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9 th March 2010 Nana Oye Lithur Antonia Clarke Betty Akumatey Wendy Abbey Emmanuel Howard.

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Presentation on theme: "9 th March 2010 Nana Oye Lithur Antonia Clarke Betty Akumatey Wendy Abbey Emmanuel Howard."— Presentation transcript:

1 9 th March 2010 Nana Oye Lithur Antonia Clarke Betty Akumatey Wendy Abbey Emmanuel Howard

2 Legislative Audit Purpose: to identify and assess the content and implementation of HIV and AIDs related laws in Ghana and assess compliance with intl. law and the extent to which socio-cultural norms enhances HIV vulnerability Two substantive parts: (i)Chapters relating to specific areas of legal governance; and (ii)Assessment of Institutions mandated to protect human rights (iii)Chronology of laws and policies

3 The Legislative Audit process Identified laws, desktop research of current laws and policies, qualitative analysis for scope and efficacy of implementation Conducted interviews with state, civil society implementators and reviewed Annual Reports from 2007 of key institutions Case studies collected from primary and secondary sources including interviews with various stakeholders and FGDs with MARPS and traditional authorities. Secondary sources included media releases and newspaper reports For institutional assessment,28 insts. targeted, questionnaires were administered to 16 institutions and interviews conducted with 5 institutions from the justice, civil society, government, faith based orgs. Pre-validation meeting with stakeholders to test research tools Limitations: (i)Time and resource constraints, (ii)Obtaining information on implementation of laws

4 Legal Audit Chapters

5 Legislative Audit Chapter content Anti-discrimination Privacy and Confidentiality Public Health Gender Prison/ Correctional Law Criminalised PLHIV Customary tradnal Practices Children and OVCs Employment Sexual and Transmission Offences Regulation of Healthcare Professionals and Ethical Research

6 Positive Aspects of normative framework: General Protection (Art. 15, 17, 29 Constitution, Persons with Disability Act) National HIV/AIDS Policy: objectives include reducing S&D, respecting rights of PLHIV Workplace and healthcare policies prohibit S&D General law mandates representative complaints, speedy redress, free legal assistance, confidentiality of proceedings (HCCPR, CHRAJ Act) General protection of human rights with power to investigate (CHRAJ)

7 Gaps: No protection from S&D on basis of profession (e.g. CSW) Pre-employment screening for HIV prohibited but still occurs (Police Service, Armed Forces) Potential for S&D under Infectious Diseases Ordinance and Immigration Act eg. Right to abode status of foreign nationals revoked by HCt.,if persons activities prejudicial to public health, restrictions to personal liberty for PLHIVs under art. 14 of 1992 constitution Criminalisation of particular groups (e.g. MSM and CSWs) No specific laws regarding PLHIV, no guidelines from CHRAJ or Legal Aid to facilitate free legal assistance for PLHIVs

8 Positive Aspects: Transfer of HIV is not a unique offence under Criminal Offences Act (incorporated as harm, reducing S&D) Intentional, willful transfer of HIV by a sexual partner is a form of domestic violence (Domestic Violence Act) Several provisions in place to protect against exploitation (anti-child labour and human trafficking laws)

9 Gaps: No legal provisions on transmission of HIV and unclear law regarding punishment for willful and negligent transmission of HIV Unclear reconciliation between willful and consensual transmission (e.g. between spouses and discordant spouses, an issue for HIV) Enhanced vulnerability of HIV partner due to Matrimonial Causes Act, marriage null and void on basis of HIV Connection between exploitation, trafficking and HIV not researched, no legal provisions No law or policy mandating victims of sexual violence who may be exposed to HIV infection to be treated with PEP, no guidelines by GHS on how healthcare facilities should treat rape and sexual abuse victims, protocol for gender-based violence?

10 Positive Aspects: Confidential communications protected (Constitution, Evidence Decree) Media and healthcare law/policies uphold privacy, ref. to Data protection Act, Electronic Comm. Act,2008 Natl. Comm. Reg.2003, LI. 1719(categories of persons who may receive info and cannot disclose clearly outlined by law) Prohibition on disclosure to sexual partner by healthcare professionals covered by law but Evidence Decree, GHS Code of Ethics conflicts with HIV Policy on disclosure Privacy in general proceedings (HCCPR, CHRAJ Act) Access to confidential sexual and reproductive health services (National Guidelines on HIV Counseling and National Reproductive Health Policy)

11 Gaps: Partners who are cohabiting at risk of breach of privacy, they do not have the same confidentiality privileges implications for protection from HIV infection No explicit guidelines on the media respecting right to privacy No sanctions for health workers who fail to respect privacy No protection on the basis of sexual orientation, Natl. HIV/AIDs Policy does not identify MSM as a vulnerable group. Lack of public awareness on privacy provisions Lack of HIV/AIDS specific law

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13 Positive Aspects: It is not illegal to be a prostitute in Ghana and criminals are granted necessities of health and life There is no discrimination amongst victims of sex offences from specific groups in the Criminal Offences Act MOH facilitates distribution of condoms, there is no law that either provides for or prevents condom distribution Presidential Pardon is available for compassionate release of prisoners Under Narcotics Act an accused can be granted a lighter sentence where special circumstances exist but otherwise there is no diversion to healthcare sector under Criminal Offences Act Mental Health Decree provides for rehabilitation of addicted IDUs

