Human rights and gender in HIV-related legal frameworks
28 April 2008
In adopting the Declaration of Commitment on HIV/AIDS in 2001 at the UN General Assembly Special Session on HIV/AIDS, Governments have fully recognized the importance of protecting human rights and gender equality through appropriate legal frameworks in national responses to HIV.
The enactment of laws that incorporate the protection of human rights and gender enable those vulnerable to HIV infection to access HIV prevention and also allow those living with HIV to be free from discrimination and human rights abuses. However, insufficient attention is often paid in national responses to HIV to the reform of discriminatory law or to working with Parliaments, judges and police to ensure appropriate enforcement of law. The result is that human rights abuses in the form of discrimination, gender inequality and violence against women, and violations of confidentiality and privacy continue to increase vulnerability to HIV infection and represent a barrier to effective responses to HIV.
In recognition of these concerns, UNAIDS in collaboration with UNDP, UNICEF, UNFPA, UNIFEM, WHO, AWARE/USAID, OSIWA, ECOWAS, OHCHR and the African and Arab Parliamentarian Forum, has held two workshops one in July 2007 and one from 16 – 18 April 2008 in Dakar to assist countries to consider where they stand on developing legislative frameworks in the response to HIV and how to ensure the best possible legislation.
Although the law cannot make HIV prevention or treatment happen - only sufficient HIV programmes and services can - the law can create an environment to empower people with knowledge, social support and protection from discrimination so behaviour change and access to HIV prevention, treatment and care can happen without negative consequences.
In 2004, the African and Arab Parliamentarians Forum for Population and Development adopted the “Ndjamena Law” on the prevention, care and control of HIV. This was a flexible and adaptable legal instrument that States could use to guide their legislation development process according to their legal, social, political and cultural environment. The law contained many positive aspects, but it has also become clear that some provisions in the Ndjamena Law could be substantially improved in order to best meet two of the critical concerns in the response to AIDS: that of protecting public health and that of protecting human rights.
Participants at the April 2008 workshop represented 15 West and Central Africa countries and included parliamentarians, human rights specialists, jurists, civil society members including people living with HIV and representatives of National AIDS Councils. The meeting identified challenges, opportunities and ways to ensure the incorporation of human rights and gender issues in the adoption and amendment of HIV-related legislation.
Some of the aspects of the Ndjamena Law that were debated among the participants involved mandatory HIV testing, confidentiality or disclosure of HIV information, the criminalization of HIV transmission, and the rights of women and other vulnerable groups.
UNAIDS and other partners recommended several documents developed since the promulgation of the Ndjamena law that can be used as guidance in order to amend HIV-related legislation in accordance to international legal standards and to ensure that the language used to enact the law does not promote human rights abuses. These documents include the Political Declaration on HIV/AIDS (2006), the International Guidelines on Human Rights and HIV, Consolidated Version (2006), Taking Action against HIV, Handbook for Parliamentarians (2007) and “UNAIDS Recommendations for Alternative Language in the Ndjamena Legislation on HIV” (2008).
Participants agreed that the process of incorporating human rights and gender in HIV related legal frameworks underlines the need to develop legal measures not as tools for coercion but as instruments to empower people through respect of their human rights. Punitive or coercive legal measures exacerbate already existing HIV stigma and discrimination and drive people away from HIV prevention and treatment programmes, thus undermining the effectiveness of national responses to the epidemic.
“Protecting the rights of people living with HIV does not mean less protection for other members of the community. On the contrary, protecting the rights of people living with HIV and members of vulnerable groups promotes access to HIV prevention, care and support services which benefit the whole community and make for a more effective response to HIV,” said Dr Meskerem Grunitzky-Bekele, Director of the UNAIDS Regional Support Team for West and Central Africa.