Many an African country’s Constitutions claim that everyone is equal before the law. But in the face of HIV, some African countries use the law to discriminate against their own citizens. At least 18 countries in sub-Saharan Africa have laws that criminalise the transmission of HIV. In addition, some countries have laws or are tabling laws that criminalise same sex relations, drug use and sex work. A case in point is Uganda, which has attracted criticism from the international community with its proposed ‘Anti-Homosexuality Bill’. The Bill calls for the life imprisonment of people involved in homosexual acts and the death penalty for HIV-positive people who commit what the Bill calls ‘aggravated homosexuality’. This has raised concerns that such laws will hamper national HIV prevention and treatment efforts to reach marginalized groups. In response to this, the United Nations’ Joint Programme on HIV/AIDS (UNAIDS) has now started a series of consultative meetings with judges across Africa to sensitise them about how they can use the law to promote human rights and to protect high-risk groups such as homosexuals, men in prisons, sex workers and injecting drug users from punitive laws.
‘In many countries we have either existing law that could be protective of HIV issues or we have very specific law that is either protective or punitive. In both cases we need the judges to take that law and ensure that it protects human rights in the context of HIV and that it reduces discrimination, reduces vulnerability to HIV infection and to the impact. But we don’t have enough judgments of this sort of progressive jurisprudence that would protect people in the context of HIV’, says Susan Timberlake, Human Rights and Law senior advisor for UNAIDS.
Traditionally, UNAIDS has worked with governments and parliaments in various countries to encourage them to employ scientifically-backed responses to HIV/AIDS. Now Timberlake says it’s crucial to target judges.
‘Over the years of the epidemic we realise that the law and the legal environment are critical. So, this is all about supporting the judiciary to be leaders in the response against HIV, both in the courts when they are making judgments and outside the courts when they are community leaders’, she says.
The Chief Justice of Ghana, Georgina T. Wood admits that judges don’t have the necessary tools to enable them to join the response against AIDS.
‘There is an urgent need for the judiciary and its partner institutions to be better educated on a broad spectrum of issues connected with the HIV pandemic. This is crucial’¦ vital to better position us to interrogate complaints’, Wood says.
‘They should also learn some of the commitments that the executive branch has made about what the role of the law should be to protect people living with HIV, to protect women against violence, to ensure that children have access to treatment, to ensure that vulnerable groups are not discriminated against and criminalized. The judges, potentially, can be incredibly powerful community leaders and national leaders if they are willing and able to speak out’, adds Timberlake.
But why is it important to protect the rights of people living with HIV/AIDS?
‘If we don’t protect the rights of people living with HIV, then people living with HIV will go underground and they will not seek services for HIV testing, for counseling, for treatment and it will be very difficult for us to control the epidemic’, says Mark Heywood, head of South Africa’s AIDS Law Project.