By Annabel Raw
The Southern Africa Litigation Centre’s health rights programme was established in 2007 to advance human rights and the rule of law in southern Africa in relation to the HIV pandemic. Our work under this programme demonstrates the importance of human rights and the rule of law in issues of HIV and health in the region.
Southern Africa has the most severe HIV epidemic in the world. There is a close link between the denial of human rights and increased vulnerability, discrimination and stigma and the inhibition of effective responses to prevent and treat HIV. While law is not a panacea, it is a vital component of the response. Applying human rights law has the potential to protect people against policies that sacrifice human wellbeing over political rhetoric, it can be used to enforce rational, evidenced-based interventions, and to protect people living with HIV who are vulnerable to discrimination.
One of the first cases in which our health rights programme was involved was Kingaipe and Another v Attorney General in Zambia. The case concerned members of the Zambian Air Force who complained of being subjected to mandatory HIV testing without their knowledge and of being dismissed because of their HIV status. The Southern Africa Litigation Centre (SALC) worked closely with members of Zambian civil society and local lawyers in strategizing a legal challenge and in ensuring that the court had before it appropriate expert evidence. SALC worked with its partners to ensure that the litigation was met with effective advocacy and could be a platform for the empowerment of people living with HIV with knowledge of their human rights.
In 2010, the Zambian High Court held, for the first time in its history, that mandatory HIV testing violated constitutional rights, giving breadth and meaning to these rights in the context of the HIV pandemic. This precedent is an important guarantee to all in Zambia that informed consent is required when testing for HIV and that the human rights of persons living with HIV must be respected in the course of medical treatment and daily life. The court, equipped with comparative and international human rights jurisprudence, was able to articulate human rights standards in its own voice and in the Zambian context. Recent successes in Namibia and Malawi have built on this growing body of regional jurisprudence on informed consent.
A current case in which SALC is involved concerns a government policy denying foreign prisoners antiretroviral treatment in Botswana, Tapela and Another v the Attorney General and Others. SALC is working with a Botswana civil society and lawyers to challenge the policy. HIV-positive non-citizen prisoners are refused this life-saving treatment, leaving them prone to developing opportunistic infections like TB, making them more infectious to others and ultimately making them susceptible to a fatal progression of their infection.
While the matter is currently on appeal (arguments will be heard on July 23 2015), the high court held in 2014 that the policy was unlawful and unconstitutional and unjustifiably violated the prisoners’ human rights. Through the process of examining the expert evidence and thorough comparative, international and domestic legal arguments, the court was able to craft a human-rights based approach in the Botswana context that gives expression to the prisoners’ human rights. Subsequent to the judgment, foreign prisoners have sought to enforce the judgment and there is evidence of some compliance with the order.
Where states have committed themselves to human rights obligations, it remains central to the rule of law that these rights are realised in real and concrete terms for people in the region. It is often most difficult to expect that the human rights of society’s most vulnerable and politically invisible will be realised without pressure from independent actors. Civil society plays a vital role in this regard. SALC is proud to play its part, through supporting civil society and lawyers in the region, to make possible the development of domestic and regional human rights jurisprudence in the context of one of the biggest challenges the region has faced in the HIV pandemic.
Annabel Raw is a health rights lawyer at the Southern Africa Litigation Centre.