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” sly@wlsazim.co.zw

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

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 2003-2007 The Maseru declaration Beijing platform for action ICPD The UN guidelines on HIV/AIDS

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

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

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

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

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

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

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

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

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.

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

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

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