ASSESSMENT OF LEGAL AND REGULATORY FRAMEWORK FOR HIV, AIDS AND TUBERCULOSIS FINAL REPORT FOREWORD Botswana has made significant progress in addressing the HIV epidemic. Although this Legal Environment Assessment (LEA) report has shown that progressive laws, policies and jurisprudence in Botswana has helped to safeguard the rights of all people to equality and non-discrimination, including people living with HIV and TB and vulnerable populations such as women, there remain gaps and challenges that have been identified within Botswana’s current legal and policy framework that create barriers to access to prevention, treatment, care and support for all people, including vulnerable and key populations. It is imperative for all of us to take cognisance of the recommendations in the report if we are end AIDS by 2030. Botswana has adopted the Treat All strategy, developed HIV Testing Services (HTS) Strategy and reviewed the treatment guidelines. To achieve these targets by 2020, it is essential that the legal environment supports the national response in programming and ensure unrestricted access to services among all people of Botswana regardless of race, colour, religion, creed, sex, sexual orientation, gender identity, national origin, disability, vocation or other status. This report is a fundamental step in ensuring that each stakeholder plays a role in the fight against the epidemic. As highlighted by the UN Secretary General: “Whatever our role in life, wherever we may live, in some way or another, we all live with HIV. We are all affected by it. We all need to take responsibility for the response.” Ensuring no one is left behind is essential since vulnerable and key populations bear much of the burden of the epidemic today. We must uphold the value of Botho as Batswana, which promotes the social contract of mutual respect, responsibility and accountability that Batswana have always cherished. We need to continue to uphold the basic tenets of human rights in order to maintain the significant achievements that we have made in the national response. The Government of Botswana recognises that rights are intricately linked with the spread and impact of HIV on individuals and communities around the world. It is therefore imperative for us to continuously address the prevailing social, legal and economic conditions, including those that affect key and vulnerable populations such as women and children, and particularly those living in poverty. The Ministry of Health and Wellness will play an essential role in steering the implementation of the recommendations of this report. This Legal Environment Assessment report provides clear and practical recommendations to remove legal barriers that impede the HIV and TB responses and to ensure that Botswana has an enabling, evidence-informed legal environment. We have come so far, but to make further progress in the HIV and TB responses, to save countless lives and prevent unnecessary deaths, we must ensure that our laws reflect our national commitment to leaving no one behind. Indeed, an enabling legal environment has the potential to transform the HIV and TB responses in Botswana. The level of progress and commitment already shown is very encouraging. While the Government of Botswana remains committed to achieving further progress, a collective resolve and concrete actions must be undertaken by the LEA Steering Committee, all ministries, agencies, the private sector, civil society, development partners, individuals, families and communities to ensure realisation of an enabling legal and policy environment. Shenaaz El-Halabi Jacinta Barrins Permanent Secretary United Nations Development Programme Ministry of Health and Wellness Resident Representative Botswana Botswana 1 TABLE OF CONTENTS FOREWORD....................................................................................................................................... 1 ACKNOWLEDGEMENTS .................................................................................................................. 4 ABBREVIATIONS ............................................................................................................................. 5 EXECUTIVE SUMMARY .................................................................................................................. 7 PART I: INTRODUCTION ................................................................................................................ 12 Background 12 Aims and Objectives 14 Implementation Modalities 15 LEGAL ENVIRONMENT ASSESSMENT FINDINGS ...................................................................... 17 An Overview of HIV and Tuberculosis 17 PART II: THE INTERNATIONAL, REGIONAL AND NATIONAL HUMAN RIGHTS FRAMEWORK................................................................................................................................ 