1. The Intersection between HIV/AIDS and human rights
A Namibian and regional perspective
By Slyvia Chirawu
Zimbabwe
“ HIV/AIDS is no longer just a health issue”

2. What are human rights ?
Human rights must be understood as those rights which every individual is entitled to by virtue of being human.
Human rights are independent of acts of law
Examples include the right to life, personal liberty, protection from inhuman treatment, protection from discrimination, freedom of expression, assembly and association
Early approaches to HIV/AIDS defined it as a health science problem-paradigm shift- health is more than the absence of disease and infirmity but the complete physical , mental and social wellbeing

3. Relationship between HIV/AIDS and human rights
Correlation between HIV/AIDS and human rights is found in a number of international and regional instruments which include:
International covenant on civil and political rights
International covenant on economic , social and cultural rights
CEDAW
Convention on the rights of the child
Convention against torture
African charter on human and people’s rights
Optional protocol to the African charter on human and people’s rights on the rights of women in Africa
Millennium development goals
Abuja declaration
SADC gender declaration and its addendum
SADC HIV/AIDS strategic framework and plan of action
The Maseru declaration
Beijing platform for action
ICPD
The UN guidelines on HIV/AIDS

4. The human rights standards and HIV/AIDS
Some of the standards related to human rights and HIV/AIDS include:
Right to non-discrimination and equal protection before the law- people living with HIV should not face discrimination in all spheres of life
Liberty and security- so as not to be isolated and put in quarantine or segregated in any form
Right to life- regardless of one’s status everyone has a right to live
Right to privacy- protection against mandatory testing and confidentiality
Freedom of association and assembly- no denial of admission to organizations or places because of HIV status
Right to seek and be given information on HIV/AIDS
Right to work – right to be recruited and not fired due to one’s status
Right to health- access to treatment, health care and prevention
Right to education- no denial of access to education because of HIV status
THE REALITY IS THAT PEOPLE LIVING WITH HIV/AIDS SUFFER DISCRIMINATION AND ARE NOT ENJOYING THEIR HUMAN RIGHTS

5. HIV/AIDS in SADC
Namibia lies in sub Saharan Africa which is the epicentre of HIV/AIDS
23 million adults are infected and 57% are women – disproportionate effect on women
SADC has the four countries worst affected- Botswana, Zimbabwe, South Africa, Swaziland
First AIDS case in Namibia – 1986
Estimated 22.5% of adult population infected

6. HIV/AIDS and Human rights in Namibia and the region
The situation in Namibia mirrors that of the challenges faced in the region on HIV/AIDS and human rights
A mixture of Law, Civil law, Roman Dutch and Customary law
Legal pluralism pose challenges in addressing HIV/AIDS
Lack of specific HIV/AIDS treaties within the international legal system – more by inference
Namibia one of the few SADC countries where treaties are self executing- In Zimbabwe international instruments have to be ratified by Parliament AND domesticated to have any effect
Some countries have HIV/AIDS policies e.g. Botswana, Swaziland, Zambia and Zimbabwe but some policies have no reference to human rights . Policies related to HIV/AIDS – e.g. Namibia- Guidelines to the clinical management of HIV/AIDS, University of Namibia HIV/AIDS policy, short term plan for the prevention and control of HIV/AIDS – policies not reduced to legislation

7. continued
Litigation confined to HIV in the workplace e.g. Nanditume vs. Minister of Defence – Namibia , Zimbabwe SI 202/98 – outlaws discrimination in the workplace on the basis of HIV/AIDS
HIV/AIDS legislation is confined to criminal law – criminalization of wilful transmission and marital rape – harsh penalties for wilful transmission of HIV/AIDS
Lack of specific reference to HIV/AIDS in constitutions e.g. equality and non discrimination clause in Namibia’s constitution. In Zimbabwe all are equal before the law but this is different in practice . Interpretation is left to the courts

8. continued
No social welfare and security for PLWA- Namibia – social assistance in terms of a disability grant – Same for South Africa
Right to health – South African Constitution but not Namibia, Zimbabwe. No access to ARVs and they are out of reach for many
Zimbabwe declared HIV/AIDS a state of emergency and pharmaceutical companies can produce generic ARVs.
3 by 5 campaign not making headway
No PEP in the law but in policies

9. continued
HIV/AIDS not notifiable in terms of Public health legislation
Existence of cultural practices that fuel the spread of HIV/AIDS – wife inheritance, forced intercourse, virginity testing, early marriage, pledging of young girls, initiation sex, polygamy- women worst affected
Other gender based discrimination exists in domestic violence- no legislation to deal with domestic violence

10. continued Homosexuality illegal except in South Africa
LGBT community faces discrimination e.g. Zimbabwe – GALZ
Lesbians suffer double jeopardy- totally ignored
Prostitution is illegal – sex workers mostly women suffer discrimination
Prisoners face discrimination

11. Continued
Confidentiality not protected by constitutions but other legislation e.g. in Zimbabwe – Medical practitioners regulations protect confidentiality but are not HIV/AIDS specific
Shared confidentiality in policies but not legislation and efficacy of shared confidentiality not tested
ABCD strategy has failed
Poverty in the SADC countries fuels the epidemic

12. Why we need a human rights based approach to fight HIV/AIDS
The situation in Namibia and the region paints a grave situation of HIV and human rights. There is a clear need to use the rights based approach.
HIV/AIDS affects everyone . It is not a matter of affected and infected.
Too much discretion has been left to policy makers to set out the needs of the infected and affected.

13. Continued
Human rights framework provides a “ check list” of all areas one needs to focus on in order to prevent the further spread of HIV , to provide treatment to people suffering from AIDS and to protect their place in society
Human rights standards make law and policy makers accountable for their actions
Human rights standards enable advocacy groups to monitor and evaluate the extent to which the state is fulfilling its obligations

14. continued
HIV/AIDS needs to be moved into the domain of demands so that the needs can be located in rights that can be demanded by those infected and affected
A rights based approach means locating the needs of those infected an affected by HIV /AIDS in human rights that can be claimed and asserted whatever views maybe expressed by the government or community
Human rights entail the identification of mechanisms in existing laws and policies to deal with shortcomings and limitations
Strength of the human rights based approach is that its primary tool in the fight against HIV/AIDS is something that is inherent in all individuals and belonging to all individuals – human rights

15. Suggestions for reform
Adoption of appropriate legislative , budgetary and judicial reforms to fight HIV/AIDS e.g. HIV/specific legislation on discrimination, decriminalizing commercial sex work
Human rights framework to be included in all policies
Development of specific policies on issues such as VCT, prisoners
Policies and strategic frameworks should have M and E in built in them
Social assistance to vulnerable groups- orphans, women and children
Political will
MDGs- poverty
Multisectoral approach
Domestication of international law instruments
Outlawing customary practices that fuel the pandemic
Improve and enhance protection of women e.g. inheritance law, domestic violence legislation
Provision of generic drugs