory
mandate provides a platform that can be useful for
advancing the rights related to HIV. Furthermore,
while ACERWC still awaits its first case on children’s
rights and HIV, it also has relied on its thematic
issues and promotional and protective mandates to
explain how the right to health and medical attention
cover children living with and affected by HIV. In its
guidelines on State reporting, however, ACERWC
has missed the opportunity to oblige States to report
specifically on what they do to give effect to the rights
of children and adolescents with HIV-related healthcare needs (including a need for health information).
T he African Court
50.
The African Court was established to hear cases
related to the African Charter and the Maputo
Protocol. It was established under the Protocol
to the African Charter on Human and Peoples’
Rights on the Establishment of an African Court on
Human and Peoples’ Rights (the Court Protocol).335
51.
The African Court has been silent on the issue
of HIV to date, but this could be due to some of
the strict procedural limitations that it faces. The
African Court’s jurisdiction is relatively limited,
as it only applies to States that have ratified the
Court Protocol. Furthermore, the Court Protocol
does not enable individuals or non-governmental
organisations to access the African Court directly
unless the respondent State has made a specific
Declaration accepting the jurisdiction of the
Court (Article 34(6) of the African Protocol). As of
October 2017, only eight of the 30 States Parties
to the Court Protocol had made the declaration
332
needs to be done to ensure that the full potential of
ACERWC, Concluding Recommendations by the African Committee of Experts on the
Rights and Welfare of the Child (ACERWC) on the Liberia Report on the Status of the
333
54.
In spite of these positive elements, much more
concluding_observations_tanzania/?wpdmdl=8756.
334
the Rights and Welfare of the Child (ACERWC) on the Republic of South Africa Initial
www.acerwc.org/?wpdmdl=8747.
Report on Implementation of the African Charter on the Rights and Welfare of the
ACERWC, Concluding Recommendations by the African Committee of Experts on
Child (Addis Ababa: ACERWC, 2014), para. 49, http://www.acerwc.org/download/
the Rights and Welfare of the Child (ACERWC) on the Republic of Tanzania Report on
the Statuts [sic] of implementation of the African Charter on the Rights and Welfare
p.
62
ACERWC, Concluding Recommendations by the African Committee of Experts on
Implementation of the African Charter on the Rights and Welfare of the Child, 10, http://
of the Child (Addis Ababa: ACERWC, 2010), 12–13, http://www.acerwc.org/download/
concluding_observations_south_africa/?wpdmdl=8754 (accessed 22 June 2016).
335
“Welcome to the African Court,” African Court on Human and Peoples’ Rights, accessed
19 June 2016, http://www.african-court.org/; and “African Court on Human and Peoples’
Report on the Study of the African Commission on Human and Peoples’ Rights
the regional human rights system is used to advance
HIV-related human rights on the continent. Some
of the key challenges currently facing the African
system in relation to HIV include the following.
56. The HIV Committee has made efforts to link
with some of the relevant special rapporteurs in
its work, particularly the Special Rapporteur on
the Rights of Women in Africa. Broadly speaking,
however, related mechanisms fail to regularly
address HIV-related issues. This may be due
to their lack of the necessary knowledge and
expertise to address HIV-related issues and the lack
of specific guidelines about how their mandate
should address the problem of HIV and human
rights in Africa.339 This, in turn, limits the impact
of the regional mechanisms on HIV and human
rights-related issues.340 There is a need for the
HIV Committee to reach out to mechanisms such
as the respective Special Rapporteurs on Prisons
and Human Rights Defenders and the working
groups on Indigenous Peoples/Communities and
on Older Persons and People with Disabilities.
Limited focus on HIV from all mechanisms
55.
Thus far, very few regional mechanisms (apart
from the HIV Committee) have addressed HIVrelated issues. The African Commission and
the African Court have yet to adjudicate on an
HIV-related complaint. There are a number of
special mechanisms of the African Commission
whose mandates are relevant to HIV, but that
are not specifically mandated to address HIV.
For example, the Working Group on the Rights
of Older Persons and People with Disabilities is
developing a Protocol on the Rights of People
with Disabilities and Guidelines for State Parties
on the implementation of the rights of persons
with disabilities. Integrating HIV and human
rights issues relevant to persons with disabilities
into these documents would be an effective way of
infusing HIV into the work of this Group.
57. There are a number of key HIV and human rights
issues (set out in more detail in Chapter V)—as
well as critical related rights contained within the
African Charter, the Maputo Protocol and the
Rights,” African Commission, accessed 19 June 2016, http://www.achpr.org/about/
afchpr/.
336
The eight States are Benin, Burkina Faso, Côte d’Ivoire, Ghana, Malawi, Mali, Rwanda
and Tanzania. See “Welcome to the African Court,” African Court on Human and
Peoples’ Rights, accessed 19 June 2016, http://www.african-court.org/.
337
338
See Article 4 of the African Protocol on the Establishment of the Court and Rule 68 of
Accountability Project (SERAP), No. 001/2013, Advisory Opinion, 26 May 2017.
the Rules of Procedure of the African Court on Human and Peoples’ Rights.
339
Gumedze, “HIV/AIDS and Human Rights,” 190.
See African Court, Request for advisory opinion by the Socio-Economic Rights and
340
As above.
p.
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Report on the Study of the African Commission on Human and Peoples’ Rights
African Children’s Charter—that have received
limited focus (if any) in relation to HIV. This includes
the right to information, which is critical for young
people’s access to sexual and reproductive health
information, and the right to work. An exposition
of the right to health in the context of HIV would
also be particularly important for elucidating
the sexual and reproductive health rights of
vulnerable and key populations and for increasing
their access to HIV services. Issues—such as the
criminalisation of HIV transmission and exposure
and the rights of key populations—need to receive
increased focus. The African Commission and its
mechanisms have made efforts, both in their work
and their country missions, to focus on HIV and
human rights issues affecting vulnerable and key
populations (such as women and prisoners).341
The African Commission has made several efforts
to address the rights of women in the context of
HIV and the impact of gender inequality, harmful
gender norms and gender-based violence. Despite
this, there is a need for a far stronger focus on key
populations—including gay men who have sex
with men, transgender persons, sex workers, people
who inject drugs and indigenous populations—in
order for the HIV Committee to affect some of
the most critical legal and human rights barriers to
fast-tracking the end of AIDS in Africa.
use of its powers, such as by conducting factfinding missions or making recommendations on
HIV and human rights issues. This work is critical
to mobilising accountability for rights-based
responses to HIV among States. It is also critical
for civil society groups to engage more with the
HIV Committee on issues relating to human rights
violations in the context of HIV in the region.
For instance, civil society groups can explore the
urgent appeal powers of the HIV Committee by
bringing human rights violations relating to HIV
to its attention.
Limited awareness and visibility of the mechanisms
60. Affected individuals and civil society organisations
are often unaware of the existence of the regional
mechanisms. Publicly available information
on the regional mechanisms and how to best
approach them is not easily available. Civil
society organisations and people affected by HIV
have limited information on the mandate of the
regional mechanisms, the process for making a
communication or otherwise interacting with the
mechanisms, and how to contact them. Despite this,
the HIV Committee has made efforts to interact
with government institutions and civil society in
country visits and through other forums.342 For
example, it has attempted to informed civil society
about its work and how civil society organisations
can interact with the HIV Committee and the
African Commission, and it has conducted training
for members of civil society in order to promote
greater involvement of civil society in the African
Commission’s mechanisms.343 It has also received
petitions and communications from civil society
in connection with human rights violations.344
Despite these efforts, broader initiatives to raise
awareness may be required over and above these
ad hoc interactions during country visits.
Limited use of the full range of powers available to the HIV
Committee
58. The HIV Committee has a broad mandate that
provides for (amongst other things), the following:
› investigating information on the situation and
rights of people living with HIV and affected
populations;
› developing guidelines;
› undertaking fact-finding missions;
›
engaging with stakeholders on rights-based
responses to HIV; and
› making recommendations.
Inaccessibility of the mechanisms
61. The regional mechanisms are inaccessible to civil
59. However, the HIV Committee has not made full
society organisations and people affected by HIV.
To participate in the African Commission’s public
session or to lodge a complaint before the African
Commission, civil society organisations must have
observer status. This can be difficult to obtain
use of its broad powers, in part due to challenges
such as resource constraints and limited awareness
about the HIV Committee among civil society. It
is critical that the HIV Committee makes greater
342
For example, the HIV Committee held a workshop on HIV, the law and human rights
in Africa at the International Conference on AIDS and STIs in Africa in Zimbabwe in
341
p.
64
For example, the Promotion Mission to Sudan in 2015 focused on human rights issues
December 2015. It also coordinated a “Meet the Experts” session on the role of the
of particular concern for vulnerable populations (such as women and children, elderly
African Commission in advancing human rights in the context of HIV in Africa at the
persons, persons with disabilities, individuals in detention and people living with HIV).
International Conference on AIDS and STIs in Africa in South Africa in December 2013.
Report on the Study of the African Commission on Human and Peoples’ Rights
and travel to public sessions is costly.345 Similarly,
the African Court does not permit individuals to
approach the court on a matter against a State
party unless that State has signed the declaration
permitting such access. To date, very few countries
in Africa have signed the declaration, meaning
that people affected by HIV and civil society
organisations have limited access to the African
Court. Thus, it is unsurprising that the African
Court has yet to issue any decision specifically
relating to HIV.
343
Resource constraints
62.
The
African Commission and its special
mechanisms are hampered by resource constraints
that limit their ability to carry out their activities,
such as conducting missions and fact-finding visits.
This obstructs efforts to establish a comprehensive
approach to HIV and human rights issues,
resulting in a tendency towards ad hoc responses
where resources allow.
For example, the HIV Committee held a training session in Banjul in 2011 for members of
non-governmental organisations from the sub-region. See Gansou, Intersession Report.
344
For example, the HIV Committee received a complaint from the Human Rights
345
The lack of understanding of the African Commission’s work makes some civil society
Development Initiative in 2011 regarding violations of the rights to confidentiality of
organizations view attending sessions of the African Commission an unnecessary
people living with HIV in Tanzania.
expense.
p.
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Report on the Study of the African Commission on Human and Peoples’ Rights
V. K E Y H U M A N R I G H T S C O N C E R N S
A N D G O O D P R AC T I C E S I N T H E H I V
RESPONSE IN AFRICA
1.
Across the continent, countries have introduced
laws and taken other measures to respond to the
legal challenges posed by the epidemic and to
expand access to HIV prevention, treatment and
care services. In spite of these efforts, human
rights violations in relation to HIV continue to
occur. This includes discrimination and inequality,
coercive HIV testing, barriers to treatment access,
violations of the human rights of women and girls,
failure to uphold the human rights of children,
and criminalisation of people living with HIV
and members of key populations. These not
only represent human rights violations: they are
p.
66
impediments to efforts to end the AIDS epidemic
in Africa, stifling health-seeking behaviours and
limiting the ability of stakeholders and service
providers to address the epidemic.
2.
This chapter describes the key HIV-related
human rights challenges on the continent—and
the good practices and effective measures and
approaches adopted to respond to them in some
African countries. The aim of this chapter is
not to provide an exhaustive description of all
human rights challenges, but to highlight key
issues and suggest actions that governments
Report on the Study of the African Commission on Human and Peoples’ Rights
can take to fulfil their human rights obligations
related to HIV care and prevention.
and sexual abuse, expulsion from their homes
and communities, obstructions to seeing their
children and dispossession of property—all of
which increase their vulnerability.349 Individuals
from key populations similarly are more
vulnerable to human rights abuses because of the
intersectionality between their HIV status and
other forms of discrimination and stigmatisation.
INEQUALITY AND DISCRIMINATION
AGAINST PEOPLE LIVING WITH HIV 346
3.
People
living with HIV in Africa and
globally continue to experience high levels of
discrimination and stigma on the basis of their
HIV status.347 This environment hinders efforts
to end the HIV epidemic because it discourages
people living with HIV from disclosing their
status to family members and sexual partners,
and it undermines their ability and willingness to
access and adhere to treatment.348
5.
People living with HIV who have TB face the
stigma and discrimination of both illnesses.
Stigma and discrimination targeting people
with TB takes place in the workplace, healthcare facilities and communities through travel
restrictions and mandatory treatment (to name
just a few violations).350 Health workers also have
been known to deny equal access to TB clinics for
people living with HIV, sex workers, transgender
people and other marginalised populations.351
4. Women report stigma, exclusion and harassment
within their families, communities, workplaces,
schools, health-care facilities, churches and other
places of worship. They also suffer from physical
EMPLOYMENT STIGMA AND DISCRIMINATION
In Ethiopia and Tanzania (Zanzibar), 42.1% and 26.8% of respondents, respectively, reported having lost a job or
another source of income. In Ethiopia, more than 70% of those reported that this was due inter alia to their HIV status.
In Rwanda, 37.2% reported being refused an employment opportunity in the past 12 months because of their
HIV status.
HEALTH STIGMA AND DISCRIMINATION
In Rwanda, 65% of men and 81% of women were advised not to have children by a medical practitioner upon
HIV diagnosis. In Ethiopia, the same advice was given to 36.5% of men and 43.9% of women.
In Malawi, 46.6% of those who responded to questions about sexual and reproductive health rights reported
being advised not to have children after being diagnosed with HIV. A further 11.5% reported being coerced into
sterilisation, and 14.5% and 16.3% of those who responded reported being coerced into choice of methods of
child birth and infant feeding options, respectively.
In Rwanda, 17% of men and 12% of women reported that antiretroviral therapy accessibility was conditional on
use of contraception. In Ethiopia, this applied to 12.2% of men and 14.4% of women.
Source: The People Living with HIV Stigma Index: Country Analysis, 2016
http://www.stigmaindex.org/country-analysis
346
This section focuses on discrimination and stigma on the basis of HIV status. For a
discussion on how discrimination against particular populations can increase their
the Global Commission on HIV and the Law (UNDP, 2011), https://hivlawcommission.
vulnerability to HIV, see subsections below on each population.
347
Global Commission, HIV and the Law, 10.
348
UNAIDS, Reduction of HIV-Related Stigma.
349
UNAIDS, Women Living with HIV Speak out Against Violence (Geneva: UNAIDS, 2015);
and Global Commission on HIV and the Law, Report of the Africa Regional Dialogue of
org/wp-content/uploads/2017/06/AfricaRD_ReportEn.pdf.
350
World Economic Forum, TB: Why You Should Not Discriminate, accessed 15 June 2016,
http://www.justice.gov.za/vg/hiv/docs/tb/FactSheet_discrimination.pdf.
351
Global Fund to Fight AIDS, Tuberculosis and Malaria, Tuberculosis and Human Rights
Information Note (2013), 2.
p.
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Report on the Study of the African Commission on Human and Peoples’ Rights
6. Stigma and discrimination have a profound effect
8.
In many countries where these laws do exist,
on the ability of people living with HIV to enjoy
their rights to work, health, privacy, dignity and
freedom of movement. Negative social attitudes—
including gossip about people living with HIV—
remains high (see Figure 4). Forms of discrimination
and stigma are similar across the continent, and
they include marginalisation from families and
communities, verbal harassment, physical assault,
workplace discrimination and coercive sexual
and reproductive health-care services.352 A small
number of countries also continue to impose
travel restrictions on people living with HIV.353
Seychelles, for example, requires mandatory HIV
testing for residence and work permits.354
implementation and enforcement are often lacking.
Key decision-makers (including legal professionals,
health-care workers and employers) do not always
understand HIV or its relationship to the law, and
they are therefore not equipped to adequately
uphold HIV-related human rights. People living
with HIV also are not always aware of their rights,
and they often lack access to legal services. This
trifecta of stigma, insufficient information on rights
and a general lack of resources poses significant
barriers to accessing legal services.
Good practices
9. A significant number of African countries are
taking steps to combat discrimination against
people living with HIV. These include antidiscrimination laws that protect the rights
of people living with HIV, programmes to
strengthen legal support services for people
living with HIV, support for litigation to
challenge HIV- and TB-related discrimination,
and programmes to understand, monitor and
respond to stigma and discrimination.
7.
The
majority of countries in Africa have
constitutional or statutory protections against
discrimination on the basis of gender, disability and
marital status. An increasing number of countries
are starting to introduce protections on the basis of
HIV status.355 Unfortunately, these laws often are
narrow in scope and fail to address the layers of
discrimination people face due to HIV status.356
FIGURE 4: GOSSIP AGAINST PEOPLE LIVING WITH HIV
352
Exclusion from social gatherings and verbal insults, threats or harassment also were
355
For instance, see the Kenya HIV and AIDS Prevention and Control Act, 14 of 2006.
noted as significant experiences across countries. See “The People Living with HIV
356
Patrick Michael Eba, “HIV-Specific Legislation in Sub-Saharan Africa: A Comprehensive
Stigma Index: Country Analysis,” accessed 22 June 2017, http://www.stigmaindex.org/
country-analysis.
p.
68
353
UNAIDS, Welcome (Not) (Geneva: UNAIDS, 2015).
354
Ministry of Health Seychelles et al., Situation Analysis of Legal and Regulatory Aspects
of HIV and AIDS in Seychelles (Ministry of Health Seychelles, 2013).
Human Rights Analysis,” African Human Rights Law Journal 15, No. 2 (2015): 224.
357
“Global AIDS Response Progress Reports,” UNAIDS, accessed 15 June 2016, www.
unaids.org/en/dataanalysis/knowyourresponse/countryprogressreports/2012countries/.
358
For more information, see “The People Living with HIV Stigma Index: Country Analysis,”
http://www.stigmaindex.org/country-analysis.
Report on the Study of the African Commission on Human and Peoples’ Rights
10.
Around 35 African States have laws to protect
is accessible to applicants, and judges working
at the HIV and AIDS Tribunal are trained on
HIV-related issues. The Tribunal has addressed
hundreds of HIV cases to date, with most falling
into one of three categories:
›
workplace issues, including mandatory HIV
testing and discrimination on the basis of an
individual’s HIV status;
›
discrimination and abuse in health-care
settings and the denial of services based on
HIV status; and
› issues involving domestic violence, property and
inheritance.361
people living with HIV from discrimination,
many of which are HIV-specific.357 A number of
countries across Africa have conducted People
Living with HIV Stigma Index studies and
approximately 90% of countries report that their
national strategic plans (NSPs) include stigma and
discrimination reduction programmes. Many also
include training for health workers.358
11. Judicial recognition of the rights of people living
with HIV continues to be affirmed in case law
across the continent. The judiciary in various
countries have been ruling in favour of the rights
to equality and non-discrimination of people living
with HIV. This has been largely in the working
environment,359 with several also ruling in favour
of these rights in health-care settings.360
COMPULSORY AND OTHER FORMS OF
COERCIVE HIV TESTING
13. Ensuring access to HIV testing that is confidential
and only performed with free, prior and informed
consent is integral to ending the epidemic.