20 The Application of Treaties in Botswana 20 The Application of Specific Human Rights in the Context of HIV and TB 25 The Constitution 25 The Rights to Non-Discrimination and Equality 27 The Right to Privacy 28 The Right to the Highest Attainable Standard of Physical and Mental Health 29 The Rights to Life and Dignity 31 The Right to Freedom of Movement 32 The Right to Liberty and Security of Person 33 The Rights to Education and Information 34 The Right to Work 35 Freedom from Cruel, Inhuman or Degrading Treatment or Punishment 36 The Right to an Adequate Standard of Living and Social Services 37 PART III: NATIONAL LAWS, POLICIES, REGULATIONS AND PLANS RELEVANT TO HIV, TB AND KEY AND VULNERABLE POPULATIONS ..................................................................................... 38 Health Laws, Policies, Regulations and Plans Concerning HIV, TB, and Human Rights 38 Stigma and Discrimination Against People Living with HIV 57 Equality and Non-Discrimination Framework for Key and Vulnerable Populations 59 Gender Equality and Non-Discrimination 60 Children, Adolescents and Young People 72 People with Disabilities 82 Prisoners and Persons in State Custody 86 Migrants 91 Remote Area Dwellers 96 2 Criminalisation and Punitive Laws and Law Enforcement 99 Criminalisation of HIV and Communicable Disease Transmission and Exposure and Other Punitive Provisions 99 Laws Criminalising Consensual Sexual Activity between Adults of the Same Sex and Other Laws Impacting LGBTI Persons 102 Laws Criminalising Aspects of Sex Work 108 Laws Criminalising Personal Drug Use and Harm Reduction 112 Employment and Labour 114 Education and Information 116 Social Welfare 121 PART IV: PROTECTION, ACCESS TO JUSTICE AND LAW ENFORCEMENT IN BOTSWANA......122 Awareness of HIV, Law and Human rights and Legal Support 123 Statutory Institutions 124 The Courts 125 Access to Justice 128 Access to Justice in the Context of Healthcare 129 The Police Service 130 The Prisons Service 130 PART V: RECOMMENDATIONS......................................................................................................132 3 ACKNOWLEDGEMENTS The Ministry of Health and Wellness acknowledges the contributions and inputs from the following institutions and individuals. Botswana National Steering Committee: We are grateful for the leadership and invaluable support provided by the Legal Environment Assessment Steering Committee including Haruna B. Jibril (Ministry of Health and Wellness-MOHW), Bornapate Nkomo (MOHW), Mavis Bengtsson (UNDP), William Bapati (UNDP), Gang Sun (UNAIDS), Elizabeth Koko (MOHW), Chipo Petlo (MOHW), Rinso Sebako (MOHW) Nthabiseng Phaladze (University of Botswana), Kelebileng Kokoro (AG Chambers), Allan Tshekedi (BONEPWA), Mosarwa Segwabe (USAID), Doug Johnson (PEPFAR), Cindy Kelemi (BONELA), Rodger Bande (BONELA), Phazha Molebatsi (BONELA), Boipelo Marumo (MYSC), Mpho Mmelesi (UNAIDS), G.G. Rabasha (MOHW), Bose A. Senome (MOHW), John Chambo (MOHW), Lentswe Motsamai (MLHA), Caine Youngman (LEGABIBO), Jonathan Moalosi (MOHW), Elijah Tsaposa (Botswana Police Service), Bulayani Bengani (Botswana Police Service), Moses Khunwane) (Botswana Police Service), Molebatsi (Botswana Parliament), Maikutlo Pitlagano (Botswana Prisons Service), Motlalepula Vakalisa (Botswana Prisons Service) and Martin Keabona (MOE). Overall Coordination: We sincerely appreciate the overall coordination by a number of individuals including Bornapate Nkomo (MOHW), Mavis Bengtsson (UNDP), Elizabeth Koko (MOHW), Chipo Petlo (MOHW), William Bapati (UNDP), Anders Pedersen (United Nations), Deena Patel (UNDP-RSCA), and Tilly Sellers (UNDP-RSCA). Consultants: We are grateful for the technical expertise and services of consultants including Drew Aiken (UNDP- National), Peter Chibatamoto (UNDP-National) and Kitty Grant (UNDP-RSCA) who conducted the assessment and compiled the report. External Contributors to Supporting Evidence: Thank you to the key informants and focus group participants for informing the findings and recommendations of this report. Funding: We acknowledge the generous financial support from Global Fund to Fight AIDS, Tuberculosis and Malaria and UNDP. 4 ABBREVIATIONS AIDS Acquired Immune Deficiency Syndrome ANC Antenatal Care ARASA AIDS and Rights Alliance for Southern Africa ASRH Adolescent Sexual and Reproductive Health AU African Union BBSS Behavioural and Biological Surveillance Survey BHPC Botswana Health Professions Council BIAS Botswana AIDS Impact Survey BNTP Botswana National Tuberculosis Programme BONELA Botswana Network on Ethics, Law and HIV and AIDS CD4 Cluster Differentiation 4 CEDAW Convention on the Elimination of All forms of Discrimination