INTERNATIONAL HUMAN RIGHTS DAY 2016, 10 DECEMBER 2016:
Windhoek, Namibia, 09 December 2016: On the eve of International Human Rights Day 2016, the AIDS and Rights Alliance for Southern Africa (ARASA), a partnership of 106 organisations working in 18 countries in southern and east Africa, calls on governments to curb the increasing trend of enacting and enforcing incoherent, ineffective laws that undermine human rights, including the right to health, and threaten to derail the progress made to end the twin epidemics of HIV and TB.
ARASA warns that the commitments made towards eliminating HIV and TB – including the 2016 Political Declaration on HIV and AIDS, the Sustainable Development Goals and the End TB strategy – stand on shaky foundations, unless they are supported by a human rights-based approach, including strong political will and coherence between law and science.
Although there has been some improvement in ensuring access to treatment and care for people living with HIV and TB, there is a still a long way to go in terms of aligning HIV, TB and human rights.
“We cannot talk about the 90-90-90 targets without addressing the endemic human rights barriers, underpinned by the criminalisation of key population groups, including sex workers, people who use drugs, lesbian, gay, bisexual, transgender and intersex (LGBTI) people, people living with disabilities, and women. In addition, the current proliferation of HIV-specific criminal laws, which unjustly target people living with a treatable disease, are eroding the gains made in the HIV and TB responses,” said Michaela Clayton, Director of the ARASA.
The Advancing HIV Justice 2 report, published in June 2016 by the HIV Justice Worldwide partnership, of which ARASA is a member, highlights that, since 2000, 30 sub-Saharan African countries have now enacted overly broad laws related to the criminalisation of HIV transmission, exposure and non-disclosure.The Report also notes that the rise of reported prosecutions in Africa (in Botswana, South Africa, Uganda, and especially Zimbabwe), along with the continuing, growing number of HIV criminalisation laws on this continent, is especially alarming.
“It’s ironic that HIV criminalisation began in sub-Saharan Africa just as the commitment to HIV treatment scale-up was envisioned at the Durban 2000 AIDS Conference,” says the report’s author, Edwin J Bernard, Global Co-ordinator of the HIV Justice Network. “These laws were not based on evidence but political expediency – the vision of ‘ending AIDS’ is totally incompatible with criminalising people living with HIV.”
“In the course of the Southern Africal Litigation Centre’s work, we continue to observe significant stigma and discrimination against people living with HIV and key populations, including through inappropriate applications of criminal laws, and unhealthy, inhumane conditions of detention in southern Africa. An effective HIV and TB-response demands that governments urgently reform legal environments that enable these abuses, and advance meaningful access to justice and accountability for victims of rights violations,” said Kaajal Ramjathan-Keogh, Executive Director of the Southern Africa Litigation Centre (SALC).
Advocates around the world are working tirelessly to ensure that the criminal law’s approach to people living with HIV is consistent with up-to-date science, as well as key legal and human rights principles. But, unless investments are matched with clear programmatic articulation of human rights based approaches – essential for people living with HIV and TB and members of key and other vulnerable populations groups who currently have little or no access HIV and TB prevention, treatment, care, and support services – then the current rhetoric about the end of HIV and reduction of TB prevalence rates, will remain purely academic.
“Disclosure of HIV happens with support, with counselling and with an enablement. This is not the reality in the places where an average person seeks health services. HIV criminalisation goes against HIV prevention”, said Dora Kiconco Musinguzi, The Executive Director of the Uganda Network on Law, Ethics and HIV/AIDS (UGANET),
who have been petitioning against the Ugandan government for the amendment of the potentially harmful provisions of the HIV/AIDS control and Prevention Act 2015 which includes allowing for the disclosure of a person’s HIV-positive status, either forcefully, at the discretion of a health worker or at a’ concerned person’s’ request.
The evidence is in and the future is looking bleak: ARASA’s 2016 HIV, TB and Human Rights in Southern and East Africa (SEA) Report, which conducts scans of the legal and regulatory framework for responding to HIV, TB and sexual reproductive health (SRH) in SEA to determine whether laws, regulations and policies protect and promote the rights of all people, including key populations, continues to show that while these laws are meant to protect and promote the rights of all people, they are instead used against the most vulnerable people in our societies, not only moving them away from essential health services, but criminalising their rights to health and life.
This, while shocking figures released by the World Health Organisation in October 2016, show an estimated 10.4 million new TB cases and 1.8 million TB deaths in 2015, are a case in point. This is a 20% revision upwards from last year’s figures, showing that the TB epidemic is a bigger problem than we thought. There is no TB elimination scenario that is realistic without improved prevention.
Our conventional approaches to dealing with TB need to be revisited. As eloquently stated by Honourable Michael Kirby, a Member of the United Nations Secretary-General’s High–Level Panel on Access to Essential Medicines, in his Ten commandments for TB, TB requires rights-based approaches, and a revisiting of the ineffective hostile, punitive approaches, involuntary treatment and incarceration that have been levelled against people living with TB.
ARASA recommends that civil society and governments should work together to:
1. Advocate to expand access to legal services for people with HIV and key populations and provide information about available legal services.
2. Remove all overly broad and HIV-specific laws that criminalise HIV transmission, exposure and non-disclosure and criminalisation laws related to sex work, people who use drugs and gender identity for LGBTI.
3. Expand HIV programming that is acceptable and accessible for LGBTI people, through LGBTI-friendly services.
4. Advocate for legislation that explicitly criminalises marital rape and set a minimum age for marriage and access to Post Exposure Prophylaxis for Gender-Based Violence (GBV) survivors.
5. Repeal laws that undermine or prohibit distribution of condoms and lubricants in prisons, including laws that criminalise sex between men in prisons