Globally, approximately 30% of all people living
with HIV did not know their HIV status in 2016.
Practices such as mandatory testing, breaches of
confidentiality and requirements for parental
12.
Countries also are looking for solutions outside
of the traditional court arena. For example,
Kenya has created an HIV and AIDS Tribunal to
specifically address issues arising under its HIV and
AIDS Prevention and Control Act. The Tribunal
359
For example, see Banda v. Lekha, [2005] MWIRC 44, where the court held that the
medical care to the plaintiff on the basis of her HIV status was a violation of the right to
applicant’s unlawful dismissal on the basis of her HIV status violated her constitutional
rights to equality and fair labour practices.
360
health guaranteed under Article 16 of the African Charter and national laws.
361
Patrick Michael Eba, “The HIV and AIDS Tribunal of Kenya: An Effective Mechanism for
For example, see Georgina Ahamefule v. Imperial Medical Centre & Dr. Alex K. Molokwu,
the Enforcement of HIV-Related Human Rights?” Health and Human Rights Journal 18,
Suit No. ID/1627/2000 (High Court of Lagos State) [2012], which found the denial of
no.1 (2016): 169–180.
p.
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Report on the Study of the African Commission on Human and Peoples’ Rights
consent discourage individuals from accessing HIV
testing services, and they may also place individuals
at risk of increased violence or discrimination.
Testing that is not confidential, free or informed
breaches the fundamental tenants of the right to
health and the right to privacy.362
provide for disclosure of a person’s HIV status
to third parties, including to health-care workers,
sexual partners or caregivers. Of 26 HIV laws
reviewed, 21 were found to have provisions
allowing for involuntarily notifying a partner of
a person’s HIV status. In 17 of those countries,
partner notification can be done at the discretion
of a health-care worker. As women are more
likely to be tested than men due to their access to
antenatal care, this has a disproportionate effect on
women, but even so, only four countries provide for
non-disclosure where there is a fear of violence.368
In particular, adolescents face significant barriers
to confidential consensual testing, as medical
procedures often requires a parent to consent and
know the results when the individual being tested
is under the age of 18 years. In contrast, the age of
consent for sex can be as low as 14 years.369
14. Mandatory and coerced testing occurs across the
continent, as do breaches of confidentiality.363 A
review of HIV-specific laws adopted in 26 subSaharan African countries shows that they allow
for broad exceptions to informed consent. Under
these laws, health-care providers can perform
HIV tests without informed consent for several
purposes: for treatment or care, in the context
of personal relationships and for alleged sexual
offences or when ordered by the court for judicial
proceedings.364 In some countries, mandatory HIV
testing policies exist for employment in sectors
such as law enforcement and the army. Mandatory
pre-marital testing has been reported in countries
such as Burundi, the Democratic Republic of the
Congo, Ghana, Kenya, Nigeria, Tanzania and
Uganda.365 In several countries where same-sex
sexual conduct is criminalised, cases of involuntary
testing of people accused of engaging in consensual
same–sex sexual conduct have been reported.366
laws provide for mandatory testing,
particularly for sexual offences, they
›
violate the rights to liberty, security of the
person and a fair trial;
› provide little guidance as to the purpose, process
and timeline for HIV testing;
›
are often applied to those alleged to have
committed, but who have not yet been convicted
of, a sexual offence; and
› are silent on the nature of the sexual offence to
which a test can be applied, thus opening the
gateway for mandatory HIV testing for offences
that carry little or no risk of HIV transmission.367
17. If it is not carefully circumscribed in law and policy,
involuntary partner notification has the potential
to infringe on the rights of a people living with
HIV, including the rights to confidentiality, health
and freedom from violence and discrimination.370
Failure to allow adolescents access to confidential
testing can infringe on their rights to privacy and
health (particularly sexual and reproductive health),
as well as the right to make decisions in accordance
with the developing maturity of the child.
15.
Where
18. Even where laws and policies allow only voluntary
confidential HIV testing with informed consent,
implementation can still be an issue. Results can
be disclosed to third parties and individuals can be
coerced into being tested. For example, pregnant
women in South Africa have reported being
threatened with refusal of health services if they
do not undergo an HIV test.371
19.
Testing initiatives also are changing in response
to the scale-up of testing and treatment.372 It is
becoming increasingly important to ensure that
testing is performed in a manner that respects the
16.
Laws, policies and practices in many countries
362
Fay et al., “Stigma, Health Care Access and HIV Knowledge,” para. 119.
367
Eba, “The HIV and AIDS Tribunal of Kenya.”
363
ARASA, HIV and Human Rights in Southern and East Africa (ARASA, 2014); and Caitlin
368
Eba, “The HIV and AIDS Tribunal of Kenya.”
E. Kennedy, “Provider-Initiated HIV Testing and Counseling in Low- and Middle-Income
369
In the Democratic Republic of Congo and Nigeria, the age of consent for HIV testing
364
365
Countries: A Systematic Review,” AIDS Behaviour 17, No. 5 (2013): 10.
is 18 years of age, but the age of consent is significantly lower. WHO, HIV and
For example, informed consent for an HIV test in Uganda can be dispensed with if
Adolescents: Guidance for HIV Testing and Counselling and Care for Adolescents Living
a patient “unreasonably withholds” it. In Burkina Faso, HIV testing is used to settle
with HIV (Geneva: WHO, 2013), Annex 15; Olalekan A. Uthman, “Geographical Variations
matrimonial disputes. See Patrick Michael Eba, “HIV-Specific Legislation in Sub-Saharan
and Contextual Effects on Age of Initiation of Sexual Intercourse among Women in
Africa: A Comprehensive Human Rights Analysis,” African Human Rights Law Journal
Nigeria: A Multilevel and Spatial Analysis,” International Journal of Health Geographics 7
15, No. 2 (2015): 224.
(2008): 27; and Miriam J. Temin et al., “Perceptions of Sexual Behavior and Knowledge
Open Society Institute, Mandatory Premarital HIV Testing (New York: Open Society
about Sexually Transmitted Diseases among Adolescents in Benin City, Nigeria,”
Institute, 2010), 1.
366
p.
70
International Perspectives on Sexual and Reproductive Health 25, No. 4 (1999): 18.
Human Rights Watch has documented involuntary HIV testing of men and transgender
370
Eba, “The HIV and AIDS Tribunal of Kenya.”
women accused of same-sex sexual relations in Egypt, Kenya and Uganda . Human
371
Johanna Kehler et al., Where are the Human Rights for Pregnant Women? Scale-Up of
Rights Watch, Dignity Debased: Forced Anal Examinations in Homosexuality
Provider-Initiated HIV Testing and Counselling of Pregnant Women: The South African
Prosecutions (Human Rights Watch, 2016).
Experience (Cape Town: AIDS Legal Network, 2016), 6.
Report on the Study of the African Commission on Human and Peoples’ Rights
rights of privacy and health, especially as new
forms of testing services expand. Traditionally,
individuals had to seek out HIV testing of their
own volition, the test and results were confidential,
and providers had to supply pre- and post-test
counselling to people seeking an HIV test.
on two former employees without informed consent
constituted a violation of the rights to privacy and to
be free from inhuman and degrading treatment.378
23. In S v. Mwanza Police, Mwanza District Hospital,
Ministries of Justice, Internal Affairs, Health,
Attorney-General and Ex parte: HB, JM (o.b.o 9
others), sex workers in Malawi were arrested and
forced to undergo HIV tests while in custody.379
Women who were HIV-positive were charged with
spreading a venereal disease, which is prohibited
under §192 of the Penal Code. Eleven women
challenged being subjected to a mandatory
HIV test in the High Court, which held that the
mandatory tests violated their constitutional rights
to privacy, equality, dignity and freedom from
cruel, inhuman and degrading treatment.
20.
In order to increase the rate of HIV testing,
some countries in Africa have implemented
additional types of testing, including PITC,373
community and home testing,374 routine testing,
couples testing and mobile testing. In contrast
to voluntary testing and counselling, these
approaches aim to integrate HIV testing into
a standard element of medical care that can
be opt-in or opt-out. They are often aimed at
particular populations, such as pregnant women
or sex workers.375 If improperly applied, these
new approaches to HIV testing can have serious
human rights implications, particularly in terms
of confidentiality and informed consent. Issues
of gender equality also are relevant because
women, particularly pregnant women, are
disproportionately subjected to HIV testing
without clear measures to ensure their safety and
protection from family members.376
CHALLENGES TO ACCESS TO TREATMENT,
INCLUDING RESTRICTIVE INTELLECTUAL
PROPERTY REGIMES
24. Providing
Maputo Protocol—notably the rights to liberty,
integrity and the security of person, dignity, health,
fair trial, and protection from cruel, inhuman and
degrading treatment—have been used in a number
of cases to overturn practices and policies around
HIV testing.377 In terms of disclosure, the SADC
Model Law and EAC HIV and AIDS Prevention
and Management Act tightly limit the situations in
which a person’s HIV status can be communicated
to a sexual partner at risk of HIV infection in
accordance with international guidance.
access to affordable, high-quality
medicines for HIV and opportunistic infections
such as TB is a critical element of fulfilling the
right to health. While there has been remarkable
progress made in increasing access to treatment in
recent years, only some 53% [39–65%] of people
living with HIV had access to treatment in 2016.
One in two people living with HIV were still
not accessing antiretroviral therapy. In East and
southern Africa, 67% [54–76%] of adult women
(aged 15 years and older) living with HIV and 51%
[41–58%] of adult men (aged 15 years and older)
living with HIV were accessing antiretroviral
therapy in 2016. In western and central Africa,
only 44% [32–56%] of adult women living with
HIV and 25% [17–32%] of adult men living with
HIV in the region were accessing antiretroviral
therapy in 2016.380
22. In Zambia, the High Court found that mandatory
25. Article 16 of the African Charter places an obligation
HIV testing conducted in the Zambian Air Force
upon Member States to “take the necessary
Good practices
21. Rights protected under the African Charter and
372
UNAIDS, Fast-Track: Ending the AIDS Epidemic by 2030 (Geneva: UNAIDS, 2014), 25.
373
PITC is defined by the WHO and UNAIDS as “HIV testing and counselling which is
376
recommended by health-care providers to persons attending health care facilities
and Uganda: Ethics on the Ground,” BMC International Health and Human Rights 13, no.
as a standard component of medical care. The major purpose of such testing and
counselling is to enable specific clinical decisions to be made and/or specific medical
6 (2016).
377
testing or breaches of confidentiality were found to be unconstitutional or a breach
HIV status.” See WHO et al., Planning, Implementing and Monitoring Home-Based, HIV
of human rights. See Kingaipe and Another v. Attorney General, 2009/HL/86 (27 May
Testing and Counselling (Geneva: WHO, 2012); and Kennedy et al., “Provider-Initiated
2010); Nanditume v. Minister of Defence, NLLP 2002 (2) 242 NLC; and C v. Minister of
Correctional Services [1997] JOL 407 (T).
Home-based HIV testing includes going door-to-door offering HIV testing and
378
Kingaipe and Another v. Attorney General.
counselling and visiting the homes of people at high risk of HIV (such as people whose
379
Anneke Meerkotter and Ian Southey-Swartz, “Malawi High Court Rules That Mandatory
partners are HIV-positive) to offer HIV testing and counselling services and self-testing.
HIV Testing is Unconstitutional,” 20 May 2015, http://www.southernafricalitigationcentre.
South Africa is considering its use in schools. See WHO et al., Planning, Implementing,
org/2015/05/20/malawi-high-court-rules-that-mandatory-hiv-testing-is-
and Monitoring Home-Based, HIV Testing and Counselling.
375
Namibia, South Africa and Zambia have all had cases where mandatory or forced
services to be offered that would not be possible without knowledge of the person’s
HIV Testing and Counseling,” 1571.
374
Carla Makhlouf Obermeyer et al., “HIV Testing and Care in Burkina Faso, Kenya, Malawi
Kennedy et al., “Provider-Initiated HIV Testing and Counseling,” 1571.
unconstitutional.
380
UNAIDS 2017 estimates.
p.
71
Report on the Study of the African Commission on Human and Peoples’ Rights
measures to protect the health of their people
and to ensure that they receive medical attention
when they are sick” without discrimination.381 This
includes access to affordable life-saving treatments
such as antiretroviral medicines. The right to
equitable access to affordable medicines in Africa
is undermined by the protection of IP laws and
the failure to reform or effectively use flexibilities
within the IP regime.382
WTO’s TRIPS Agreement requires all WTO
members to provide at least 20 years of patent
protection on pharmaceuticals, restricting the
ability of countries to use or import generic
versions of medications instead of more expensive
brand drugs. Anti-counterfeiting legislation also
can limit the ability of countries to manufacture
or import generic medicines.384
28.
Under
the TRIPS Agreement, governments
can make exceptions for public health reasons.
These exceptions include defining standards of
patentability and issuing compulsory licenses to
increase treatment access.385 However, few African
countries have made use of these exceptions;
either their laws predate the TRIPS Agreement or
lack provisions to allow for the use of generics,386
or the provisions have not been utilised.387 Many
African countries also lack adequate frameworks to
examine and register patents effectively.388 Where
countries do attempt to use IP laws effectively, they
can be met by strong opposition from governments
and pharmaceutical companies.389
26. The
prices of first-generation antiretroviral
medicines have been dramatically reduced over
the past 10 years, primarily due to increased
marketplace competition from generic drugs, but
access to treatment is becoming more difficult.383
Demand for second-generation antiretroviral
medicines is growing in the face of drug-resistant
HIV. Property, trade and counterfeiting laws also
render it difficult for countries to provide their
citizens with cheaper generic treatments.
27. Countries face a number of barriers when trying
to provide citizens with affordable drugs. The
381
Communication 279/03-296/05, Sudan Human Rights Organisation and Centre on
Housing Rights and Evictions (COHRE)/Sudan.
382
Global Commission, HIV and the Law.
383
Global Commission, HIV and the Law, 376.
384
UNDP, Discussion Paper: Anti-Counterfeit Laws and Public Health: What to Look Out
385
p.
72
Declaration on the TRIPS Agreement and Public Health (2004).
386
For example, Lesotho, Madagascar, Nigeria, Rwanda, Tanzania and Uganda. See Global
Commission on HIV and the Law, Regional Issues Brief: Intellectual Property Rights and
Access to Medicines (2011).
387
Angola, Benin, Burkina Faso, Burundi, Central African Republic, Chad, Comoros,
for, accessed 22 June 2017, http://www.undp.org/content/dam/undp/library/hivaids/
Djibouti, Ethiopia, the Gambia, Guinea, Guinea Bissau, Lesotho, Malawi, Mali, Mauritius,
English/UNDP%20Discussion%20Paper%20-%20%28revised%29.pdf.
Mozambique, Niger, Rwanda, Senegal, Sierra Leone, Sudan, Togo and Zambia. See
Trade-Related Aspects of Intellectual Property Rights, Annex 1C of the Marrakesh
Agreement Establishing the World Trade Organization, 15 April 1994. See also WTO,
Global Commission, Regional Issues Brief.
388
Global Commission, Regional Issues Brief.
Report on the Study of the African Commission on Human and Peoples’ Rights
to manufacture such products themselves.395 The
2003 Decision requires that the developing country
announce its intention to use this mechanism; it
should then further specify the expected quantity
of drugs to be supplied and issue a compulsory
license for the drugs. In spite of these restrictions
and challenges, the successful shipment of generic
antiretroviral medication from Canada to Rwanda
demonstrates the possibility of implementing
the TRIPS flexibility provided that governments
(both developed and developing) and international
organisations such as the WTO effectively support
such an implementation.396
Good practices
29. The right to health has been successfully used in
at least one case to defeat restrictions on the use
of generic medicines. In the 2012 case of Ochieng
and Others v. Attorney General in Kenya, the High
Court upheld an order declaring the Kenyan AntiCounterfeit Act, 2008, to be unconstitutional.390
The petitioners argued that the provisions of the
Anti-Counterfeit Act failed to exempt generic
medicines from the definition of counterfeiting
in that legislation. The Court interpreted the
right to health as placing an obligation upon
the State to ensure people have access to the
medicines they require to be healthy, noting that
the right to access medicine has been recognised
as an essential component of the right to health
in other jurisdictions, including South Africa. The
provisions of the Anti-Counterfeit Act were held
to restrict access to affordable medicines and thus
to violate the rights to life, human dignity and
health protected under the Kenyan Constitution.
The Court declared that “there can be no room
for ambiguity where the right to health and life of
the petitioners and many other Kenyans who are
affected by HIV/AIDS are at stake.”391
30. Regional initiatives to reform laws in order to make
greater use of the flexibilities in TRIPS and the
Doha Declaration include the establishment of the
Pharmaceutical Manufacturing Plan for Africa to
produce local generic medicines.392 Mozambique,
Zambia and Zimbabwe have all used their laws
to issue compulsory licenses for medicines, while
other countries have adopted the principle of
international exhaustion to permit parallel
importation of generic medicines from anywhere
in the world.393
32. In their September 2016 report, the UN Secretary-
General’s High-Level Panel on Access to Medicines
notes the barriers created by international trade
agreements and the pressure on governments to
refrain from using the TRIPS flexibilities. They
call for a new deal to close the gaps between health
innovation and access to medicines that would
include greater transparency in costs related to
medical developments and pricing.397
OVERLY BROAD CRIMINALISATION OF
HIV NON-DISCLOSURE, EXPOSURE AND
TRANSMISSION
33.
Overly
broad criminalisation of HIV nondisclosure, exposure and transmission raises both
public health and human rights concerns. There
is no evidence that criminalisation deters people
from engaging in behaviour that involves the risk
of HIV infection. Rather, HIV criminalisation has
a profoundly negative effect on HIV prevention
and the lives of people living with HIV: it increases
people’s vulnerability to scapegoating, blame and
marginalisation, and it undermines the relationship
between health-care workers and their patients
who are living with HIV. It also creates barriers to
accessing prevention, treatment and care services
and exposes already marginalised groups, such as
people who inject drugs and sex workers, to further
discrimination and persecution.398 More than 25
countries in sub-Saharan Africa have overly broad
and/or vague HIV-specific criminal statutes.399
31.
In 2008, Rwanda received 7 million doses of
antiretroviral medicine from Canada through the
use of flexibility under the WTO IP regime.394 In
doing so, the Rwanda became the first country
in the world to implement the WTO General
Council Decision of 2003, which permits someone
other than the patent holder to manufacture
a lower-cost version of a medicine for export to
developing countries that do not have the capacity
389
Global Commission, Regional Issues Brief, 81.
