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Accountability and Redress for Discrimination in Healthcare in Botswana, Malawi and Zambia

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Accountability and redress for discrimination in healthcare in Botswana, Malawi and Zambia SOUTHERN AFRICA LITIGATION CENTRE Accountability and redress for discrimination in healthcare in Botswana, Malawi and Zambia August 2016 SALC REPORT Accountability and redress for discrimination in healthcare in Botswana, Malawi and Zambia © 2016 Southern Africa Litigation Centre ISBN Print: 978-0-620-72928-4 ISBN Digital: 978-0-60-72930-7 About the Southern Africa Litigation Centre The Southern Africa Litigation Centre (SALC), established in 2005, aims to provide support – both technical and financial – to human rights and public interest initiatives undertaken by domestic lawyers in southern Africa. SALC works in Angola, Botswana, Democratic Republic of Congo, Lesotho, Malawi, Mozambique, Namibia, Swaziland, Zambia and Zimbabwe. Its model is to work in conjunction with domestic lawyers in each jurisdiction who are litigating public interest cases involving human rights or the rule of law. SALC supports these lawyers in a variety of ways, as appropriate, including providing legal research and drafting, training and mentoring, and monetary support. SALC’s objectives include the provision of training and the facilitation of legal networks within the region. Authorship and acknowledgement This report was researched and written by Annabel Raw, Health Rights Lawyer at SALC, with data sourced from consultants Chipo Nkhata, Monica Tabengwa and Ketsile Molokomme, and from the Botswana Council for the Disabled (Dorcas Taukobong), the Centre for Human Rights Education, Advice and Assistance (Victor Mhango and Chikondi Chijozi Ngwira), the Coalition of Women Living with HIV and AIDS, Malawi (Annie Banda), the Centre for the Development of People, Malawi (Victor Gama and Gift Trapence), Disability Rights Watch (Wamundila Waliuya and Bruce Chooma), Friends of Rainka (Henry Muzawandile), the International Coalition of Women, Zambia (Clementine Mumba), Lesbian Gays and Bisexuals of Botswana (Bradley Fortuin), Sisonke Botswana (Tosh Legoreng), and Transbantu Zambia (Sean Reggee). The report was reviewed and edited by Anneke Meerkotter, Litigation Director at SALC, and reviewed by Nyasha Chingore-Munazvo (SALC’s Sexual and Reproductive Health Rights Lawyer). Legal verification was provided by Lesego Nswahu Nchunga, Khumbo Bonzoe Soko, and Brian James Mwanza. Proofreading and editing was done by David A. Barraclough, Jessica Oluoch (SALC fellow) and MacKennan Graziano (SALC intern). Design by Limeblue Design. We gratefully acknowledge the assistance of all research respondents who shared their views and experiences. This research was made possible through the generous support of the Open Society Initiative for Southern Africa (OSISA). Southern Africa Litigation Centre Second Floor, President Place, 1 Hood Avenue, Rosebank, Johannesburg, South Africa, 2196 e-mail: [email protected], tel: +27 (0) 10 596 8538 http://www.southernafricalitigationcentre.org, twitter: @follow_SALC For hard copies of the report, please contact the Southern Africa Litigation Centre. Electronic copies of this report can be found at: www.southernafricalitigationcentre.org. Table of contents Acronyms and abbreviations vii Executive summary 1 Research findings 2 Key recommendations 3 1. Introduction 4 Background and purpose of the research 4 Methodology 4 Limitations 5 Structure of the report 6 2. Context 8 Botswana 8 Malawi 10 Zambia 11 3. Analytical framework 13 What is the meaning of “stigma and discrimination”? 13 Effects of stigma and discrimination 17 The role of mechanisms for accountability and redress 18 4. Domestic protections against stigma and discrimination: Legal, policy and ethical standards 24 Introduction 24 Botswana 24 Malawi 30 Zambia 38 A brief overview of the criminal laws relating to sex workers and LGBT persons 43 Conclusion 46 5. Mechanisms for accountability and redress 47 Introduction 47 Botswana 48 Malawi 59 Zambia 71 Conclusion 80 Southern Africa Litigation Centre Table of contents (continued) 6. Experiences of stigma and discrimination in healthcare 83 Introduction 83 Sex workers 84 Lesbian, gay, bisexual and transgender persons 95 Women living with HIV 104 Persons with disabilities 110 Poverty and the rural/urban divide 119 Perceptions of discriminatory behaviour: Complaints mechanisms, NGOs, and CBOs’ perspectives 122 Conclusion 126 7. Strengthening accountability and redress 127 Introduction 127 Barriers to accountability and access to redress 127 Strategies for change 129 8. Recommendations 134 Legislative reform 134 Policy reform 134 Development of ethical standards and guidelines 135 Training of healthcare workers 135 Improve the availability, effectiveness and