14 Gaps: Criminalisation of CSW,MSM,IDUs discourages them from seeking treatment Sentencing administered at judges discretion and no diversion to healthcare sector No clear referral of convicted IDUs for treatment Inadequate research and information on IDUs and no needle exchange programme Homosexuality criminalised (Criminal Offences Act) and heavily stigmatised No law to ensure access to PEP GACs NSF II pledge to protect rights of MARPs not fully fulfilled

15 Positive Aspects: Informal access to education in prisons Draft HIV/AIDS Policy for Prisons in place Prison Policy mandates counselling and provision of information on HIV/AIDS Availability of VCT Availability of treatment Confidentiality of status maintained by medical examiner Presidential Pardon may authorise release on compassionate grounds

16 Gaps: No supply of HIV prevention items such as condoms, bleach or clean syringes for prisoners Disclosure of status can occur unintentionally (exclusion from certain prison activities) No legal protection for prisoners who are subject to rape, sexual violence and coercion and may contract the HIV virus TB and AIDs highest causes of deaths in prisons

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18 Positive Aspects: National HIV/AIDS Policy prohibits pre-employment screening All workplaces must be clean and sanitary (Labour Act) Workers Compensation legislation could be used to provide remedies for occupational transmission of HIV Broad prohibition on unfair termination (Labour Act) Workplace Policy protects social security of HIV+ workers Provision of general information to workers (including roaming workers) No exclusion from certain professions on basis of sero-status Encouragement of private companies to develop HIV-specific workplace policies

19 Gaps: Lack of Policy implementation re: screening (e.g. Armed Forces) No employment security provisions relating to HIV status No specific laws for HIV/AIDS-related employment issues

20 Positive Aspects: Prohibition on segregation except where it is in public interest (Infectious Diseases Ordinance) Provision of information, including safe sexual practice education (Reproductive Health Strategy) Quality assurance standards for health service providers Guidelines for provision of ART Screening of blood products (National Blood Policy) National HIV/AIDS Policy mandates pre- and post- test counselling

21 Gaps: Basis of segregation in the public interest not clearly defined No general duty to provide HIV/AIDS-related information to general public No law or policy that mandates informed consent to HIV testing No formal legal instrument to govern blood donation

22 Positive Aspects: Remedies offered for breach of health professional standards Independent body for complaints (CHRAJ, MDC, NMC) Few limitations on media through censorship legislation Confidentiality of research participants ensured

23 Gaps: No legal basis to ensure scientific validity of research No legal protection for research participants There is limited knowledge about the ability to file complaints

24 Positive Aspects: Various legal and policy frameworks in place to protect children and prevent OVCs from exploitation (incl. mistreatment, defilement, trafficking) Policies in place to educate children on HIV/AIDS- related issues National policy (overseen by GAC) to treat OVCs affected by HIV and educate communities Violence against girls is criminalised and policies in place to protect them Policies to end discriminatory customary practices (e.g. forced marriage)

25 Gaps: No legal framework for protection of children affected by HIV/AIDS leads to lack of policy implementation Children are treated no differently than adults in the healthcare system No clear guidelines for PEP for child victims of sexual abuse Ineffective implementation of laws and policies to protect children from labor, child trafficking, sex offences No HIV/AIDS-specific education

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27 Positive Aspects: Several policies in place to address gender issues Policy to educate women on health-related issues Policy on PMTCT Criminalisation of abuse of women, including sexual abuse by a husband or de facto partner (Criminal Offences Act, Domestic Violence Act) Development of microfinance projects

28 Gaps: Inadequate implementation of laws to protect women Gender inequalities and problems with socio- cultural norms Need for education programs to address violence against women

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30 Need for HIV/AIDS-specific law More focus on rights of MARPs and de-criminalisation of their activities Specific law on discrimination Repeal article 14 on restrictions to personal liberty Effective monitoring of laws and policies to strengthen protection of PLHIVs and reduce vulnerability to HIV Amend laws that perpetuate discrimination against PLHIVs, eg., MCA Education and sensitisation of communities and PLHIVs on the rights of PLHIV Clarification of laws and policies relating to HIV/AIDS Legal empowerment of women

31 CHRAJ, Legal Aid Scheme, DOVVSU to facilitate free legal resource for PLs and MARPS Review policies on pre-employment screening Review policy on pre-employment screening Clarify law and policy on willful, negligent, unintentional transmission of HIV and disclosure of HIV status to co-habiting partners and spouses Provide PEP on national basis under the Ghana Health Service in collaboration with DOVVSU for victims of sexual abuse Strengthen privacy and confidentiality laws to protect rights of PLHIVs Prison Service should consider provision of condoms for prisoners Justice system must consider diversion programmes for IDUs as an option to incarceration

32 Institutional Responses

33 Conclusion

34 Is an HIV/AIDS specific law needed to ensure effective implementation of policy and protection of the rights of PLHIV? Government should use this study as a basis for legislative reform and policy development Call for greater focus on MARPS groups

35 HRAC compiled Audit with help of many people at various organisations: MDAs (MoJ, MOE, MOH, MCC, GHS, CHRAJ, NCCE, Ghana Police Service, GPS, Ghana Labour Commission, National Media Commission, GAC, LAS, DoSW, District and Juvenile Courts,GHS) NGOs (CDDG, USAID, CPEHR, Ark Foundation,WISE, World Vision Ghana) Multi-lateral Organisations (USAID, UNICEF, UNAIDS) Others (Lithur Brew Law Firm, Korle Bu Teaching Hospital, Fevers Unit)

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