396
Weber and Mills, “A One-Time-Only Combination.”
390
PAO and Others v. Attorney General [2012] eKLR.
397
High-Level Panel on Access to Health Technologies, Report of the United Nations
391
PAO and Others v. Attorney General [2012] eKLR.
392
Pharmaceutical Manufacturing Plan for Africa (2007).
393
Global Commission, HIV and the Law.
394
Ashley Weber and Lisa Mills, “A One-Time-Only Combination: Emergency Medicine
Exports under Canada’s Access to Medicines Regime,” Health and Human Rights 12, no.1
395
Secretary General’s High Level Panel on Access to Medicines (2016).
398
UNAIDS, Ending overly broad criminalisation of HIV non-disclosure, exposure and
transmission: Critical scientific, medical and legal considerations (Geneva: UNAIDS,
2013). See also Global Commission, HIV and the Law, 8.
399
Edwin J. Bernard and Sally Cameron, Advancing HIV Justice 2: Building Momentum in
(2010): 109–122.
Global Advocacy against HIV Criminalisation (Brighton and Amsterdam: HIV Justice
Weber and Mills, “A One-Time-Only Combination.”
Network and Global Network of People Living with HIV, 2016), 13.
p.
73
Report on the Study of the African Commission on Human and Peoples’ Rights
34.
The fear, misconceptions and other concerns
relating to the growing HIV epidemic have
led to calls for legislators to adopt provisions to
criminalise individuals who are perceived to place
others at risk of HIV infection or to apply laws of
a general nature to this context.400 Several sets of
arguments often are highlighted to justify the calls
for criminalising HIV non-disclosure, exposure
and transmission.
› First, the criminal law is considered to be a
structural intervention that can contribute to
reducing new HIV infections by deterring those
who are considered to engage in behaviour that
places others at risk of HIV infection.
› Second, some proponents of the criminalisation
of HIV non-disclosure, exposure and transmission
argue that it is necessary to support and protect
the “victims.” This includes women and girls who
in many contexts are vulnerable to the risk of HIV
infection due to unequal power relations, which
particularly manifests in violence against women.
This argument is commonly used in sub-Saharan
Africa, where HIV prevalence among young
women and adolescent girls is very high.
› Third, criminalisation of HIV non-disclosure,
exposure and transmission is considered to
be an appropriate and valid State response to
punish the so-called perpetrator for his or her
“moral blameworthiness” and the “harm” that
is caused to others, particularly in cases where
HIV transmission occurs.
shown that HIV criminalisation does not protect
women; rather, it exposes them to greater risks
of prosecution because of the unequal social and
economic power between women and men.
36.
Existing laws and prosecutions for HIV non-
disclosure, exposure and transmission in subSaharan Africa often are vague and overly broad
in scope, which is contrary to key criminal law
principles of legality, foreseeability, intent, causality,
proportionality and proof. Laws and prosecutions
that fail to consider those principles are unfair and
may have far-reaching negative impacts on the
human rights of people living with HIV.
37.
For example, the law in Zimbabwe prohibits
anyone who realises there is a possibility that he or
she might be HIV-positive from engaging in any
activity that may possibly infect another person.
Interpreted broadly, anyone living with HIV in
Zimbabwe who has engaged in unprotected sexual
activity more than once, regardless of whether they
know their HIV status, is at risk of contravening
the prohibition against deliberate transmission
of HIV, whether or not HIV was transmitted.401
Similarly, exposing someone to HIV in Benin is
sufficient for prosecution: the law does not require
transmission of HIV to have taken place. In Togo,
the law prohibits people with HIV from engaging
in unprotected sex regardless of their partner’s HIV
status and/or whether consent has been given.
38. Overly broad criminalisation is likely to infringe
upon the rights to liberty, security, health, privacy,
access to justice and non-discrimination.402 HIV
criminalisation also involves a serious risk of
selective prosecution. Studies conducted in various
countries point out that specific vulnerable or
marginalised populations are disproportionately
impacted by these laws and prosecutions. This
includes migrants, sex workers, people of minority
ethnicity, prisoners and in some places, gay men
and other men who have sex with men.
35. Contrarily to arguments from the proponents of
HIV criminalisation, public health evidence and
human rights principles call for caution. Over the
years, human rights advocates and people living
with HIV have challenged the criminalisation of
HIV non-disclosure, exposure and transmission
and the arguments used to justify it. They have
shown that contrary to the arguments made by
the proponents of criminalisation, such a stance
does not support effective responses to HIV
because there is no evidence that criminalisation
deters people from engaging in behaviour that
involves the risk of HIV infection. They have also
400
and Legal Considerations (Geneva: UNAIDS, 2013).
404
“Mozambique: Assembly Amends Legislation Defending HIV-Positive Citizens,” All
401
See Zimbabwe Criminal Law (Codification and Reform) Act (2004), ch. 9:23, s. 78.
402
Edwin Cameron et al., “HIV is a Virus, Not a Crime: Criminal States and Criminal
405
Eba, “HIV-Specific Legislation in Sub-Saharan Africa,” 224.
Prosecutions,” Journal of the International AIDS Society 11 (2008): 7.
406
Bernard and Cameron, Advancing HIV Justice 2, 13.
Global Commission, HIV and the Law; and UNAIDS, Ending Overly Broad
407
AIDS Law Project v. Attorney General and Others [2015] eKLR.
Criminalisation of HIV Disclosure, Exposure and Transmission: Critical Science, Medical
408
“Regional HIV Bill Passed without Criminalization Clause,” IRIN, 27 April 2012, http://
403
74
overly broad laws criminalising HIV non-disclosure,
Global Network of People Living with HIV, The Global Criminalisation Scan Report 2010
(Amsterdam: GNP+, 2010).
p.
Good practices
39. UNAIDS and UNDP have called for the repeal of
Africa, 10 April 2014, http://allafrica.com/stories/201404101657.html.
Report on the Study of the African Commission on Human and Peoples’ Rights
exposure or transmission. Instead, they recommend
that criminal law only be applied to cases of
intentional transmission, where a person knows his
or her HIV-positive status, acts with the intention
to transmit HIV and actually transmits it.403 Law
reform on this issue is happening in a number
of countries. Countries such as the Democratic
Republic of the Congo, Guinea, Senegal and Togo
have reformed their legislation to restrict the use of
criminal law to cases of intentional transmission.
Mozambique has amended its HIV legislation to
remove the criminalisation of HIV transmission
(among other changes).404 In 2011, Sierra Leone
revised its Prevention and Control of HIV and
AIDS Act, 2007, to end the criminalisation of
mother-to-child transmission of HIV.405 Notably,
countries such as Comoros, Mauritius and South
Africa have rejected HIV criminalisation in
legislation relating to HIV.406
to the AIDS response. Civil society plays an
important role in delivering testing and treatment
services, educating communities on HIV and
prevention, building the capacities and resilience
of key populations, and advocating for law reform
and increased government services.
43.
Despite this, non-governmental organisations
are facing increasing restrictions to the
establishment, operation and implementation of
their mandates.409 Governments are restricting
the ability of non-governmental organisations
to register and operate; they also are placing
barriers on the ability of non-governmental
organisations to communicate internally and
externally and to assemble or raise funds. Such
barriers and limitations can directly infringe
on several human rights, including the rights to
freedom of association and assembly that are
guaranteed under the African Charter.410 They
also have a negative impact on the HIV response.
40. In Kenya, the High Court in Aids Law Project v.
Attorney General and Others found that Section
24 of the HIV and AIDS Prevention and Control
Act—which criminalised HIV non-disclosure
and exposure —was vague and overbroad and
thus violated the rights guaranteed under the
Constitution, including the right to privacy.407
44. Some of the types of restrictions facing civil society
include the following:
› Requirements to register with the government in
order to operate or receive funding. This includes
regular re-registration.411 Where registration
is denied, reasons are not always provided. In
some cases, the organisations that are denied
registration have no access to judicial review.
41.
The
EAC HIV and AIDS Prevention and
Management Act adopted on 23 April 2012, is an
enforceable law signed by all EAC countries. It seeks
to protect the rights of people living with HIV and
harmonise regional legislation and policy on the
prevention and treatment of HIV.408 Significantly, the
EAC HIV and AIDS Prevention and Management
Act does not criminalise HIV non-disclosure,
exposure or transmission, unlike some of the laws
in the individual Member States (namely Burundi,
Kenya and Tanzania). Rather, the EAC Act focuses
on the need for a human rights-based approach, the
rejection of coercive approaches and the importance
of addressing the root causes of vulnerability to HIV.
›
Limitations on the activities of civil society
organizations, including forcing them to
conform to government development plans or
restricting them from working on human rights
and democracy issues.412
›
Direct actions that hamper the ability of
organisations to communicate and operate. This
includes the harassment of non-governmental
organisations, raids on their offices, the denial of
visas for international allies and restrictions on
(and monitoring of) means of communications.
CIVIL SOCIETY SPACE AND HIV
› Restrictions on the ability to assemble or protest
by requiring permits and permission for public
assemblies.413 These restrictions often involve
42.
A vibrant, well-funded, resourced and engaged
civil society and community movement is critical
www.irinnews.org/report/95371/east-africa-regional-hiv-bill-passed-withoutcriminalization-clause; EAC Secretariat HIV and AIDS Unit and UNDP Regional Service
Centre for Africa Addis Ababa (Ethiopia), Summary Report: A Comprehensive Analysis
Guide for Civil Society (Geneva: OHCHR, 2014).
411
of the HIV and AIDS Legislation, Bills, Policies and Strategies in the East African
In Ethiopia, charities must re-register every three years. See Ethiopia, Proclamation No.
621/2009 of 2009, Charities and Societies Proclamation, Art. 76.
Community (EAC, 2014), 5.
412
In South Sudan for example, NGOs are limited to conducting humanitarian work.
409
“State of Civil Society Report 2015,” Civicus, http://www.civicus.org/index.php/socs2015.
413
For example, the Public Order Act Kenya (2003), Part III, requires notification of any
410
OHCHR, Civil Society Space and the United Nations Human Rights System: A Practical
public event or meeting.
p.
75
Report on the Study of the African Commission on Human and Peoples’ Rights
broad police powers to prevent or shut down
demonstrations.
›
Limits on fundraising, including prohibiting
specific types of funding, requiring government
approval or compliance with onerous
procedures for specific types of funding, and
routing funding through the government.
45.
46.
Organisations working on HIV or with key
populations appear to be finding their work
especially difficult because authorities restrict the
activities of organisations they see as immoral or
as supporting illegal activities. They experience
challenges with registration, and the reasons for
refusal, delay or denial of registration are not
always clear. For example, the NGO Coordination
Board in Kenya failed to register the group
Transgender Education and Advocacy (TEA).
The Board had delayed the registration, claiming
that as one of the members of TEA was currently
applying for a legal change of name and gender,
the registration of the organization should wait
until the legal change was made. The organization
took the Board to court, where the Board was then
ordered to register TEA.414
In Zimbabwe, the offices of Gay and Lesbians
of Zimbabwe’s (GALZ) have been raided several
times by police.415 During these raids, police
often confiscate GALZ’s computers and other
publications, including personal information.
This limits the ability of GALZ to communicate
effectively with partners if they are concerned
that such communication places their partners at
risk of government harassment. Similarly, HIV
meetings organised for key populations in Nigeria
and Tanzania are often raided by police, with
those attending detained or harassed.416
services. Such restrictions also drive marginalised
populations underground, inhibiting their ability
to access testing and treatment, and increasing
their vulnerability to violence, abuse, infection
and, ultimately, death.
Good practices
48.
A number of courts have upheld the right to
freedom of association and overturned government
decisions that limit the ability of organizations to
function. In 2015, the High Court of Kenya held
that a refusal to register an LGBTI organisation
was unconstitutional.417 The organisation had
been refused registration on the basis that the
phrase “gay and lesbian” appeared in the name of
the organisation, and the penal code criminalises
same-sex sexual conduct. The High Court held
that the decision violated the constitutional right
to freedom of association and that conceptions
of morality cannot serve as a justification to limit
fundamental rights.
49. The Court of Appeal in Botswana came to a similar
decision in 2016 after the Government had refused
to register an LGBTI organisation on the basis that
its objectives were unlawful and that homosexual
persons were not “persons,” so they were not
protected by fundamental rights. The Court held
that refusal to register the organisation was a
breach of the right to freedom of association.418
50.
In 2014, Côte d’Ivoire passed the Law on the
Promotion and Protection of Human Rights
Defenders. It is the first law in an African State
that specifically ensures the protection of human
rights defenders. The law came into force in
February 2017.419
51.
The African Commission established the Study
Group on Freedom of Association in 2009 to
undertake a study on freedom of association and
ensure that States take the study into account in
their policies and laws.420 The study group also
issued guidelines on freedom of association and
assembly in Africa in 2017.421 In May 2017, the
47. These restrictions have been shown to impact the
HIV response. In particular, they limit the ability
of organisations to raise funds, apply for grants,
advocate for a stronger legal environment for the
HIV response and provide critical HIV-related
414
415
R v. Non-Governmental Organisations Co-Ordination Board and Another, Ex-Parte
Activities,” ABC News, 16 September 2017, http://abcnews.go.com/amp/International/
Transgender Education and Advocacy and Others, JR Miscellaneous Application No.
wireStory/police-zanzibar-arrest-20-homosexual-activities-49892622; and “Mass Arrest
308A of 2013 (23 July 2014).
of 40 Gay Men in Nigeria May Harm HIV Fight: Activist,” Reuters, 31 July 2017, https://
“Zimbabwe: End Attacks on LGBT People,” Human Rights Watch, 27 August 2012,
www.reuters.com/article/us-nigeria-gay/mass-arrest-of-40-gay-men-in-nigeria-may-
https://www.hrw.org/news/2012/08/27/zimbabwe-end-attacks-lgbt-people.
416
See Andrew Green, “In an Apparent Crackdown, Tanzania Government Raids NGO
harm-hiv-fight-activist-idUSKBN1AG21W.
417
Meeting on Reproductive Rights,” devex, 6 January 2017, https://www.devex.com/news/
in-an-apparent-crackdown-tanzania-government-raids-ngo-meeting-on-reproductive-
p.
76
rights-89394; The Associated Press, “Police in Zanzibar Arrest 20 Over Homosexual
Eric Gitari v. Non-Governmental Organisations Co-Ordination Board & 4 Others [2015]
eKLR.
418
Attorney General of Botswana v. Thuto Rammoge and 19 Others, 2016, Civil Appeal No.
CACGB-128-14.
Report on the Study of the African Commission on Human and Peoples’ Rights
African Commission adopted Resolution 376,
which expresses concern about
new challenges, in particular the increased
threats against defenders working on issues
including the right to health, the fight against
HIV/AIDS, reproductive health, sexual
orientation and gender, extractive industries,
promotion of democracy and peace, and
women rights defenders irrespective of their
area of activity.422
AIDS, reproductive health, sexual orientation
and gender identity, promotion of peace and
democracy, fight against terrorism and respect
for human rights.423
CONFLICT AND HIV
53. Armed conflict and post-conflict periods raise
distinct issues related to HIV prevention and
treatment. During armed conflict, HIV prevention
and treatment services tend to be significantly
reduced because of the instability wrought
by war. For example, areas of conflict in Côte
d’Ivoire reported at least a 75% reduction in
health-care staff.424 Without adequate health-care
staff, provision of HIV prevention and treatment
services is greatly reduced. Armed conflict can also
increase the need for flexible HIV prevention and
treatment services.
52.
Resolution 376 calls on African States to take
measures to address the shrinking civil society
space, including efforts to
adopt specific legislative measures to recognise
the status of human rights defenders, and protect
their rights and the rights of their colleagues
and family members, including women human
rights defenders and those working on issues
such as extractive industries, health and HIV/
419
54. People displaced by conflict are at increased risk
of not accessing prevention and treatment services.
“Côte d’Ivoire: La loi sur les defenseurs des droits de l’Homme enfin en vigueur,”
Organisation Mondiale Contre la Torture, 5 May 2017, http://www.omct.org/fr/human-
2017, http://www.achpr.org/mechanisms/study-group-freedom-of-association/.
421
rights-defenders/urgent-interventions/cote-divoire/2017/05/d24327/; and “Décret n°
2017-121 du 22 février portant modalité d’application de la loi n° 2014-388 du 20 juin
2017.
422
2014 portant promotion et protection des défenseurs des droits de l’homme,” Ivorian
Coalition of Human Rights Defenders, 5 May 2017, http://ci-ddh.org/2017/05/decret-
420
“Study Group on Freedom of Association,” African Commission, accessed 27 March
“Study Group on Freedom of Association,” African Commission, accessed 27 March
2017, http://www.achpr.org/mechanisms/study-group-freedom-of-association/.
423
n2017-121-du-22-fevrier-portant-modalite-dapplication-de-la-loi-n2014-388-du-20-juin2014-portant-promotion-et-protection-des-defenseurs-des-droits-de-lhomme/.
African Commission, Guidelines on Freedom of Association and Assembly in Africa,
“Study Group on Freedom of Association,” African Commission, accessed 27 March
2017, http://www.achpr.org/mechanisms/study-group-freedom-of-association/.
424
Brent W. Hanson et al., “Refocusing and Prioritizing HIV Programmes in Conflict and
Post-Conflict Settings: Funding Recommendations,” AIDS 22, no. 2 (2008): 95.
p.
77
Report on the Study of the African Commission on Human and Peoples’ Rights
Knowing where to access such services and having
a regular supply of antiretroviral medicines can be
difficult in such circumstances. This can result in
people living with HIV developing drug-resistant
HIV. Refugees, migrants and other groups that
are vulnerable for socio-economic reasons are at
heightened risk of sexual violence.
57. The flatlining of resource availability at the
country level and the decrease of international
HIV funding in selected countries affects many
or all areas of HIV efforts, including human
rights. In 2017, very few countries reported
disaggregated data on stand-alone in-country
expenditures on human rights. Among those
that did, only US$ 1.46 million was spent on
specific stand-alone human rights activities in 10
low-income and middle-income countries.429 As
funding for HIV decreases, human rights-related
HIV funding, which is already underfunded, is
expected to decrease further. A 2015 UNAIDS
study found that 59% of civil society organizations
implementing human rights programmes
reported decreases in funding.430
Good practices
55.
A few countries in Africa have attempted to
address HIV during and after armed conflict. In
response to the high levels of sexual violence in
the eastern regions of the Democratic Republic
of the Congo, mobile courts were established
specifically to try perpetrators of sexual violence.