sufficiency of complaints bodies 135 Capacity-building and education for healthcare users and key stakeholders 136 Specialised health services 136 Further research 136 Annexure one: Focus-group discussions’ methodology 137 Annexure two: NGO and CBO questionnaires and interviews 139 Annexure three: Key informant questionnaires 144 Acronyms and abbreviations AIDS Acquired Immunodeficiency Syndrome ART Anti-retroviral treatment BHPC Botswana Health Professions Council CBO Community-based organisation CEDAW Convention on the Elimination of All Forms of Discrimination against Women CESCR United Nations Committee on Economic, Social and Cultural Rights COHSASA Council for Health Service Accreditation of Southern Africa CRC Convention on the Rights of the Child CRPD Convention on the Rights of Persons with Disabilities EHP Essential Health Package GNCZ General Nurses Council of Zambia HCAC Healthcare advisory committee HIV Human immunodeficiency virus HPCZ Health Professions Council of Zambia HRCZ Human Rights Commission of Zambia ICESCR International Covenant on Economic, Social and Cultural Rights ICCPR International Covenant on Civil and Political Rights LEGABIBO Lesbians, Gays and Bisexuals of Botswana LGBT Lesbian, gay, bisexual, and transgender MCM Medical Council of Malawi MHRC Malawi Human Rights Commission Accountability and Redress for Discrimination in Healthcare in Botswana, Malawi and Zambia • vii ACRONYMSSouthern AND Africa ABBREVIATIONS Litigation Centre NASF National AIDS Strategic Framework, Zambia NGO Non-governmental organisation NMCB Nursing and Midwifery Council of Botswana NMCM Nurses and Midwives Council of Malawi NONM National Organisation of Nurses and Midwives of Malawi NORAD Norwegian Agency for Development and Cooperation SALC Southern Africa Litigation Centre STI Sexually transmitted infection PEP Post-exposure prophylaxis to prevent HIV PHRCZ Permanent Human Rights Commission of Zambia UDHR Universal Declaration of Human Rights UN GA United Nations General Assembly UNAIDS Joint United Nations Programme on HIV/AIDS UNDP United Nations Development Programme VCT Voluntary counselling and testing VHC Village health committee WHO World Health Organisation viii • Accountability and Redress for Discrimination in Healthcare in Botswana, Malawi and Zambia EXECUTIVE SUMMARY Executive summary Stigma and discrimination violate human rights and are barriers to HIV prevention and treatment. This report is concerned with the availability, effectiveness and sufficiency of systems providing accountability and redress for persons who experience discrimination in healthcare settings. The report focuses on the experiences of sex workers, lesbian, gay, bisexual and transgender (LGBT) persons, women living with HIV, and persons with disabilities in Botswana, Malawi and Zambia. Accountability and Redress for Discrimination in Healthcare in Botswana, Malawi and Zambia • 1 Southern Africa Litigation Centre Research findings Legal protections and policy commitments in Botswana, Malawi and Zambia prohibit discrimination in broad terms and emphasise commitments to equitable access to quality healthcare, despite not providing for many explicit protections for key populations and vulnerable populations. It is not a crime to be a sex worker in Botswana, Malawi or Zambia, and LGBT persons are not criminalised in themselves – even if certain same-sex sexual acts are criminalised in these countries. Healthcare workers are ethically and legally bound not to discriminate unfairly against healthcare users and need to respect their inherent human dignity. Anecdotal accounts from key populations and vulnerable populations indicate serious and varied experiences of discrimination in healthcare in Botswana, Malawi and Zambia, based on a number of grounds. These include health and HIV-status, gender, sexual orientation, disability, socio-economic status, occupation, and rural location. Conduct described as discriminatory by healthcare workers and institutions includes: • Treatment denial. • Abusive language. • Failure to properly examine healthcare users before providing treatment. • Sexual coercion and abuse. • Physical abuse such as slapping and hitting. • Failure to observe healthcare users’ confidentiality, including health-status confidentiality and confidentiality relating to healthcare users’ sexual orientation, gender identity, and occupation. • Failure to conduct proper informed consent procedures. • Failure to provide reasonable accommodation for persons with disabilities. • Denial of access to sexually-transmitted infection (STI) and HIV testing, counselling and treatment, in the absence of (heterosexual) sexual partners. • Blaming healthcare users for their health status. • Segregation and the use of identifying practices for people living with HIV. • Failure to accommodate the particular healthcare
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