RIGHTS-AFRICA: Judges Address How Law Can Assist HIV Response

Saaleha Bamjee-Mayet

JOHANNESBURG, Dec 11 2009 (IPS) – In Ghana, because the stigmatisation against gay men is so great, many are forced to have sexual relationships with women to escape prejudice and homophobic violence.
At the same time the Ghana Aids Commission reports that the rate of HIV infection and transmission is increasing rapidly among homosexuals because the discrimination they face has become the root cause of their inability to access treatment.

In Ghana, under the law, it is illegal for a man to have sexual intercourse with another man. Homosexuals are severely stigmatised, and this is one of the reasons why human rights groups are making moves to decriminalise homosexuality and open up the channels of treatment, said Georgina Wood, the Chief Justice of the Republic of Ghana.

She was addressing the HIV and Law in the 21st century: Meeting of African Jurists in Rosebank, Johannesburg on December 11. The situation in Ghana, where the law makes it difficult for gay men to access anti-retroviral treatment, is just one of the topics to be discussed at the meeting.

Thirty eminent jurists from across Africa will be looking at how national law and law enforcement has not always protected people most vulnerable to HIV.

Co-hosted by the International Association of Women Judges, International Commission of Jurists, the Joint United Nations Programme on HIV/AIDS (UNAID) and the United Nations Development Programme, the meeting will also highlight the role of judiciary in the response to HIV/AIDS.
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Issues such as the criminalisation of HIV transmission and the treatment of marginalised groups such as homosexuals, sex-workers and prisoners will be discussed with the possibility of the consideration of a statement that can guide courts, governments, civil society, business and others with regards to HIV/AIDS, law and human rights.

The evidence is anecdotal. They (homosexuals) live in such constant fear of discovery and exposure to homophobic violence that they present a façade of heterosexuality and maintain female partners on the side. This places the women at an increased risk of HIV infection, said Wood.

Wood presented a background on HIV/AIDS and Ghanaian Law and said that it was not until 2001 that a policy or structure to respond to the virus was introduced even though HIV first emerged within the population in 1984.

In April of 2001, with support from UNAID, we developed a mainstreaming policy document which embodied a five year plan of action to combat the spreading of the disease. At the time, experts put a figure of 200 to new HIV infections daily. That was truly scary for Ghana as a developing nation. Despite our progress since then, HIV/AIDS continues to constitute a threat to our social stability.

With the exception of the act setting up the Ghana AIDS commission, the country does not have specific laws related to HIV/AIDS.

Wood said that HIV/AIDS-specific legislation would provide the avenue for easy reference, clarity and certainty. The hope is that people living with HIV/AIDS can take these laws as recourse, such as their right to privacy in response to HIV/AIDS status disclosure.

Over the years, since the emergence of the pandemic, some of the courts, especially the lower courts have deemed it prudent in cases of defilement, rape, and other acts of sexual violence, for both victim and alleged perpetrator to undergo obligatory HIV/AIDS testing. Ghana came under severe criticism for violating the rights to privacy and bodily integrity, she said. However, beyond the public outcry, no one has yet contested the constitutionality of this practice by the judiciary.

She said an important lesson for the judiciary, and all of its partner institutions, was for them to be better educated about the broad range of issues around HIV/AIDS. She said this is vital if they are to interrogate the claims that are brought to them, especially complaints that relate to women and children.

Laws which are inimical to persons living with HIV/AIDS must be removed to make way for friendlier laws, she said.

Speaking to IPS, South African constitutional court judge Justice Edwin Cameron said the criminalisation of the transmission of HIV was not an effective measure to deal with the virus spread.

The criminalisation of transmission will lead to further stigmatisation and do nothing but push people who need treatment further underground.

He said the only way to devise or implement laws that prevent transmission yet allow all access to treatment, is to ensure the protection of human rights. The stage has been set here for the jurists to be part of a movement for change, Cameron said.

He will present a paper on criminalising HIV on the second day of the meeting in his capacity as a judge of the Constitutional Court of South Africa as well as a person living with HIV/AIDS. Cameron has been on anti-retrovirals for the past 12 years.

Minister of justice and constitutional development, Jeff Radebe, emphasised that the issues of prejudice against people living with HIV/AIDS is a challenge worldwide. Our role is therefore not to pass judgment but acknowledge that those infected and affected by the virus cannot be treated as some cases of some behavioural basket.

He said jurists are perceived by society as implementers of law and therefore seen as rigid with regard to new developments. However there are none better placed than jurists who are able to understand the limitations of prevailing legal frameworks and accordingly the basis of shifting the frontiers, Radebe said.

Executive director of the AIDS Law Project, Mark Heywood, read aloud from letters he had received from people which he saw as representative of problems experienced around Africa, as well ones that show the pain and indignity individuals suffered from discrimination.

As the voice of civil society, the stories Heywood told were emotionally charged. They ranged from a woman who was constantly denied access to give her husband ARVs while he was in prison to another whose sister was refused entry as a recruit to the Durban police because she disclosed her HIV status. His last letter dealt with a mother who was being charged by her baby s father for attempted murder as he believes she transmitted the virus to the child through breastfeeding.

These are not unique scenarios to South Africa. There is much misunderstanding and fear around the HIV virus. If we don t protect the rights of people living with HIV/AIDS, they will simply go underground and not seek out treatment or services, Heywood said.

This is what Justice Michael Kirby (former chairman of the Australian Law Reform Commission and member of the World Health Organisation Global Commission on AIDS) referred to as the paradox of AIDS. Normally we try to protect the uninfected from the infected; the paradox is that we have to protect the infected to protect the uninfected.

It is 25 years into the epidemic and those who are at the most at risk of infection are not at the table of HIV/AIDS prevention because they remain criminalised, marginalised and fearful to the legal responses towards their lifestyles and their work, Heywood said, referring to homosexuals and sex-workers.

Heywood outlined the pitfalls people faced when seeking legal recourse through courts such as accessibility related to gender, class, geography or a combination of all three. He also mentioned how people with little or poor education did not understand court procedures well enough and that the jurists should take these factors into cognition as they go about their proceedings.

The rest of the proceedings will continue behind closed doors and will include jurists, civil society representatives, people living with HIV/AIDS and co-sponsor representatives.