From 2009 to 2012, a mobile court in the province
of South Kivu heard 382 cases; this resulted in
204 convictions for rape, 82 convictions for other
offenses and 67 acquittals.425 Such courts permit
victims to attain some level of redress and hold
perpetrators accountable for sexual violence.
Other countries—including Côte d’Ivoire,
Liberia, Niger, Sierra Leone and Sudan—provide
dedicated staff who are empowered to address
HIV during the disarmament, demobilisation
and reintegration process. This approach has
been successful in addressing HIV during the
transition to peace.426
58. The outlook for funding for organisations working
on human rights programming in Africa is mixed.
In middle-income African countries, civil society
organizations report significant decreases in
funding for HIV and human rights work. Civil
society organizations in western and central Africa,
however, report that they expect an increase in
funding for human rights and HIV.431
59.
The stagnation or decrease in HIV funding
is impacting civil society organizations, the
human rights response and the ability of
African governments to address HIV effectively.
The decrease in HIV funding has already led
organisations to close in southern Africa, leaving
a gap in services.432 Other non-governmental
organizations have attempted to find alternative
solutions, including integrating HIV into broader
health and other human rights issues and shifting
geographical and/or methodological focus.433
There are some benefits to such an approach:
› donors will be able to integrate HIV with other
human rights issues, including sexual and
reproductive health and rights;
›
there will be better integration between
grassroots mobilisation and government-funded
primary care services; and
› lessons from the HIV movement can be learned
and used for other issues.
THE FUNDING CRISIS AND ITS IMPACT ON
HUMAN RIGHTS AND CIVIL SOCIETY
56.
If Africa is to have any chance of reducing or
ending the AIDS epidemic, greater resources
are needed now. Many low-income and middleincome countries remain heavily dependent
upon international donors to finance their HIV
response. As per the latest data available in 2017,
33 low-income and middle-income countries
had 75% or more of their HIV financing needs
provided by external sources.427 Twenty-two of
those countries were in sub-Saharan Africa.428
Despite this, civil society organizations surveyed in
Africa and around the world feel that international
HIV funding from governments and international
donors is decreasing.
425
Open Society Foundations, Justice in DRC: Mobile Courts Combat Rape and Impunity
in Eastern Congo (Open Society Foundations, 2013).
430
GARPR and GAM reports.
426
Open Society Foundations, Justice in DRC.
431
UNAIDS, Sustaining the Human Rights Response to HIV (Geneva: UNAIDS, 2015), 19.
427
According to UNAIDS, the latest available data of the external sources of funding from
432
For example, the Zambian AIDS Law Research and Advocacy Network (ZARAN), an
428
the recent four years are available for 88 low-income and middle-income countries.
organisation promoting the rights of people living with and affected by HIV, closed in
UNAIDS, How AIDS Changed Everything: Fact Sheet (Geneva: UNAIDS, 2016), http://
2012 due to a lack of funding. ZARAN was one of the few organisations in Zambia that
www.unaids.org/en/resources/fact-sheet.
429
p.
78
worked to address the legal environment for people living with HIV.
Global AIDS Response Reporting Mechanism (GARPR) and Global AIDS Monitoring
433
UNAIDS, Sustaining the Human Rights Response, 38.
(GAM) country reports.
434
UNAIDS 2017 estimates.
Report on the Study of the African Commission on Human and Peoples’ Rights
60. The risks to such integration are that HIV groups
65.
Laws, policies and practices that perpetuate
lose their sole focus on HIV, thereby limiting
their impact on the HIV epidemic. Similarly,
organisations take on issues and advocacy work
for which they lack the necessary expertise, and
the integration of HIV organisations into broader
existing movements of marginalised groups may
be difficult and result in a shift in priorities.
gender inequality, harmful gender norms and
gender-based violence undermine women and
girls, keeping them in poverty and limiting their
autonomy and decision-making power, including
their ability to access health-care services. All
these factors contribute to making women more
vulnerable to HIV. Key issues relating to gender
inequality and HIV are outlined below.
WOMEN AND GIRLS
Gender inequality in family and personal law
61.
In 2016, young women accounted for 67% of
66.
In personal and family law, gender inequality
new HIV infections among young people aged
15–24 years in sub-Saharan African, and women
accounted for 56% of new HIV infections among
adults.434 Overall, three in four new HIV infections
among those aged 15 to 19 years in sub-Saharan
Africa occurred in girls.435
limits women’s rights to autonomy, equality in
relationships, security of property ownership
and financial control. Inequitable customary and
religious laws often deny women the right to make
decisions relating to their lives, the lives of their
children, their property and their health care. They
also create barriers to accessing marital property.440
Inequity in family and personal laws can mean
women are denied the right to inherit property from
their parents, their husband or their clan.
62.
The HIV Committee has noted the disturbing
feminisation of HIV in Africa, reporting that
biological factors that make women and girls
more vulnerable to HIV infection are exacerbated
by socio-cultural and structural factors, such
as poverty, harmful cultural practices, limited
decision-making power, lack of control over
financial resources, restricted mobility, violence,
limited educational opportunities, and lack of
quality sexual and reproductive health services.436
67. Gender inequality within a relationship increases
a woman’s risk of acquiring HIV because
dependency on partners and relatives leaves them
with few options for negotiating safe sex, ending a
relationship or accessing health care (such as HIV
testing and treatment).441
Good practices
63. Across the continent, women continue to be more
68.
A number of African courts have upheld the
disadvantaged than men in their daily lives.437
They lack access to the same levels of education,
economic power and political leadership as men,
and they report discrimination in the workplace, in
courts and in their communities.438
equality of women with respect to family
and personal law. In 2013, the Court of
Appeal of Botswana held that customary
laws that discriminated against women solely
on the basis of their gender are unlawful and
unconstitutional.442 The case challenged a
Ngwaketse customary law that arguably denied
women the ability to inherit the family home. In
finding that women cannot be wholly exempted
from inheriting the family home, the Court of
Appeal noted that although the Constitution
provides an exception for customary law, the
exemption only applies if it is in the public
interest and does not prejudice the rights and
freedoms of others.443 In Ghana, the High
64. Women are not free to make decisions on issues
that affect their lives, including in areas such as
sexual and reproductive health decisions and
access to medical care. Women living with HIV
often experience high levels of human rights
violations in health-care settings, including
coercion, lack of privacy, disrespect, humiliation
and denial of services.439
435
UNAIDS, When Women Lead Change Happens: Women Advancing the End of AIDS
(Geneva: UNAIDS, 2017), 2.
436
437
“Press Release on World AIDS Day,” African Commission, 1 December 2013, http://www.
440
In Lesotho, for example, Article 18(4)(c) of the Constitution arguably allows
achpr.org/press/2015/12/d281/.
discrimination against women in terms of customary law. See Constitution of Lesotho
UNDP, Africa Human Development Report 2016: Accelerating Gender Equality and
(1993), Art. 18(4)(c); and Masupha v. Senior Resident Magistrate of the Subordinate
Women’s Empowerment in Africa (New York: UNDP, 2016).
Court of Berea (Mr. Kolobe) and Others (CIV) 29/2013 (2014).
438
UNDP, Africa Human Development Report.
441
Global Commission, HIV and the Law.
439
Johanna Kehler, “They Do Not Have That Right: Women’s Experiences of Accessing
442
Ramantele v. Mmusi and Others, CACGB-104-12 (2013).
Healthcare,”(2015), 9.
443
Ramantele v. Mmusi and Others.
p.
79
Report on the Study of the African Commission on Human and Peoples’ Rights
Court in Akrofi v. Akrofi struck down the rule
of male primogeniture, noting that male-only
inheritance has “out-lived its usefulness and is at
present not in conformity with public policy.”444
particular risk of violence. Lesbian, bisexual
and transgender women are particular targets
of sexual violence. Perpetrators may be friends,
family, acquaintances or occasionally complete
strangers who are keen to establish the victim’s
“proper femininity.”449
69.
Alternative dispute mechanisms have also been
used to ensure that women have equal access to
inheritance. In Kenya, community leaders—with
the support of the HIV law and human rights
organisation, KELIN—are using traditional
dispute resolution mechanisms to support women
dispossessed of family property when their
husbands die. KELIN has supported elders to
work with families to resolve disputes and protect
the property rights of widows to return to their
original homes and villages or to resettle elsewhere.
This model takes the view that customary law
changes with society, and that it can change to
encompass gender equality. Thus far, the model
has been successful in ensuring that widows are not
dispossessed of their property.445
73.
While general criminal laws should theoretically
protect women from violence, they are often
insufficient in practice. Laws specifically targeting
gender-based violence are recommended, but many
countries do not have laws protecting women from
specific forms of gender-based violence. In 2016,
some 14 countries in sub-Saharan Africa reported
having legislation that specifically criminalised
marital rape, while 29 reported having laws on
domestic violence.450 Where protective laws do
exist, they often are inadequately implemented
and enforced, again because of factors such as
gender stereotypes and inequalities, or barriers
that exist within the legislation itself. For example,
Zimbabwe criminalises marital rape, but the law
requires the consent of the Attorney General for
prosecution, which results in few prosecutions.451
Violence against women
70.
Violence against women is closely correlated
with HIV infection: in some settings, women
who experience intimate partner violence are
50% more likely to acquire HIV than those who
do not experience such violence.446 Violence—
or the fear of violence—impedes the ability of
women to insist on safer sex; it also affects their
ability to use and benefit from HIV prevention,
testing and treatment interventions and sexual and
reproductive health services.447
Good practices
74.
The African Charter and the Maputo Protocol
clearly prohibit violence against women. Resolution
275 explicitly recognises violence based on sexual
orientation and gender identity as a violation of
the right to be free from discrimination and the
right to equal protection under the law.
75. A number of countries have enacted legislation
71.
Africa has the highest reported rates of both
addressing gender-based violence. Namibia has
passed the Combating of Rape Act, No. 8 of
2000, which states marriage cannot constitute
a defence to rape.452 Zimbabwe’s Domestic
Violence Act of 2006 calls for the creation of an
Anti-Domestic Violence Council and counsellors
to support the implementation of this Act.453
Countries such as Mozambique and Tanzania
also are starting to include programmes to
physical and sexual violence against women of any
region. In more than half of African countries,
over 40% of women experience some form of
physical violence; that number increases to 64% in
some countries.448
72. Women from marginalised populations, such as
sex workers and women with disabilities, are at
Women, 2013); Global Commission on HIV and the Law; Health Economics and HIV/
444
Akrofi v. Akrofi [1965] GLR 13, 16.
AIDS Research Division (HEARD), National Response to Disability and HIV in Eastern
445
Catherine M. Mumma, Accessing Justice and Protecting the Rights of the Vulnerable
and Southern Africa (HEARD, 2010); and Human Rights Watch, “We’ll Show You You’re
through Cultural Structures: A Tool on Working with Elders in Communities (KELIN, 2010).
a Woman”: Violence and Discrimination against Black Lesbians and Transgender Men in
446
WHO et al., Global and Regional Estimates.
447
Bedru Hussen Mohammed et al., “Intimate Partner Violence and Utilization of Maternal
450
UNAIDS 2017 National Commitments and Policies Instrument.
Health-Care Services in Addis Ababa, Ethiopia,” BMC Health Services Research 17,
451
Global Commission, HIV and the Law.
no. 1 (2017): 178; and Lauren Maxwell et al., “Estimating the Effect of Intimate Partner
452
Namibia Combating of Rape Act, No. 8 of 2000, Art. 2(3).
Violence on Women’s Use of Contraception: A Systematic Review and Meta-Analysis,”
453
Arts. 15 and 16 of Zimbabwe Domestic Violence Act 14 of 2006.
PLoS One 10, no. 2 (2015): e0118234.
454
Republic of Mozambique Council of Ministers, National Strategic HIV and AIDS
448
p.
80
449
South Africa (Human Rights Watch, 2011).
United Nations Department of Economic and Social Affairs, The World’s Women:
Response Plan, 2010–2014, http://www.nationalplanningcycles.org/sites/default/files/
Trends and Statistics (2015), 143.
country_docs/Mozambique/national_strategic_hiv_and_aids_response_plan_2010-
UN Women, Ending Violence Against Women and Girls: Programming Essentials (UN
2014.pdf; and ARASA, HIV and Human Rights, 125.
Report on the Study of the African Commission on Human and Peoples’ Rights
address gender-based violence in their NSPs on
HIV and AIDS.454
of three women living with HIV without their
informed consent was a violation of their rights
to physical integrity and to found a family, as was
their right under the Constitution.459 However, it
dismissed their claim of discrimination on the
basis of HIV status. The Namibian Government
has thus far failed to address the systemic nature
of the problem, only addressing the case of
the three women who had raised the issue in
court.460 Similar cases challenging the coerced
sterilisation of women living with HIV have
been filed in Kenya.461
Sexual and reproductive health and rights of
women living with HIV
76.
Women
with HIV consistently experience
discrimination and coercive practices in relation
to their sexual and reproductive health rights.
Discriminatory treatment by health-service
providers can deprive them of their right to a
family, breach their rights to privacy, deny them
potentially life-saving treatments or procedures
and, in some cases, amount to torture.
80.
A number
of countries, including Sierra
Leone, are moving towards the legalisation
of abortion.462 The importance of accessing
abortion to the well-being of women has also
resulted in the African Commission launching a
campaign to decriminalise abortion in Africa.463
The campaign seeks to bring attention to the
impact of unsafe abortions on the lives and
health of women in Africa, and to decriminalise
abortion in Africa to ensure country compliance
with African regional treaty obligations.464
77.
Discriminatory and coercive practices include
being advised not to have children, being forced to
use contraception in order to obtain antiretroviral
therapy and being coerced into terminating
pregnancy.455 Women with HIV from Kenya,
Malawi, Namibia, South Africa, Swaziland,
Tanzania, Uganda and Zambia have reported
being subjected to forced or coerced sterilisation.456
As outlined above, pregnant women are often
subject to mandatory testing, or their HIV status
may be revealed to third parties (such as family and
abusive partners) without their consent.
Har mful cultural practices and beliefs
81. Harmful cultural practices, such as child marriage
78.
Very few countries provide abortion services on
and FGM, can significantly increase vulnerability
to HIV among women and girls. Both FGM and
child marriage are explicitly prohibited under
African human rights instruments. The Maputo
Protocol explicitly requires countries to “prohibit,
through legislative measures backed by sanctions,
all forms of female genital mutilation,” stating that
the minimum age of marriage for women shall be
18 years. FGM can place girls at risk of HIV as it
exposes them to blood and possibly to unsterilised
equipment. There also is a higher prevalence of
herpes among women who have undergone FGM,
which again increases vulnerability to HIV.465
Communities in almost 30 countries in Africa
continue to practice FGM, putting an estimated
three million girls at risk of FGM annually.466
demand, and when they do, access is still limited.457
Women living with HIV may need abortion
services for a variety of reasons. HIV-positive
women experience higher rates of sexual assault,
or they may be concerned about the health effects
of seeing a pregnancy to term. Use of unsafe
abortion services also may be more dangerous
for women living with HIV, as they are more
susceptible to infection and complications.458
Good practices
79. Women have successfully challenged violations
of their rights in a number of national courts.
The Supreme Court of Namibia found in
Namibia v. LM and Others that the sterilisation
455
UNAIDS, Getting to Zero: HIV in Eastern and Southern Africa (Geneva: UNAIDS, 2013).
456
UNAIDS, Getting to Zero; AIDS Legal Network et al., Ourselves. Their Bodies? (2012);
461
Henry Kibira, “Kenya: Women Seek Justice Over Sterilisation,” The Star, 23 August 2012.
and Global Commission, HIV and the Law.
462
Cassie Werber, “Sierra Leone’s President is Delaying a Crucial Decision that Would Save
457
Guttmacher Institute, Abortion in Africa: Fact Sheet (New York: Guttmacher, May
2016); and Wendell Roelf, “SA Teenagers Still Battle for Access to Abortion,” Mail
Thousands of Women’s Lives,” Quartz, 1 February 2016.
463
& Guardian, 13 June 2006, https://mg.co.za/article/2006-06-13-sa-teenagers-still-
Women and Girls in Africa are Counting on Us to Save their Lives!” African Commission,
battle-for-access-to-abortion.
458
WHO et al., Consolidated Guideline on Sexual and Reproductive Health and Rights of
18 January 2016, http://www.achpr.org/press/2016/01/d287/.
464
Women Living with HIV (Geneva: WHO, 2017), 71.
459
Namibia v. LM & Others (SA 49/2012) [2014] NASC 19.
460
��Submission to the Committee on the Elimination of all Forms of Discrimination against
Women Regarding the Government of Namibia,” SALC, 11 December 2014, https://
“Press Release: Launch of the Campaign for The Decriminalization of Abortion in Africa:
“Press Release: Launch of the Campaign for The Decriminalization of Abortion in Africa,”
African Commission, 18 January 2016, http://www.achpr.org/press/2016/01/d287/.
465
OHCHR et al., “Eliminating Female Genital Mutilation: An Interagency Statement”
(Geneva: WHO, 2008).
466
WHO, Female Genital Mutilation (2016); and “Female Genital Mutilation (FGM)
southernafricalitigationcentre.org/2014/12/11/salc-submission-to-cedaw-regarding-
Frequently Asked Questions,” UNFPA, January 2017, http://www.unfpa.org/resources/
namibia/.
female-genital-mutilation-fgm-frequently-asked-questions.
p.
81
Report on the Study of the African Commission on Human and Peoples’ Rights
82.
Child marriage has long-term, life-threatening
85.
In Zimbabwe, the Constitutional Court recently
sexual and reproductive health consequences for
children (especially girls) that lead to maternal
morbidity and mortality when pregnancy occurs
at a young age.467 Girls who are married young
have less access to contraceptive and other family
planning services, and they thus are unable to
control the timing of their pregnancies.468 They
likely also are less able to negotiate safe sex. A study
in Kenya and Zambia found that married girls
aged 15–19 years were 75% more likely to have
HIV than sexually active unmarried girls.469 SubSaharan Africa has the highest prevalence of child
marriage in the world: in at least five countries in
the SADC, almost 40% of children are married
before they are 18 years of age.470
delivered a landmark ruling in the case of Mudzuru
and Another v. The Minister of Justice outlawing
child marriage and declaring provisions in civil
and customary laws allowing child marriage to
be unconstitutional. The Constitution specifically
puts the age of marriage at 18 years.478
86. Recently, the African Commission—in conjunction
with ACERWC—adopted a joint general
comment addressing child marriage as a gross
human rights violation in Africa.479 As mentioned
above, a number of countries also have outlawed
child marriage. The SADC passed a Model Law
on Eradicating Child Marriage and Protecting
Children Already in Marriage that addresses the
link between HIV and child marriage.480
83.
Child marriage and FGM are still legal in a
number of countries, and even where they are
illegal, many women report being unwilling to
oppose them for religious or cultural reasons or
because they feel forced to abide by them for fear
of recrimination.471 While a number of countries
have begun to outlaw both child marriage and
FGM,472 exceptions and loopholes continue to
exist in relation to marriage.473 But changing laws
does not necessarily result in changes to customary
and religious practices, particularly where custom
and tradition tend to prevail over law.474
CHILDREN AND ADOLESCENTS
87. Children and adolescents are impacted in various
ways by the HIV epidemic. In 2016, 1.6% [1.4–
1.8%] of young people aged 15 to 24 years in subSaharan Africa were living with HIV, with up to
10.7% [9.8–11.4%] of young people in Swaziland
affected. An estimated 1.9 million [1.5–2.3 million]
children under the age of 15 years were living with
HIV, and only 42% [29–53%] of them had access
to antiretroviral therapy in 2016.481 Children and
adolescents face various human rights violations in
the context of HIV, creating barriers to their ability
to protect themselves from HIV transmission or to
access the necessary treatment, care and support
once they have been infected with or affected by
HIV and AIDS.482
Good practices
84. At both international and regional levels, there
has been a strong push towards ending harmful
cultural practices. In 2011, the African Union
recognised that FGM “is a gross violation of
the fundamental human rights of women and
girls, with serious repercussions on the lives of
millions of people worldwide, especially women
and girls in Africa.”475 In Africa, over 20 countries
have enacted laws prohibiting FGM.476 Since
criminalising FGM in 2011, Kenya has seen 71
cases of FGM taken to court, although as of
2014, only 16 had been convicted.477
88.
In 2016, approximately 13.7 million [11.4–16
million] children in sub-Saharan Africa had lost
one or both parents to AIDS-related illnesses.483
Orphaned children risk being in youth-headed
households, in institutions or on the streets,
where they are increasingly vulnerable to abuse,
exploitation and to HIV. Other children, while
Guardian, 25 November 2015; Malawi, Marriage, Divorce and Family Relations Act, 2015,
467
WHO, Early Marriages, Adolescent and Young Pregnancies (Geneva: WHO, 2012),
3; Sanyukta Mathur et al., Too Young to Wed: The Lives, Rights and Health of Young
Sec. 14; and Constitution of the Republic of Malawi (1994) s22(7).
473
Married Girls (International Center for Research on Women, 2003); and United Nations
468
and children younger than 18 years may marry with parental consent.
Children’s Fund (UNICEF), State of the World’s Children 2009: Maternal and Newborn
474
Global Commission, HIV and the Law, 68.
Health (New York: UNICEF, 2008), 32.
475
African Union, Decision on the Support of a Draft Resolution at the Sixty-Sixth
International Centre for Research on Women (ICRW), New Insights on Preventing Child
Ordinary Session of the General Assembly of the United Nations to Ban Female Genital
Marriage: A Global Analysis of Factors and Programs (ICRW, 2007).
p.
82
For example, marriage laws may not always apply to customary or religious marriages,
Mutilation in the World, Doc. Assembly/AU/12(XVII) Add. 5 (2011).
469
ICRW, New Insights on Preventing Child Marriage, 7.
476
470
UNICEF, State of the World’s Children 2015, Table 9.
http://www.unfpa.org/resources/female-genital-mutilation-fgm-frequently-asked-
471
Global Commission, HIV and the Law.
questions. The countries are Benin, Burkina Faso, Central African Republic (1996,
472
For example, see Kate Lyons, “The Gambia Bans Female Genital Mutilation,” The
2006), Chad (2003), Côte d’Ivoire (1998), Djibouti (1994, 2009), Egypt (2008), Eritrea,
“Female Genital Mutilation (FGM) Frequently Asked Questions,” UNFPA, January 2017,
Report on the Study of the African Commission on Human and Peoples’ Rights
not orphaned, may live with chronically ill
parents or adults and be required to work or
put their education on hold in order to take
on household and caregiving responsibilities;
this is particularly the case for female children.
Similarly, their households may experience
greater poverty, and they may be subject to
stigma and discrimination because of their
association with a person living with HIV.
from a lack of appropriate paediatric antiretroviral
medicines, with the development of paediatric
formulations of optimal new drugs lagging several
years behind those for adults.486 Other barriers to
initiating and maintaining children on treatment
include the following:
› difficulty identifying and testing children who
were not tested as infants;
› lack of trained personnel in clinics or at the
community level to identify HIV-exposed
children, link them to care and provide
treatment adherence support; and
›
the lack of youth-friendly testing and
counselling services.487
89.
For many children, access to HIV treatment
and care is limited by medical, social, systemic
and economic barriers, including the failure to
implement appropriate systems and strategies
for early diagnosis and treatment of children.484
Barriers begin with a lack of access to early testing
of HIV-exposed infants, which is critical for the
survival of HIV-positive children. Despite this,
only 51% of children eligible for treatment actually
start antiretroviral therapy.485 Children also suffer
90.
Stigma and fear are barriers for both guardians
bringing children to clinics for HIV testing and
treatment and for children adhering to treatment.
Further, treatment for children is difficult and their
guardians frequently do not have the necessary
Ethiopia, the Gambia, Ghana, Guinea, Guinea Bissau, Kenya, Mauritania, Niger, Nigeria,
483
UNAIDS 2017 estimates.
Senegal, South Africa, Sudan (States of South Kordofan and Gedaref), Tanzania, Togo,
484
Elizabeth Glaser Paediatric AIDS Foundation, Increasing Children’s Access to HIV
Uganda and Zambia.
477
Guardian, 4 June 2014.
478
Mudzuru and Another v. The Minister of Justice CCZ 12/2015.
479
Adopted during the 60th Ordinary Session of the African Commission on Human and
480
Treatment, accessed 22 June 2017, http://www.ipu.org/PDF/publications/children_hiv_
Zoe Flood and Wambua Kavila, “Kenyan Couple Deny Murder in FGM Case,” The
en.pdf.
485
Martina Penazzato et al., “Optimizing Research to Speed Up Availability of Pediatric
Antiretroviral Drugs and Formulations,” Clinical Infectious Diseases 64 (2017):
1597–1603.
Peoples Rights held in Niamey, Niger, 8–22 May 2017.
486
Penazzato et al., “Optimizing Research.”
Adopted by SADC Parliamentary Forum at its 39th Plenary Assembly Session, Ezulwini,
487
Elizabeth Glaser Pediatric AIDS Foundation, Haba Na Haba, Technical Bulletin: Spotlight
Swaziland.
on . . . Pediatric HIV Care and Treatment (Washington DC: Elizabeth Glaser Pediatric
481
UNAIDS, Children and HIV: Fact Sheet (Geneva: UNAIDS, 2016).
AIDS Foundation, 2015), http://www.pedaids.org/page/-/uploads/resources/HNH_
482
Global Commission, HIV and the Law.
Tech%20bulletin%20June%202015%20RGB.pdf.
p.
83
Report on the Study of the African Commission on Human and Peoples’ Rights
training and support to help care for children
living with HIV.488
protection and development of the child, and to
assist persons responsible for children, including
through the provision of material assistance
such as nutrition, health, education, clothing
and housing.495
91.
Certain HIV-related laws and policies limit the
ability of adolescents and young people to make
informed decisions about health and relationships
independent of their parents and guardians.489
There are often inconsistencies between the age
of consent for marriage, sex and access to HIV
testing, treatment and sexual health services.
Few African countries have laws that set an age
at which children can independently consent
to medical treatment, HIV testing or accessing
contraceptives.490 There also are few laws that
recognise the rights of young people to sexuality
education.491 As a result, children are unable to
safely access information, prevention, testing and
treatment for HIV, even when they are willing to
do so. Further, nine out of 17 reporting countries
in eastern and southern Africa that responded to
the National Commitments and Policy Instrument
reported the existence of age restrictions for
accessing condoms.492 In western and central
Africa, seven out of 16 reporting countries
reported the existence of these restrictions.493
Good practices
94.
A number
of African countries—including
Botswana, Kenya, Lesotho, Madagascar, Malawi,
Mozambique, South Africa and Uganda—have
developed new children’s laws based on the
principles in the Convention on the Rights of
the Child. These new laws are generally more
responsive to the social context of children’s
lives. A number of the HIV laws developed in 26
African countries contain protection for the rights
of children affected by HIV and AIDS.496
95. Other sexual and reproductive health services such
as HIV testing and accessing contraceptives are
important for adolescents. For example, Lesotho’s
Children’s Protection and Welfare Act, 2011,
provides in Section 240(2) that a child who is at
least 12 years of age may independently consent to
medical treatment if they are of “sufficient maturity
and have the mental capacity to understand the
benefits, risks, social and other implications of the
treatment or operation.” Likewise, Senegal’s Loi
n° 2010-03 Relative au VIH/SIDA provides in
Article 12 that a minor over the age of 15 years
may consent independently to HIV testing.
92.
For orphaned children, their recognition in law
through birth registration and the legal recognition
of the parental rights and responsibilities of their
de facto caregivers may be critical to their access to
health care, education and social support services.
Yet in many countries, children remain unregistered
at birth.494 Additionally, the rights of orphaned
children to family property may be violated in
instances where inheritance laws fail to protect their
rights in favour of older male relatives.
96. In December 2013, ministers of education and
health from 20 countries in eastern and southern
Africa adopted the Ministerial Commitment
on Comprehensive Sexuality Education and
Sexual and Reproductive Health Services for
Adolescents and Young People in Eastern and
Southern African, which calls for “bold actions to
ensure quality comprehensive sexuality education
and youth-friendly sexual and reproductive
health services in the ESA region.”497 These
actions include the “urgent review—and where
necessary amend[ment]—[of] existing laws and
policies on age of consent, child protection . .
93.
The
African Children’s Charter explicitly
recognises that children separated from their
parents are entitled to special protection and
assistance. It further recognises the following:
› a child’s right to be registered at birth, to receive
an education, and to be protected from economic
exploitation, child abuse and torture; and
› the State’s responsibility to ensure the survival,
488
UNAIDS, Children and HIV: Fact Sheet.
489
African Commission, General Comment No. 3; UNAIDS, Report of the Global AIDS
Technical Paper, accessed 22 June 2017, https://www.unicef.org/esaro/Technical_paper_
low_res_.pdf.
Epidemic (Geneva: UNAIDS, 2015); and United Nations Committee on the Rights of the
495
See, among others, Arts 5, 14, 16 of the African Children’s Charter.
Child, General Comment No. 4 on Adolescent Health and Development in the Context
496
Global Commission, HIV and the Law.
of the Convention on the Rights of the Child (2003).
497
Young People Today, Ministerial Commitment on Comprehensive Sexuality Education
490
Global Commission, HIV and the Law.
and Sexual and Reproductive Health Services for Adolescents and Young People in
491
Patrick Michael Eba and Hye Young Lim, “Reviewing Independent Access to HIV
Eastern and Southern African (2013), available at http://www.unesco.org/fileadmin/
Testing, Counselling and Treatment for Adolescents in HIV-Specific Laws in sub-Saharan
p.
84
MULTIMEDIA/HQ/HIV-AIDS/pdf/ESACommitmentFINALAffirmedon7thDecember.pdf.
Africa: Implications for the HIV Response,” Journal of the International AIDS Society 20,
498
Young People Today, Ministerial Commitment, para. 3.2.
no. 1 (2017): 21456; Global Commission, HIV and the Law.
499
Section 11(1) of the Children’s Protection and Welfare Act, No 7 of 2011.
492
UNAIDS 2017 National Commitments and Policy Instrument.
500
Article 1 of the Convention on the Rights of Persons with Disabilities defines a
493
UNAIDS 2017 National Commitments and Policy Instrument.
person with a disability as having “long-term physical, mental, intellectual or sensory
494
UNICEF, Strengthening Birth Registration in Africa: Opportunities and Partnerships
impairments which in interaction with various barriers may hinder their full and effective
Report on the Study of the African Commission on Human and Peoples’ Rights
. to improve independent access to sexual and
reproductive health services for adolescents and
young people.”498
a result of HIV-related illness.505 Yet despite the
multi-layered needs of persons with disabilities,
national responses to HIV fail to recognise, reflect
and integrate their specific needs, thus increasing
the impact of HIV on their lives.506
97. Finally, countries have introduced child-specific
forms of social protection to support orphans and
vulnerable children. For example, some countries
have legislated broad socio-economic rights within
children’s statutes, such as Section 11(1) of the Lesotho
Children’s Protection and Welfare Act, 2011, which
provides that a “child has a right to access education,
preventive health services, adequate diet, clothing,
shelter, medical attention, social services or any other
service required for the child’s development.”499
Good practices
101.
The African Commission has adopted a draft
protocol on the rights of persons with disabilities.507
The protocol does not specifically mention HIV,
but it does call on States to ensure that all persons
with disabilities have equal access to health services,
including those for sexual and reproductive health.
It also calls on States to prohibit discrimination by
health-service providers.
PERSONS WITH DISABILITIES
102.
A number of countries in Africa have committed
98. There is limited evidence available on persons with
disabilities and HIV. Their marginalised and
stigmatised status in society, limited access to healthcare services, and experiences of high rates of
violence, sexual abuse and poverty render persons
with disabilities more vulnerable to HIV and less
likely to be able to access services when they are
HIV-positive.501 The limited research undertaken
suggests that people with disabilities have a similar, if
not higher, risk of contracting HIV than the general
population.502 For instance, a 2012 study in South
Africa found an HIV prevalence rate of 16.7%
among persons with disabilities, approximately the
same as the general population.503
to the Convention on the Rights of Persons with
Disabilities and have begun to develop protective,
anti-discrimination laws to protect the rights of
persons with disabilities. More than half of the
countries in East and southern Africa have included
disability-related provisions in their national
constitutions, and the EAC includes strong protection
for the rights of persons with disabilities in the HIV
and AIDS Prevention and Management Law.508
500
INDIGENOUS PERSONS
103. The prevalence of HIV and specific risk factors
among indigenous populations in Africa is
significantly underexplored and data are limited.509
Indigenous populations in Africa experience
particular human rights violations that increase
their vulnerability to HIV infection, including
political and economic marginalisation, de facto
discrimination of non-agricultural groups, loss of
land and community, lack of access to health care
(often due to geographic isolation) and poverty.510
99. People living with HIV who have a disability face
significant barriers to accessing health-care services.
These barriers include the attitudes of healthcare providers towards persons with disabilities
(particularly in relation to sexual and reproductive
health care), the limited accessibility of services and
educational materials for persons with disabilities
(both physical accessibility and general availability),
and the limited provision of services that are tailored
to meet their specific needs.504
104.
The health of indigenous persons, including in
relation to HIV, is closely connected to other
fundamental rights, such as loss of ancestral lands,
cultural identity and traditional ways of life.511
To fully address the HIV needs of indigenous
100. People living with HIV are at risk of becoming
either permanently or episodically disabled as
participation in society on an equal basis with others.”
501
508
OHCHR et al., HIV/AIDS and Disability Policy Brief; Tun et al., “Limited Accessibility”; and
UNAIDS, The Gap Report.
502
HEARD, National Response.
503
UNAIDS, The Gap Report.
504
OHCHR et al., HIV/AIDS and Disability Policy Brief.
505
HEARD, National Response.
506
HEARD, National Response.
507
Draft Protocol to the African Charter on Human and Peoples’ Rights on the Rights of
Persons with Disabilities in Africa (2016).
Liesl Gerntholtz et al., Disability Rights, HIV/AIDS in Eastern and Southern Africa
(Durban: HEARD, 2010).
509
Interagency Coalition on AIDS and Development (ICAD), HIV/AIDS and Indigenous
Populations in Canada and Sub-Saharan Africa (Ottawa: Interagency Coalition on AIDS
and Development, 2011).
510
African Commission, Report of the African Commission on Human and Peoples’
Rights Working Group of Experts on Indigenous Populations/Communities (African
Commission, 2005), 52; ICAD, HIV/AIDS and Indigenous Populations.
511
Health Canada, HIV/AIDS and Indigenous Peoples: Final Report of the 5th International
Policy Dialogue (Ottawa: Health Canada, 2009), 16.
p.
85
Report on the Study of the African Commission on Human and Peoples’ Rights
populations, more evidence needs to be collected
and used to develop policies and programmes
that focus on the health and rights of indigenous
populations within countries.
situations of vulnerability to HIV. Migrants,
refugees and displaced persons may acquire
HIV in their country of destination or while in
transit; in fact, migration has been identified in
certain regions, including southern Africa, as an
independent risk factor for HIV. Whatever their
diverse reasons for leaving, migrants, refugees
and displaced persons often find themselves
separated from their spouses, families and familiar
social and cultural norms, and this situation
increases their vulnerability. For example, they
may face numerous barriers, including language,
substandard living conditions, exploitative working
conditions and lack of social protection (including
health insurance). This in turn may lead them to
engage in risky behavior, such as unsafe sex or drug
use, or it may lead to experiences of sexual violence
and other abuses, thus increasing risk of HIV. This
vulnerability also affects those who do not migrate:
for instance, women who stay behind when their
spouses migrate may face ongoing economic
challenges and food insecurity precipitated by the
husband’s or partner’s migration, making them
also vulnerable to increased risk of HIV.
Good practices
105. Most
African countries have affirmatively
adopted the UN Declaration on the Rights of
Indigenous Peoples.512 The African Commission
has established the Working Group on Indigenous
Populations/Communities in Africa, which has the
potential to conduct research on issues related to
HIV in indigenous communities.
106.
Only a few countries have adopted laws and
policies seeking to address the rights of indigenous
people. In 2006, the Republic of the Congo
adopted a law that provides protection for the
rights of indigenous peoples.513 The Central
African Republic was the first country in Africa
to ratify the International Labour Organisation’s
Indigenous and Tribal Peoples Convention, 1989
(No. 169), which outlines the rights of indigenous
peoples. These are important legislative steps
that should be accompanied by effective
implementation, including measures to prevent
and respond to health and HIV challenges facing
indigenous populations.
109.
The increased HIV risk and vulnerability is
exacerbated by inadequate access to HIV
prevention, treatment and care services.
Migrants, refugees and displaced persons rarely
have the same entitlements as citizens or locals
to insurance schemes that make health care
affordable; they also are more vulnerable to HIV
stigma or to discrimination when they seek HIVrelated information or support.517 In particular,
undocumented migrants face complex obstacles
because they often lack complete access to healthcare services or social protection, leaving them
highly vulnerable to HIV.
MIGRANTS, REFUGEES AND INTERNALLY
DISPLACED PERSONS
107. At the end of 2015, 65.3 million individuals were
forcibly displaced worldwide, including 21.3 million
refugees, 40.8 million internally displaced persons
and 3.2 million asylum seekers.514 In Africa, there
were 4.4 million refugees in 2015. It is estimated that
there are some 1 billion people who live outside of
their original places of birth or residence, including
both international and internal migrants.515 Almost
half of international migrants are women and girls,
and in some countries, women now outnumber
men among migrants.516
110.
Among the population of migrants, refugees or
internally displaced persons, women and girls
are particularly vulnerable to sexual exploitation,
gender-based violence and HIV.518 Sexual
harassment, abuse and rape are experiences
commonly reported by female migrants, refugees
and internally displaced persons. In Kwa Zulu-
108. Migration and displacement can place people on
the move and those they leave behind in heightened
512
“Press Release: General Assembly Adopts Declaration on Rights of Indigenous Peoples;
‘Major Step Forward‘ Towards Human Rights for All, Says President,” United Nations,
513
514
Framework for Action (Geneva: ILO; 2017).
517
AIDS in West Africa,” in: Women Migrants and HIV/AIDS: An Anthropological Approach,
YbOuGO9I.
Proceedings of the Round Table held on 20 November 2004 (Paris: UNESCO; 2005):
“New Law to Protect Rights of Indigenous Peoples,” IRIN News, 7 January 2011, http://
5–14.
www.irinnews.org/report/91564/congo-new-law-protect-rights-indigenous-peoples.
518
ILO, Promoting a Rights-based Approach,37.
UNHCR, Global Trend: Forced Displacement in 2015 (Geneva: UNHCR; 2016), http://
519
UNAIDS, Gap Report, 159; T Welz et al., “Continued Very High Prevalence of HIV
www.unhcr.org/576408cd7.pdf.
p.
86
UNAIDS, Gap Report, 157; John K. Anarfi, “Women’s Migration, Livelihoods and HIV/
13 September 2007, https://www.un.org/apps/news/story.asp?NewsID=23794#.WV-
515
UNAIDS, Gap Report, 157.
516
ILO, Promoting a Rights-based Approach to Migration, Health, and HIV and AIDS: A
Infection in Rural KwaZulu- Natal, South Africa: A Population-based Longitudinal Study,
AIDS, 21m no. 11 (2007): 1467–1472.
520
UNAIDS, Gap Report,164
Report on the Study of the African Commission on Human and Peoples’ Rights
Natal, South Africa, where migration is common,
HIV prevalence among young migrant women
aged 25–29 years was as high as 63%.519
transgender people and people who inject
drugs.525 This report also covers prisoners as a key
population as suggested by UNAIDS and WHO in
their definition of key populations.526
111. Migrants, refugees and displaced persons often face
conditions in their host country that make them
vulnerable to HIV. Further violating their rights
through compulsory testing and treating them as
criminals with detention and deportation can be
traumatic. This can be compounded by the stigma
and financial consequences of being deported due
to an HIV-positive status.
115. Like all populations, key populations are entitled to
full protection of their rights, including the rights to
equality, non-discrimination, the highest attainable
standard of health care, dignity and freedom
from cruel, inhuman and degrading treatment or
punishment.527 These populations, however, often
suffer from punitive laws or stigmatising policies
that can increase their likelihood of exposure
to HIV. That same stigma, discrimination and
violence, coupled with punitive laws, also serves to
create barriers to accessing services.528
Good practices
112.
Some countries, such as Ethiopia and Kenya,
have recognised the increased vulnerability to
HIV of migrants and refugees, and they have
used national AIDS strategies to address this. This
includes programmes aimed at reaching mobile
populations so that they receive effective HIV
prevention, treatment, care and support services.520
116.
At most, key populations across Africa have
received limited protective rights-based responses
at the continental, regional and national levels.
National HIV laws tend to focus narrowly on the
rights of people living with HIV, and national HIV
responses fail to include the participation of key
populations or to prioritise their needs in HIVrelated law and human rights programmes.529
113.
With the exception of Egypt and Mauritius,
no country in Africa applies restrictions to
the entry, stay and residence of persons living
with HIV. In 2010, Namibia lifted its HIVrelated travel restrictions, and several African
countries—including Burkina Faso,521 Congo,522
Kenya523 and Uganda524—have explicitly stated
in their national legislation that an HIV-positive
status should not be a barrier to the entry, stay
or residence of persons living with HIV. These
provisions are in line with human rights standards
and public health recommendations.
KEY POPULATIONS IN NEED OF SPECIFIC
PROTECTION AND ACCESS TO HIV AND
HEALTH SERVICES
Gay men and other men who have sex with men
117. Globally, gay men and other men who have sex with
men are 24 times more likely to acquire HIV than
men in the general population.530 In 2012, some of
the highest regional median HIV prevalence rates
among men who have sex with men were reported
in western and central Africa (14%) and eastern and
southern Africa (17%). New infections also appear
to be rising in several regions.531
118.
Criminalisation,
violence, discrimination and
other human rights violations based on sexual
orientation are contrary to international human
rights law. They also have significant negative
consequences on the HIV epidemic and public
health, contributing to an environment of fear that
drives LGBTI people away from HIV services.
The possession of HIV and health commodities
associated with or labelled for use by gay men
and other men who have sex with men (such as
114. The HIV epidemic does not affect all persons
equally. Key populations—already marginalised
through other forms of stigma, inequality and
discrimination—are disproportionately affected.
UNAIDS and WHO have identified four main
populations to be key populations: gay men and
other men who have sex with men, sex workers,
521
Article 19, Loi n° 030-2008/AN portant lutte contre le VIH/SIDA et protection des
droits des personnes vivant avec le VIH/SIDA, 2008 of Burkina Faso.
522
Guidelines, 2015.
Article 40, Loi n° 30-2011 du 3 juin 2011 portant lutte contre le VIH et le SIDA et
526
As above.
protection des droits des personnes vivant avec le VIH, 2011 of Congo.
527
UNAIDS, The Gap Report.
523
Uganda, HIV Prevention and Control Act of 2014, Art. 34.
528
UNAIDS, The Gap Report.
524
Kenya, HIV and AIDS Prevention and Control Act, 14 of 2006, Section 33(2).
529
UNAIDS, Desk Review of National Strategic Plans in East and Southern Africa (Geneva:
525
WHO, Consolidated Guidelines on HIV Prevention, Diagnosis, Treatment and
UNAIDS, 2011).
Care for Key Populations (Geneva: WHO, 2014), http://apps.who.int/iris/
530
UNAIDS special analysis, 2016.
bitstream/10665/128049/1/WHO_HIV_2014.8_eng.pdf; UNAIDS, UNAIDS Terminology
531
UNAIDS, The Gap Report, 203.
p.
87
Report on the Study of the African Commission on Human and Peoples’ Rights
lubricants) has been used as evidence in criminal
cases.532 Fear of negative consequences can prevent
uptake of health services and hinder gay men and
other men who have sex with men from disclosing
their sexual behaviour to health-care providers. In
Botswana, Malawi and Namibia, more than 80%
of gay men and other men who have sex with men
have not disclosed their same-sex sexual practices
to a health practitioner.533 Poor access to healthcare services among gay men and other men who
have sex with men translates into “underutilization
of services, such as HIV voluntary counselling and
testing, and ultimately to low self-awareness of
HIV sero-status” among this key population.534
working with gay men and other men who have
sex with men negatively impacted HIV prevention
efforts. According to a study conducted in Senegal
following these arrests, all participants reported
pervasive fear and hiding among men who have
sex with men because of the arrests and subsequent
publicity. Many service providers suspended HIV
prevention work with gay men and other men
who have sex with men out of fear for their own
safety, while those who continued to provide services
noticed a sharp decline in participation.540
122.
In recent years, a number of countries have
introduced new laws against these populations, in
some cases extending criminalisation to individuals
and organisations perceived to support same-sex
sexual relationships. This is believed to have led to
increased harassment and prosecution on the basis
of sexual orientation and gender identity, and to
increased difficulties in reaching this population for
health workers, in part due to limited funding and
national spending intended to meet their specific
needs.541 In Nigeria, for example, research has
shown the negative impact that the passage of new
legislation criminalising same-sex sexual conduct
and related activities has had on access to HIV
treatment and care, including higher numbers of
gay men and other men who have sex with men
reporting fear of seeking health-care services.542 As
part of a crackdown on same-sex sexual relations
in 2016, Tanzania banned the import, sale and
distribution of sexual lubricant, a commodity
considered by health experts to be critical for
preventing HIV during sex.543
119. In Malawi, only 17% of men who have sex with
men reported having been exposed to specific HIV
prevention messaging for men who have sex with
men, and only 35% had been tested for HIV.535
In Zambia, 73% of men who have sex with men
had misinformation about HIV, thinking that anal
sex was safer than vaginal sex.536 Lack of HIV
prevention tools and messaging for gay men and
other men who have sex with men compromises
their ability to know and reduce the risk of HIV
infection for themselves and their sexual partners.
Similarly, treatment and care services to address the
specific health needs of LGBTI people, including
anorectal health services for gay men and other
men who have sex with men, are often limited or
not available in many health facilities.537
120. Rights violations against gay men and other men
who have sex with men are increasingly reported
on the continent. They include rape, murder,
harassment, violence, extortion and threats
against both individuals and the organisations
that support them.538 Over 30 African States
criminalise same-sex sexual relationships in some
way, often with penalties for those convicted that
range from imprisonment (for up to 14 years or
life) to the death penalty.539
121. In Senegal, the 2008 arrest for “acts against nature”
Good practices
123.
A number of countries, including Mozambique
and South Africa, have removed laws criminalising
same-sex sexual conduct. South Africa’s law was
struck down by the Constitutional Court, which
declared it a violation of equality rights and the
rights to privacy, dignity and equal protection.544
124.
In 2014, the Constitutional Court of Uganda
of nine HIV prevention and outreach personnel
overturned
Anti-Homosexuality
Global Commission, HIV and the Law, 47.
533
Fay et al., “Stigma, Health Care Access, and HIV Knowledge.”
534
Fay et al., “Stigma, Health Care Access, and HIV Knowledge.”
535
Fay et al., “Stigma, Health Care Access, and HIV Knowledge.”
536
Fay et al., “Stigma, Health Care Access, and HIV Knowledge.”
537
Ross D. Cranston, “Anal Cancer Prevention: How We are Failing Men Who have Sex with
541
UNAIDS, The Gap Report.
Men,” Sexually Transmitted Infections 84 (2008): 417–419; and C. Williamson, “Providing
542
S. Schwartz et al., “The Immediate Effect of the Same-Sex Marriage Prohibition Act on
538
88
Uganda
532
Africa (2013).
539
International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA), Africa from a
Gay and Lesbian Human Rights Perspective (2013).
540
Tonia Poteat et al., “HIV Risk among MSM in Senegal: A Qualitative Rapid Assessment of
the Impact of Enforcing Laws that Criminalize Same Sex Practices,” PLOS ONE 6 (2011): 12.
Care to Transgender Persons: A Clinical Approach to Primary Care, Hormones, and
Stigma, Discrimination, and Engagement on HIV Prevention and Treatment Services in
HIV Management,” Journal of the Association of Nurses in AIDS Care 21, no. 3 (2010):
Men Who have Sex with Men in Nigeria: Analysis of Prospective Data from the TRUST
221–229.
p.
the
Amnesty International, Making Love a Crime: Criminalisation of Same Sex Conduct
Cohort,” The Lancet HIV 2, no. 7 (2015): e299–e306.
543
Agence France Presse (AFP), “Tanzania Bans Lube in Crackdown on Gays,” 23 July
in Sub-Saharan Africa (London: Amnesty International, 2013), 9; and AMSHeR et
2016, http://www.news24.com/Africa/News/tanzania-bans-lube-in-crackdown-on-
al., Violence Based on Perceived or Real Sexual Orientation and Gender Identity in
gays-20160722-26.
Report on the Study of the African Commission on Human and Peoples’ Rights
Act, 2014. The claimants argued that proper
procedures for its enactment had not been followed
and that the Act breached the Constitutional
rights of equality, non-discrimination and dignity.
The Court found for the applicants on the basis
of procedural issues and declined to explore
the human rights arguments.545 The National
Human Rights Commission of Uganda also had
publically criticised the Anti-Homosexuality Act
as unconstitutional, including providing comments
about its effect on the right to health for all persons
in the context of HIV.546
128. Transgender persons are marginalised, abused and
often rejected by their families and society from an
early age. Discrimination, gender-based violence
and abuse—as well as marginalisation and social
exclusion—can damage their health and increase
vulnerability to HIV. In the face of such treatment,
transgender persons are less likely to seek out health
care and testing, even though they are vulnerable to
HIV through sexual assault and often are pushed
into high-risk jobs, such as sex work.550
129.
In 2011, two transgender youths in Cameroon
who identify as women were arrested, harassed
and tortured in prison before being tried and
convicted of homosexuality, primarily based
on evidence that they were wearing women’s
clothing.551 In 2013, the Trans Murder Monitoring
Project reported four murders and numerous
instances of physical violence against transgender
persons in South Africa.552
125. In 2013, Botswana’s Director of Civil and National
Registration refused to register the organisation
Lesbians, Gays and Bisexuals of Botswana
(LEGABIBO). Fourteen activists from LEGABIBO
filed a complaint in the High Court in March
2014 alleging the refusal was unconstitutional.
In November 2014, the court held that the
failure to register LEGABIBO was unlawful and
unconstitutional, violating the applicant’s right to
freedom of expression, association and assembly.547
130. Research conducted in Cameroon, Egypt, Kenya,
Tunisia, Uganda and Zambia shows that law
enforcement officials work in tandem with medical
personnel to subject transgender men and women
arrested on homosexuality-related charges to
forced anal examinations with the purported
objective of finding so-called proof of homosexual
conduct.553 This practice turns medical personnel
into an arm of the State, implicating them in tests
that have been described as a form of torture or
cruel, inhuman and degrading treatment. This
consequently widens the gap in trust between sexual
and gender minorities and health-care providers.554
In its General Comment No. 4 on The Right to
Redress for Victims of Torture and Other Cruel,
Inhuman or Degrading Punishment or Treatment,
the African Commission explicitly lists forced anal
and other testing as forms of sexual and genderbased violence that may amount to torture and illtreatment under the African Charter.555
126.
Current promising practices tend towards harm
reduction rather than law reform, including efforts
to provide specialised prevention and treatment
programmes for gay men and other men who have
sex with men, despite laws that criminalise samesex sexual relationships within countries. Promising
results have been seen with services that find ways
to reach less visible populations (e.g. through digital
mapping of populations and the provision of homebased testing and counselling services).548
Transgender people
127.
Transgender women are one of
the most
vulnerable groups in relation to HIV, being 49
times more likely to be living with HIV than other
adults of reproductive age.549 In Africa, there is
limited information on the impact of HIV on
transgender women and men; for the most part,
they are an invisible population in responses to
the HIV epidemic.
544
545
546
Good practices
131.
Resolution 275 of
the African Commission
specifically condemns the increasing violence
National Coalition for Gay and Lesbian Equality & Anor v. The Minister for Justice and
Ors (1998) CCT 11/98.
Transgender Access to Sexual Health Services in South Africa: Findings from a Key
Oloka-Onyango & Nine Others v. Attorney General, No. 08 of 2014, UGCC 14 (1 August
Informant Survey (Gender Dynamix and amfAR, 2012); and Kenya Human Rights
2014).
Commission, The Outlawed Amongst Us: A Study of the LGBTI Community’s Search for
“Uganda: Anti-Homosexuality Law Will Come at a Serious Cost,” Human Rights Watch,
Equality and Non-Discrimination in Kenya (Nairobi: Kenya Human Rights Commission,
19 February 2014, https://www.hrw.org/news/2014/02/19/uganda-anti-homosexuality-
2011).
law-will-come-serious-cost.
551
AMSHeR and CAL, Violence Based on Perceived or Real Sexual Orientation.
ARASA et al., Sexual Orientation, Gender Identity, HIV and Human Rights: An Advocacy
552
AMSHeR and CAL, Violence Based on Perceived or Real Sexual Orientation.
Toolkit (2015).
553
Human Rights Watch, Dignity Debased.
548
As above.
554
Human Rights Watch, Dignity Debased.
549
Baral et al., “Worldwide Burden.”
555
General Comment No. 4 on the African Charter on Human and Peoples’ Rights:
550
“Transgender People and HIV and AIDS,” AVERT, 9 May 2017, https://www.avert.org/
The Right to Redress for Victims of Torture and Other Cruel, Inhuman or Degrading
professionals/hiv-social-issues/key-affected-populations/transgender; Marion Stevens,
Punishment or Treatment (Article 5), March 2017, para. 58.
547
p.
89
Report on the Study of the African Commission on Human and Peoples’ Rights
and human rights violations of persons on the
basis of their gender identity, including systemic
attacks of State and non-State actors. It calls on
States to end all violence and abuse, including
by enacting and applying appropriate laws that
punish all forms of violence and ensure proper
investigation and prosecution.
135. Sex work—or aspects of sex work—is criminalised in
approximately 35 African Union Member States.563
Criminalisation places sex workers at increased risk
of violence and harassment from law enforcers and
the public, driving key populations underground
and deterring access to health-care services.564 Law
enforcement practices such as arbitrary detention
and arrests based on condom possession deter sex
workers from accessing condoms, placing them
at risk of HIV infection. Sex workers also have
been forced to undergo mandatory HIV testing
and have been charged with spreading STIs.565
A study in Burkina Faso and Togo found that
laws criminalising sex work acted as a barrier to
participation in service design and use of health
services for sex workers.566 Conversely, a modelling
study in Kenya found a reduction in HIV infections
of around 25% when physical and sexual violence
against sex workers is reduced.567
132.
A few countries are beginning to recognise the
need to include transgender populations in their
national HIV responses. South Africa allows
transgender persons to legally change their sexual
identity.556 For the most part, however, transgender
persons remain an ignored population: countries
have a limited understanding of the HIV incidence
and prevalence amongst transgender persons and
of the key HIV-related human rights issues that act
as barriers to their access to health-care services.
Sex workers
133. Globally, female sex workers are estimated to be 10
times more likely to acquire HIV than women in the
general population.557 In sub-Saharan Africa, HIV
prevalence among female sex workers is around
27%.558 Prevalence of HIV among sex workers
in East and southern Africa ranges from 10% in
Eritrea to 72% in Lesotho. Across 12 western and
central African countries, the pooled prevalence of
HIV among sex workers is 14% [4–24%].559
and male sex workers in Africa
face exceptionally high levels of stigma,
discrimination, violence, extortion, sexual abuse
and rape from clients, intimate partners and
law enforcement officials. This places them at
increased risk of HIV.560 In Ethiopia and Kenya,
a survey of female sex workers found that roughly
60% and 79%, respectively, reported violence
relating to sex work; another study in Burkina
Faso and Togo found that 23.9% and 57.9%,
respectively, experienced violence and reported
recent condomless vaginal intercourse.561 Sex
workers also report stigmatising attitudes and
high levels of discrimination when accessing
health-care services, which affects their
willingness to access health care.562
Good practices
136.
In the case of S v. Mwanza Police, Mwanza
District Hospital, the High Court of Malawi held
that mandatory or forced testing of sex workers
for HIV is a violation of their rights to privacy,
equality, dignity and freedom from cruel, inhuman
and degrading treatment.568
137.
The second Pan-African Conference on Prison
and Penal Reform in Africa—held in 2002 in
Ouagadougou, Burkina Faso, under the auspices
of the African Commission—adopted the
Ouagadougou Declaration and Plan of Action on
Accelerating Prisons and Penal Reforms in Africa,
which explicitly calls for the decriminalisation
of sex work as a strategy for reducing prison
populations by preventing people from coming
into the prison system.569
134.
Female
138.
A number
of countries have introduced
programmes to increase access to justice among
sex workers and to support their access to HIV
prevention, treatment and care services. In
Côte d’Ivoire, the Clinique Confiance, which
was established in 1992, provides HIV and STI
prevention and treatment services for female
and male sex workers. The tailored services for
556
See South Africa, Alteration of Sex Description and Sex Status Act, 49 of 2003.
557
UNAIDS special analysis, 2016.
563
558
AMSHeR and CAL, Violence Based on Perceived or Real Sexual Orientation.
559
Sandra Duvall et al., “Assessment of Policy and Access to HIV Prevention, Care and
564
Global Commission, Report of the Africa Regional Dialogue.
Treatment Services for Men Who Have Sex With Men and for Sex Workers in Burkina Faso
565
S v. Mwanza Police, Mwanza District Hospital, Ministries of Justice, Internal Affairs,
that Block or Support Access to HIV Prevention, Treatment, Care and Support (Geneva:
UNAIDS, 2010).
and Togo,” Journal of Acquired Immune Deficiency Syndrome 68, no. 2 (2015): 189–97.
Health, Attorney-General and Ex parte: HB, JM (o.b.o 9 others) (2015) Malawi.
560
Global Commission, HIV and the Law; and UNAIDS, The Gap Report.
566
Duvall et al., “Assessment of Policy.”
561
Duvall et al., “Assessment of Policy.”
567
Michelle R. Decker et al., “Estimating the Impact of Reducing Violence against Female
562
Sex workers from Kenya, South Africa, Uganda and Zimbabwe reported that high levels
Sex Workers on HIV Epidemics in Kenya and Ukraine: A Policy Modeling Exercise,”
of stigma dissuaded them from disclosing their occupation to health workers, limiting
p.
90
UNAIDS, Making the Law Work for the HIV Response: A Snapshot of Selected Laws
American Journal of Reproductive Immunology 69, no. 1 (2013): 122–32.
their access to effective services. It also impacted on their willingness to test for HIV.
568
S v. Mwanza Police.
See UNAIDS, The Gap Report.
569
Ouagadougou Declaration and Plan of Action on Accelerating Prisons and Penal
Report on the Study of the African Commission on Human and Peoples’ Rights
sex workers provided by Clinique Confiance has
increased uptake of HIV and STI prevention
and treatment services among sex workers in the
areas covered. In Kenya, the training of local
sex workers as paralegals helped to educate sex
workers about their rights.570 In Uganda, legal
support services for sex workers—including
a hotline, legal services, documentation of
violations and training on human rights for sex
workers—is working towards reducing violations
against that key population.
with widespread societal stigma and the fear of arrest
and harassment—discourages access to health-care
services and creates legal barriers to the provision of
needle–syringe programmes.576 In Africa, individual
drug possession and use is criminalised and highly
stigmatised throughout the continent, with people
who use drugs facing discrimination at many
levels.577 A survey in Seychelles found high levels of
stigma and discrimination against people who inject
drugs, with 68% percent of those surveyed reporting
being refused a service in the preceding 12 months;
more than 50% reported having been arrested in the
preceding 12 months.578
139. At the regional level, SADC’s HIV Cross-Border
Initiative co-ordinates HIV prevention, treatment,
care and support services for long-distance truck
drivers, sex workers and border communities
along major transport corridors in southern
Africa. It includes a commitment to advocating
for the review of laws and regulatory frameworks
that criminalise sex work and the development of
policy frameworks to increase access to services.
Good practices
142.
A human rights-based approach to drug use
requires a move away from criminalisation towards
harm reduction and support. The UN Committee
on the Rights of the Child, the Committee on
ESCR and the Special Rapporteur on the Right
to Health have all endorsed a harm reduction
approach, as has the Human Rights Council, UN
General Assembly and the OHCHR.579 A number
of countries in Africa are moving towards such an
approach. Even though drug use is criminalised in
Mauritius, the HIV and AIDS Act, 2006, enables
people who use drugs to use a range of HIV
prevention services, such as accessing clean needles,
without penalty. An AIDS Project Management
Group evaluation report showed an increase in
the quality of life and a decrease in drug-seeking
behaviour amongst those who do access services.580
HIV incidence amongst people who inject drugs
has also been dramatically reduced since 2010.581
People who use drugs
140.
Globally, it is estimated that people who inject
drugs are 24 times more likely to acquire HIV
than adults in the general population.571 Eleven
sub-Saharan countries have reported recent data
on prevalence among people who inject drugs that
show a median HIV prevalence of 9% among
three East and southern African countries, and 5%
among seven West and central African countries.572
While the number of people who use drugs in these
areas is small in comparison to some other regions
of the world, it is growing and the HIV infection
rate is growing with it.573 A number of studies have
revealed intersectionality between sex work and
injecting drug use, placing individuals involved in
both at an even higher risk of acquiring HIV.574
Prisoners
143. HIV and TB risk among prisoners is estimated to
be two to 10 times higher than among the general
population. While there is insufficient data on HIV
and TB prevalence in prisons in African countries
to allow any definitive conclusions, the limited
research shows a similar pattern. HIV prevalence
among prisoners in nine East and southern African
countries ranged from 2.5% in Eritrea to 35% in
Swaziland; among 13 West and central African
countries, the range extended from 1.4% in Benin
and Mali to 8.5% in Guinea.582 Studies in Zambia
141.
Multi-person use of injecting equipment is the
primary method of HIV transmission for people who
use drugs. Despite this, 68% of countries in southern
and eastern Africa reportedly have laws that establish
barriers against the provision of harm reduction
services (such as needle–syringe programmes).575 In
addition, the criminalisation of drug use and the
imprisonment of people who use drugs—combined
Reforms in Africa, http://www.achpr.org/instruments/ouagadougou-planofaction/.
570
UNAIDS, The Gap Report.
Surveillance Study (2011), cited in Ministry of Health Seychelles et al., Situation Analysis
571
UNAIDS special analysis, 2016.
of Legal and Regulatory Aspects of HIV and AIDS in Seychelles (Ministry of Health
572
UNAIDS estimates.
573
UNAIDS, Getting to Zero.
574
UNAIDS, The Gap Report; Ministry of Health Seychelles et al., Situation Analysis.
575
Global Commission on HIV and the Law, Report of the Africa Regional Dialogue of
Seychelles, 2013).
579
UNAIDS, 2016), 21.
580
the Global Commission on HIV and the Law (New York: UNDP, 2011), 39, https://
As above.
577
As above.
578
J Bibi et al., Injection Drug Use in the Seychelles Integrated Biological and Behavioural
AIDS Project Management Group, The Right Service, At the Right Place, At The Right
Time: An Evaluation of the National Harm Reduction Programme in Mauritius (Mauritius
hivlawcommission.org/wp-content/uploads/2017/06/AfricaRD_ReportEn.pdf.
576
UNAIDS, Do No Harm: Health, Human Rights and People who use Drugs (Geneva:
National AIDS Secretariat, 2011).
581
Prévention Information Lutte Contre le Sida, Evidence Base to Promote Drug Policy
Reform in Mauritius: Presentation to ARASA Annual Partnership Forum (April 2015).
582
UNAIDS estimate.
p.
91
Report on the Study of the African Commission on Human and Peoples’ Rights
show an HIV prevalence that is nearly double that
of the general adult population.583
In Nigeria, the High Court held that the denial
of medical treatment for HIV-positive prisoners
awaiting trial violated the prohibition of
torture.588 In Botswana, failure to provide noncitizens with treatment and tests constituted a
violation of human rights.589
144. A combination of factors contributes to the high
risk of HIV exposure in prisons. These factors
range from laws, policies and policing practices
that discriminatorily detain certain individuals
from key populations to inhumane conditions and a
failure to ensure the continuity of prevention, care
and treatment, both when people are imprisoned
and after they are released. A study of Zambian
prisons in 2010 revealed severe overcrowding,
minimum ventilation, inadequate sanitation, poor
nutrition, limited health-care staff and services for
HIV prevention and treatment, and high levels of
violence.584 Prisons also are sites of unsafe practices
such as unprotected sex, rape, drug use, multiperson use of injecting equipment and unsterile
tattooing, all of which place prison populations at
high risk for HIV.585
148.
A number of
countries in Africa have now
introduced progressive prison laws, policies, legal
support services and jurisprudence to manage
HIV and TB within prisons. For instance, the
Department of Correctional Services in South
Africa has an integrated HIV and TB policy that
provides prisoners with condoms and prevention
and treatment services for HIV and TB.590
Similarly, the Ministry of Correctional Services in
Lesotho provides access to condoms for prisoners,
despite the existence of laws criminalising sex
between men.591
CONCLUSION
145. Such conditions violate the rights of prisoners to
dignity, health and medical care, and to be free
from cruel, inhuman and degrading treatment
or punishment. Under human rights law, an
individual’s liberty can be restricted as a form of
punishment for a criminal offence, but prisoners
still retain their rights, including the rights to
health and to be free from discrimination. Indeed,
the very fact of their incarceration can mean that
the State has a broader obligation to protect a
prisoner’s health than it does for someone who is
not totally within the State’s control, as outlined
in the UN Standard Minimum Rules for the
Treatment of Prisoners (Nelson Mandela Rules).586
146.
Criminalisation of certain practices, such as sex
149.
The HIV response in Africa continues to face
various legal and human rights challenges,
including
› HIV-related stigma and discrimination;
› gender inequality and discrimination towards
women;
› failure to uphold the human rights of young
people and children;
› restrictive and criminal laws against people living
with HIV and members of key populations; and
› failure to address the HIV and health needs of
other vulnerable populations (such as persons
with disabilities and indigenous populations).
150.
In
spite of these challenges, civil society
organisations, courts, governments and national
and regional human rights institutions are
championing and implementing reforms and
good practices in many areas of laws, policies
and programmes relating to HIV that are based
on human rights. These good practices from
across the continent demonstrate the feasibility
and importance of creating an enabling legal
environment to ensure that no one is left behind in
the response to the HIV epidemic.
between men and drug use, means that policies can
exacerbate risks for prisoners. Due to restrictive
rules and policies, discrimination or resource
constraints, prisons may fail to provide condoms,
ensure access to needle–syringe programmes or
provide voluntary HIV testing and treatment.587
Good practices
147.
A number of courts have upheld the rights of
prisoners to receive HIV treatment in prison.
583
Human Rights Watch et al., Unjust and Unhealthy: HIV, TB and Abuse in Zambian
Prisons (New York: Human Rights Watch, 2010).
584
Human Rights Watch et al., Unjust and Unhealthy.
585
Human Rights Watch et al., Unjust and Unhealthy.
586
OHCHR, Standard Minimum Rules for the Treatment of Prisoners, http://www.ohchr.
589
CACGB-096-14 (2015).
590
p.
92
Leonard S Rubenstein et al., “HIV, Prisoners and Human Rights.”
588
Odafe and Others v. Attorney-General and Others.
Republic of South Africa Department of Health, Guidelines for the Management of
Tuberculosis, Human Immunodeficiency Virus and Sexually-Transmitted Infections in
org/EN/ProfessionalInterest/Pages/TreatmentOfPrisoners.aspx.
587
Attorney General and Others v. Tapela and Another, Court of Appeal Civil Case No.
Correctional Facilities, 2013 (Pretoria: Department of Health, 2013), 12.
591
Libakiso Mathlo, Assessment of the Legal Environment for HIV and AIDS in Lesotho
(UNDP Lesotho, 2016).
Report on the Study of the African Commission on Human and Peoples’ Rights
VI. CONCLUSIONS AND
R E C O M M E N DAT I O N S
CONCLUSIONS
1.
Addressing the HIV epidemic requires paying
due regard to the legal and human rights factors
that influence vulnerability to the epidemic and
represent barriers to service access for those living
with and affected by HIV. Across the continent,
gay men and other men who have sex with men,
women, young people, sex workers, prisoners
and people who inject drugs are among the
populations most affected by the epidemic. Factors
and conditions that make people vulnerable to the
epidemic often are linked to human rights and
legal and social environments. Laws, policies and
practices have a direct impact on the effectiveness
of national responses to the epidemic and the ability
of affected individuals and communities to access
HIV prevention, treatment and care services.
2.
Human rights violations in the context of HIV
take various forms and undermine the response to
the epidemic. These human rights violations and
challenges include inequality and discrimination
towards people living with HIV, which has a
profound effect on the ability of people living
with HIV to enjoy their rights to work, health
care, privacy, dignity and freedom of movement.
In contexts where anti-discrimination laws exist,
implementation and enforcement is often lacking.
Together, insufficient information on rights and
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Report on the Study of the African Commission on Human and Peoples’ Rights
legal services, stigma and a lack of resources pose
significant barriers to accessing legal services.
3.
Compulsory and other forms of coercive HIV
testing violate the right to confidentiality. Overly
broad criminalisation of HIV transmission, nondisclosure and exposure often involve vague and
ambiguous provisions that punish a range of acts
that may only pose a hypothetical risk to others.
7. Restrictions to the activities and work of civil society
organisations, especially those working with key
populations, are an increasing challenge. These
organisations face barriers to registration, operation
and access to domestic and international funding.
The restrictions limit their ability to advocate for a
stronger legal environment for the HIV response or
to provide critical HIV-related services.
8. Armed conflict and post-conflict periods raise
4.
Laws, policies and practices that perpetuate
gender inequality, harmful gender norms and
gender-based violence undermine women and
girls, keeping them in poverty and limiting their
autonomy and decision-making power (including
their ability to access health-care services).
Violence against women is closely correlated
with HIV infection: sexual and intimate partner
violence places women at increased risk of HIV
infection, while men who are violent towards
their partners are more likely to have multiple
partners and HIV.
distinct issues related to HIV prevention and
treatment. During armed conflict, HIV prevention
and treatment services tend to be significantly
reduced because of the instability wrought by war.
Armed conflict also can increase the need for HIV
prevention and treatment services: armed conflicts
where sexual violence is more prevalent appear
to experience higher rates of HIV transmission.
People displaced by conflict also are at an increased
risk of acquiring HIV and have greater difficulty
accessing prevention and treatment services.
9.
In spite of
5. Children, persons with disabilities and indigenous
populations face various human rights violations in
the context of HIV. This, in turn, creates barriers
to their ability to protect themselves from HIV
transmission or to access the necessary treatment,
care and support they require once they have been
infected or affected by HIV. These barriers include
legislation that limits access to HIV services for
children and adolescents and that fails to address
the specific needs and vulnerabilities of persons
with disabilities and indigenous people.
these challenges, national and
regional human rights norms and frameworks
have been applied to address HIV in many
contexts. These include advances in the areas
of legislation and policy, progressive rulings by
courts and the implementation of rights-based
HIV programmes in several countries. Legal and
policy advances have involved outlawing HIVrelated discrimination through national laws
and regional legislation, such as the EAC HIV
Prevention and Management Act of 2012.
10.
Throughout the continent, courts have enabled
6.
Key populations—who are already marginalised
through other forms of stigma, inequality and
discrimination—are disproportionately affected by
HIV. This includes gay men and other men who
have sex with men, male and female sex workers
and their clients, transgender people, prisoners
and people who inject drugs. Members of these
populations face legal and social barriers—including
prosecutions, harassment and discrimination—that
make them vulnerable to HIV and limit their access
to health and HIV services.
p.
94
critical advances in the protection of human rights
in the context of HIV. These have involved decisions
that challenge discrimination based on HIV-related
status, end mandatory testing for sex workers,
defeat overly broad HIV criminalisation, ensure
access to HIV treatment for foreign inmates and
end forced sterilisation of women living with HIV.
Several countries have established programmes
to advance human rights and address barriers to
HIV services, including for key populations. These
include programmes to train police, lawyers and
the judiciary on human rights and HIV, as well as
Report on the Study of the African Commission on Human and Peoples’ Rights
programmes for access to justice for people living
with HIV and members of key populations.
Commission. Human rights protections have also
been applied and interpreted through decisions
on cases and general comments on HIV-related
issues at the global and regional levels. In Africa,
General Comments Nos. 1 and 2 of the African
Commission on Article 14 of the Maputo Protocol
directly relate to the protection of the rights of
women in relation to HIV.
11. Many of the advances in the response to HIV
in Africa have been made possible by global
solidarity and funding from bilateral and
multilateral sources. Yet HIV funding for civil
society and governments is declining. Reductions
in funding poses one of the greatest threats to the
response to HIV, particularly for sustaining and
expanding the protection of human rights.
14. In spite of the importance and potential role of
human rights norms and mechanisms in the
response to HIV in Africa, the actual engagement
of the regional African human rights system
remains limited. This limited engagement by
regional mechanisms is due to a number of factors,
including lack of awareness of the mechanisms
among civil society and community, and limited
resources and focus by the regional human rights
mechanisms on HIV.
12. The global and regional human rights frameworks
contain solid foundations for expanding the
protection of human rights in relation to HIV
in Africa. States on the continent are Parties to
numerous international and regional human
rights treaties that guarantee critical protections
in the context of HIV. These treaties provide
for the protection of many human rights that
are critical to HIV prevention, treatment, care
and support for people living with, vulnerable
to or affected by HIV. Notably, this includes the
following rights (among others):
› to non-discrimination;
› to equal protection and equality before the law;
› to life;
› to the highest attainable standard of physical
and mental health;
› to liberty and security of person;
› to freedom of movement;
› to seek and enjoy asylum;
› to privacy;
› to work; and
› to education.
13.
The protections provided in treaties have been
elaborated upon and applied to HIV through
global and regional commitments, guidelines
and resolutions adopted by bodies at various
levels, including the UN General Assembly,
the African Union, the African Commission,
IGAD, EAC and SADC. In Africa, the African
Commission’s adoption of Resolution 163 in
2010, which established the HIV Committee, was
a critical breakthrough that localised HIV-related
human rights within the work of the African
RECOMMENDATIONS
15.
To States
›
Take immediate steps to review and amend
laws, policies and practices to ensure that
they are in line with human rights norms and
principles, and that they support effective HIV
responses. In particular, steps should be taken
to remove laws and other measures that allow
for discrimination against and criminalisation
of people living with HIV and members of key
populations (including sex workers, people who
inject drugs, gay men and other men who have
sex with men, and transgender persons).
› Adopt effective measures to prevent and redress
human rights violations in the context of HIV,
and refrain from discrimination, criminalization
or other human rights violations against people
living with HIV, key populations and other
vulnerable groups.
› Remove legal, policy, social and other barriers
that limit the rights of women and girls to
access HIV prevention, treatment, care and
support services or those that make them more
vulnerable to HIV.
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Report on the Study of the African Commission on Human and Peoples’ Rights
› Remove legal, policy, social and other barriers
that limit access to HIV prevention, treatment,
care and support services among children and
young people or those that make them more
vulnerable to HIV.
› Remove punitive and restrictive laws, policies
and practices that infringe upon the rights
to freedom of association and assembly of
organisations and human rights defenders
working on health and HIV. Also remove the
punitive and restrictive laws, policies and
practices that stigmatise and discriminate
against particular categories of human rights
defenders on the basis of sex, health status,
sexual orientation, gender identity and
expression, or other status.
› Maintain and expand dialogue and consultation
with civil society organisations working on HIV
and human rights, including those working with
or for key populations.
peer mobilization and support developed for
and by people living with HIV to promote
health, well-being and human rights.
» Programmes to ensure access to HIV-related
legal services.
» Programmes on monitoring and reforming
laws, regulations and policies relating to HIV.
»
Legal literacy
programmes.
(“know
your
»
Sensitization of law-makers
enforcement agents.
rights”)
and
law
» Training for health-care providers on human
rights and medical ethics related to HIV.
»
Programmes to reduce discrimination
against women in the context of HIV.
16. To the African Union and other regional and sub-
› Ensure that national mechanisms responsible for
the response to HIV (including national AIDS
commissions) apply rights-based responses
and guarantee the meaningful participation of
people living with HIV and key populations
in the HIV response, as provided in the good
practices identified in this report.
› Take the necessary measures to increase their
financial allocation to the health sector in
general—and for HIV services in particular—
as agreed in the Abuja Declaration.
› Take the necessary measures to establish and
expand programmes to reduce stigma and
discrimination and to expand access to justice in
the context of HIV and health. These measures
should include the following:
»
Programmes to reduce stigma and
discrimination.
These
can
include
community interaction and focus group
discussions involving people living with HIV
and members of populations vulnerable to
HIV infection, as well as the use of media,
p.
96
regional bodies
› Increase political and technical engagement in
efforts to address the HIV epidemic in Africa,
including the legal and policy challenges
raised by HIV.
› Encourage States to take appropriate measures
to address laws, policies and practices that
violate human rights and act as barriers to
effective responses to HIV.
›
Ensure appropriate attention to HIV and
human rights issues and challenges in the
implementation of key regional and subregional priorities, agendas and frameworks,
including Agenda 2063 of the African Union.
›
Create opportunities for dialogue between
States, civil society and other key stakeholders
on the challenges, good practices and progress
related to the protection of human rights in the
context of HIV.
› Continue to provide space for all civil society
organisations (including those representing
Report on the Study of the African Commission on Human and Peoples’ Rights
key populations) to engage States and other
stakeholders in the response to HIV at the
regional and sub-regional levels, and to ensure
their effective participation in regional policy
development and decision-making processes.
›
Encourage and support full collaboration
between States and national, regional and
international human rights mechanisms, and
support the independence of these mechanisms.
17.
To the African Commission
› Continue to raise awareness on the importance
of promoting and protecting human rights in
the context of HIV, including through country
visits, fact-finding missions, urgent appeals and
the work of subsidiary mechanisms.
› Systematically monitor and denounce human
rights violations that are committed in the
context of HIV, including by publishing
an annual update developed by the HIV
Committee that examines the key human
rights progress and challenges facing the HIV
response in Africa.
›
Fully utilise the protective and promotional
mandates to monitor State compliance with
all relevant human rights norms and standards
relevant to HIV, including through country
visits, recommendations on State reports, factfinding missions, urgent appeals and other
means. In particular,
»
call on Members States to address the
questions provided in the Annex of this study
when preparing their state reports under
Article 62 reports; and
»
ensure that the African Commission and
its subsidiary mechanisms use the questions
provided in the Annex of this study in their
country visits, consideration of State reports
and fact-finding missions.
›
Encourage Member States to conduct law
and policy review and reform, and to adopt,
implement and enforce rights-based laws,
policies and plans in the context of HIV and
AIDS, drawing on international and regional
guidance on HIV law and human rights.
› Monitor and ensure the effective dissemination
and implementation of HIV-related key
resolutions, general comments and guidelines
of the African Commission.
› Develop guidelines and recommendations for
Member States on particular legal and policy
issues affecting the rights of people living with
HIV and key populations. Among other issues,
these guidelines should address criminal law
and its impact on the HIV response.
› Ensure that the HIV Committee has the necessary
technical, human and financial resources to fully
discharge its mandate as provided in Resolution
163 of the African Commission.
› Ensure the effective dissemination and
promotion of the present study and its
recommendations, including through seminars,
promotional visits and other appropriate means.
›
Continue and reinforce collaboration and
dialogue with civil society, governments and
relevant regional and global institutions
working on HIV in order to discuss challenges,
good practices, progress and effective
accountability to advance human rights-based
responses to HIV, including through the work
of the HIV Committee.
› Consider the extension of the mandate of the
HIV Committee in the medium- to long-term
to cover other critical health issues that are
affecting the continent.
18. To the ACERWC
› Require specific information on children and
HIV from Member States in the States Parties
Reporting Guidelines.
› Actively ensure the promotion and protection
of the rights of the child in the context of HIV
through its mandate, including country visits,
reports and resolutions on the rights of the child.
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Report on the Study of the African Commission on Human and Peoples’ Rights
›
Develop a general comment focused on the
rights of the child in the context of HIV and
the obligation of States to respect, protect and
fulfil these rights. This should address access to
HIV prevention, testing, treatment and care
services for children, including access to sexual
and reproductive health services.
the context of HIV. In particular, prioritise
engagement with the African Commission, its
HIV Committee and other regional bodies on
HIV and human rights.
›
Establish and reinforce regional partnerships
and approaches to advance collaboration and
intersectional approaches with the African
Commission and African Union that build
alliances with diverse civil society organisations
working on areas such as women and young
people, and with human rights defenders working
on issues such as health, HIV, sexual orientation,
gender identity and expression, civic space, and
sexual and reproductive health and rights.
›
Encourage Member States to ensure that
domestic legal frameworks protect the rights of
children living with HIV and those vulnerable
to HIV infection.
› Urge Member States to conduct the necessary
law and policy review and reform, and to adopt,
implement and enforce rights-based laws,
policies and plans in the context of HIV and in
accordance with the African Children’s Charter.
›
Increase awareness of ACERWC’s mandate
among civil society and other organisations
working on the rights of the child in the context
of health and HIV.
› Develop innovative approaches to engage the
general public, all branches of government and
other opinion leaders (including the media) on
the critical human rights issues relating to the
HIV epidemic.
21.
19.
To national human rights institutions, gender
commissions and similar bodies
› Effectively use their promotion and/or
protection mandates to hold States accountable
for advancing human rights in the context of
the HIV response.
› Establish focal points on HIV and health within
the institution or commission, and ensure they
are adequately resourced and actively engage
all human rights issues affecting people living
with HIV and members of key populations.
› Work closely with and regularly engage national
authorities and programmes (such as HIV
and TB programmes) working on HIV, TB
and other health issues, as well as civil society
organisations (including those representing key
populations) that are working on these issues.
20.
p.
98
To civil society organisations
›
Continue to engage national, regional and
UN human rights mechanisms to prevent
and respond to human rights violations in
To the media
› Maintain and strengthen dialogue with people
living with HIV and members of key populations.
Support their efforts to advance human rights,
the rule of law, social change and development
in the context of the HIV response.
›
Refrain from inciting hatred against
people living with HIV and members of
key populations, and promote responsible
reporting that advances rights-based and
evidence-informed responses to HIV.
22.
To religious and traditional leaders
› Maintain and strengthen dialogue with people
living with HIV and members of key populations.
Support their efforts to advance human rights,
the rule of law, social change and development
in the context of the HIV response.
› Refrain from inciting hatred against people living
with HIV and members of key populations.
› Encourage an inclusive, protective and humane
attitude towards people living with HIV and
vulnerable and key populations.
Report on the Study of the African Commission on Human and Peoples’ Rights
A N N E X : I N D I C AT I V E Q U E S T I O N S A N D
I S S U E S O N H I V F O R S TAT E P E R I O D I C
REPORTING UNDER ARTICLE 62 OF
T H E A F R I C A N C H A R T E R 592
1.
Data and information relating to the nature,
scope and populations most affected by the HIV
epidemic and TB. In particular, States should
provide information on the following:
› Specific and disaggregated data on HIV and TB
prevalence and incidence for children, women,
young people and key populations (namely sex
workers, gay men and other men who have sex
with men, transgender persons, people who use
drugs and prisoners).
›
Information on the availability, accessibility,
acceptability and quality of HIV prevention
and testing commodities and programmes. This
includes male and female condoms, lubricants,
voluntary medical male circumcision, preexposure prophylaxis and harm reduction
services for people who inject drugs.
› Specific and disaggregated data on access
to and quality of HIV and TB treatment
for children, women, young people and key
populations (namely sex workers, gay men
and other men who have sex with men,
transgender persons, prisoners and people
who use drugs).
› Has the State enacted laws or adopted other
effective measures to address discrimination
and stigma against key populations and other
vulnerable populations in the context of HIV?
If so, provide information on the progress and
challenges relating to the implementation of
these laws and measures.
›
Has the State enacted laws, regulations and
collective agreements to guarantee nondiscrimination in the workplace? If so, provide
information on the progress and challenges
relating to the implementation of these laws,
regulations and other measures.
› Has the State enacted laws to reduce human
rights violations and inequality between men
and women, particularly regarding sexual
and reproductive rights, property, marital
relations, economic opportunities and access
to employment? If so, provide information
on the progress and challenges relating to the
implementation of these laws.
› What actions is the State taking to promote
non-discrimination towards people living with
HIV and key populations?
2. Specific questions relating to the right to non-
discrimination and equality provided under
Articles 2 and 3 of the African Charter.
› Has the State enacted laws in all areas that
protect people living with HIV against direct
and indirect discrimination due to HIV status,
including in employment, education, housing,
social benefits and so on? If so, provide
information on the progress and challenges
relating to the implementation of these laws.
592
3. Specific questions relating to the rights to liberty
and security provided under Article 6 of the
African Charter.
›
Has the State adopted laws or policies to
prohibit mandatory and other forms of coercive
HIV testing or treatment?
› Has the State enacted laws prohibiting coercive
isolation, detention or quarantine solely on the
basis of HIV status?
These questions are also pertinent for the use of the African Commission, its subsidiary
bodies and other African regional human rights mechanisms in promotional visits,
fact-finding missions and other interactions on HIV-related human rights issues with
Members States.
p.
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Report on the Study of the African Commission on Human and Peoples’ Rights
› Has the State enacted confidentiality or privacy
laws to protect people living with HIV and
key populations against abusive disclosure and
other violations of privacy and confidentiality?
› If any of the above laws have been adopted,
provide information on the progress and
challenges relating to their implementation.
4. Specific questions relating to the right to information
provided under Article 9 of the African Charter.
›
What information programmes are in place
to promote access to scientifically accurate
information on HIV-related prevention,
treatment and care for all?
› Do these programmes appropriately address
the needs and realities of key populations,
children, persons with disabilities and other
vulnerable populations?
›
Provide information on the progress and
challenges relating to the implementation of the
above programmes.
›
Does the State apply any restrictions to the
entry, stay or residence of people living with
HIV based of their HIV status?
› Does the State apply any restrictions to the entry,
stay or residence of members of key populations?
›
If any of the above restrictions exist, what
measures are being taken to remove them?
Please specify.
7. Specific questions relating to the right to work
under Article 15 of the African Charter.
› Does the State have laws, regulations and specific
programmes to protect and promote the rights of
people living with HIV to do the work of their
choice and to be free from discrimination in access
to work? If so, provide information on the progress
and challenges relating to the implementation of
these laws, regulations and programmes.
› Does the State protect people living with HIV
from arbitrary termination of employment?
If so, provide information on the nature and
implementation of such protection.
5. Specific questions relating to the right to freedom
of association (Article 10) and the right to freedom
of assembly (Article 11) under the African Charter.
› Are people living with HIV allowed to form
associations and register them?
›
Are key populations (such as gay men
and other men who have sex with men,
transgender persons, people who use drugs or
sex workers) allowed to form associations and
register as organisations?
›
Are there any restrictions on the ability of
organisations to register, operate or receive
funding? If yes, please specify.
› Are there restrictions on the ability of people
living with HIV and key populations to
assemble? If so, please specify.
6. Specific questions relating to the right to freedom
of movement and residence provided under Article
12 of the African Charter.
p. 100
› What measures are being taken by the State
to create an enabling working environment
in relation to HIV in accordance with
Recommendation 200 of the International
Labour Organization?
8. Specific questions relating to the right to enjoy the
best attainable state of physical and mental health
under Article 16 of the African Charter.
› Has the State taken measures to ensure the right
of people living with HIV and key populations to
non-discrimination in access to health services?
› What programmes and measures are in place
to ensure access to HIV and TB prevention,
treatment and care—as well as other healthcare services—for people living with HIV?
› Has the State taken measures to increase access to
affordable medicines, including through the use
of the flexibilities under the TRIPS Agreement?
Report on the Study of the African Commission on Human and Peoples’ Rights
›
If any of the above measures have been
adopted, provide information on the progress
and challenges relating to their implementation.
9. Specific questions relating to the right to education
under Article 17 of the African Charter.
› Has the State taken measures to ensure the
right of people living with HIV and key
populations to non-discrimination in access
to education? If so, provide details on these
measures as well as the progress and challenges
relating to their implementation.
›
What education programmes are in place
to promote information on HIV-related
prevention, treatment and care for all? Do
these programmes appropriately focus on key
populations, children, persons with disabilities
and other vulnerable populations?
10. Specific measures relating to the right to the family
under Article 18(1) of the African Charter.
›
Has the State enacted laws protecting the
rights of people living with HIV to marry and
form a family? If so, provide details on these
laws and the progress and challenges relating
to their implementation.
› Has the State enacted laws prohibiting child
marriage in order to protect the rights of
adolescents from harmful norms that place
them at risk of HIV exposure? If so, provide
details on these laws as well as the progress and
challenges relating to their implementation.
11. Specific questions relating to the elimination
of discrimination against women under
Article 18(3) of the African Charter and to
the promotion and protection of the rights of
women under the Maputo Protocol.
›
Has the State enacted laws, regulations
or programmes protecting and promoting
the rights of women and girls to HIV and
other health-care services? If so, provide
information on the progress and challenges
relating to the implementation of these laws,
regulations and programmes.
›
Has the State taken measures to guarantee
access to appropriate health and HIV services
for women and girls without discrimination?
If so, provide information on the progress and
challenges relating to the implementation of
these measures.
› Do health programmes address the specific
health
needs—including
sexual
and
reproductive health needs—of women living
with HIV? If so, provide information on
the progress and challenges relating to the
implementation of these programmes.
› Has the State taken measures to promote the
health rights of pregnant women living with
HIV and TB, including the right to access
sexual and reproductive health care without
discrimination, and the right to access services
for PMTCT? If so, provide information on
the progress and challenges relating to the
implementation of these measures.
› Has the State enacted laws to protect women
from coercive and forced treatment (such as
forced and coerced sterilisation)? If so, provide
information on the progress and challenges
relating to the implementation of these laws.
12. Specific questions relating to the protection of
children under Article 18(3) of the African Charter
and the African Children’s Charter.
›
Has the State enacted laws, regulations or
programmes protecting and promoting the
rights of children and young people to access
HIV and other health-care services? If so,
provide information on the progress and
challenges relating to the implementation of
these laws, regulations and programmes.
› Has the State taken measures to guarantee access
to appropriate services without discrimination?
If so, provide information on the progress and
challenges relating to the implementation of
these measures.
p. 101
Report on the Study of the African Commission on Human and Peoples’ Rights
› Has the State enacted age of consent laws to
facilitate access to sexual and reproductive health
services for adolescents and young people? If
so, provide information on the progress and
challenges relating to the implementation of
these laws.
› Does the State have policies and programmes to
ensure the protection of children and adolescents
(including orphans and vulnerable children)
and to support their access to HIV services?
If so, provide information on the progress and
challenges relating to the implementation of
these policies and programmes.
› Does the State have policies and programmes to
ensure the protection of young key populations
and to support their access to HIV services? If
so, provide information on the progress and
challenges relating to the implementation of
these policies and programmes.
p. 102
13.
Specific questions relating to the measures for
the protection of older persons and persons with
disabilities under Article 18(4) the African Charter.
›
Has the State adopted laws, regulations or
programmes that protect and promote the rights
of older persons and persons with disabilities
to access HIV and other health-care services?
If so, provide information on the progress and
challenges relating to the implementation of
these laws, regulations and programmes.
›
Has the State taken measures to guarantee
that older persons and persons with disabilities
can access appropriate services without
discrimination? If so, provide information
on the progress and challenges relating to the
implementation of these measures.
› Does the State have policies and programmes
to protect and support access to HIV services
for older persons and persons with disabilities?
If so, provide information on the progress and
challenges relating to the implementation of
these policies and programmes.
Report on the Study of the African Commission on Human and Peoples’ Rights
p. 103
HIV, the Law and Human Rights in the African Human
Rights System: Key Challenges and Opportunities for
Rights-Based Responses
Report on the Study of the African Commission on
Human and Peoples’ Rights
AFRICAN UNION
UNION AFRICAINE
UNIÃO AFRICANA
AFRICAN COMMISSION ON
HUMAN & PEOPLES’ RIGHTS
Commission Africaine des Droits de
l’Homme & des Peuples
No. 31 Bijilo Annex Lay-Out, Kombo North District, Western Region, P.O. Box
673, Banjul, The Gambia Tel: (220) 441 05 05 /441 05 06 Fax: (220) 441 05 04
E-mail: au-banjul@africa-union.org; Web: www.achpr.org