HUMAN RIGHTS PROTECTED? NINE SOUTHERN AFRICAN COUNTRY REPORTS ON HIV, AIDS AND THE LAW AIDS and Human Rights Research Unit 2007 Human rights protected? Nine Southern African country reports on HIV, AIDS and the law Published by: Pretoria University Law Press (PULP) The Pretoria University Law Press (PULP) is a publisher at the Faculty of Law, University of Pretoria, South Africa. PULP endeavours to publish and make available innovative, high-quality scholarly texts on law in Africa that have been peer-reviewed. PULP also publishes a series of collections of legal documents related to public law in Africa, as well as text books from African countries other than South Africa. For more information on PULP, see www.pulp.up.ac.za Printed and bound by: ABC Press Cape Town Cover design: Yolanda Booyzen, Centre for Human Rights To order, contact: PULP Faculty of Law University of Pretoria South Africa 0002 Tel: +27 12 420 4948 Fax: +27 12 362 5125 [email protected] www.pulp.up.ac.za ISBN: 978-0-9802658-7-3 The financial support of OSISA is gratefully acknowledged. © 2007 Copyright subsists in this work. It may be reproduced only with permission from the AIDS and Human Rights Research Unit, University of Pretoria. Table of contents PREFACE iv LIST OF FREQUENTLY USED ACRONYMS AND ABBREVIATIONS vii 1 HIV, AIDS and the law in Botswana 1 2 HIV, AIDS and the law in Lesotho 39 3 HIV, AIDS and the law in Malawi 81 4 HIV, AIDS and the law in Mozambique 131 5 HIV, AIDS and the law in Namibia 163 6 HIV, AIDS and the law in South Africa 205 7 HIV, AIDS and the law in Swaziland 283 8 HIV, AIDS and the law in Zambia 309 9 HIV, AIDS and the law in Zimbabwe 353 ANNEXURE: NGOs BY COUNTRY 399 INFORMATION ON THE AIDS AND HUMAN RIGHTS RESEARCH UNIT 424 iii Preface Human rights protected? Nine Southern African country reports on HIV, AIDS and the law builds on HIV/AIDS and human rights in Southern Africa, an analysis of the situation of HIV, AIDS and human rights in Southern Africa, undertaken by the Centre for the Study of AIDS (CSA) in 2002.1 The present publication takes these reports further by expanding the countries examined, updating the reports, and amending them to incorporate country-specific information on the four debates presented in Human rights under threat: Four perspectives on HIV, AIDS and the law in Southern Africa, an accompanying publication by the AIDS and Human Rights Research Unit (Unit) of the CSA and the Centre for Human Rights (CHR). The four issues of particular concern with respect to the protection of human rights, which were incorporated into these updated reports are: the criminalisation of the wilful transmission of HIV; routine testing; the restriction of prisoners’ access to prevention and treatment; and the limitations on access to HIV and AIDS-related medicines. In order to update the existing reports, researchers were identified from existing networks in each of the nine countries under discussion. A questionnaire was developed by the Unit, which was used by the researchers in order to guide the research and to ensure consistency in the nature of information gathered. The responses were then collated by the Unit and are published here. As far as possible, the updated reports set out the position of HIV, AIDS and the law in the respective countries as of 31 July 2007. This report may be read in conjunction with the AIDS and Rights Alliance of Southern Africa (ARASA) research report HIV/AIDS and human rights in SADC: An evaluation of the steps taken by countries within the SADC region to implement the International Guidelines on HIV/AIDS and Human Rights, released at the end of 2006 (see http://www.arasa.info). The ARASA report is broader in its regional scope, as it focuses on all 14 SADC countries, but also narrower in its substantive ambit, as it limits itself to the International Guidelines.2 South African judge and HIV activist, Edwin Cameron, noted that the role of the law in a public health crisis should be ‘to contain the epidemic and to mitigate its impact’.3 In other words, he states, the law ‘should aim to save the uninfected from infection and to protect the infected from the unjust consequences of public panic’.4 Is the law offering this kind of protection in the face of the HIV epidemic? Acknowledging that the most effective way to ensure the protection of human rights is to enshrine international norms in national constitutions and national legislation, this publication examines this 1 See http://www.csa.za.org 2 See also A Strode and B Grant ‘A critical review of the extent to which the HIV/ AIDS and Human Riglopment Community’ (2007) Obiter 70. 3 E Cameron ‘Using the law in the HIV pandemic: sword or shield’ Lecture at Birkbeck College, London 28 June 2007 http://www.nat.org.uk/document/307 (accessed 30 August 2007). 4 As above. iv question with respect to nine Southern African countries: Botswana, Lesotho, Malawi, Namibia, Mozambique, South Africa, Swaziland, Zambia and Zimbabwe. While the findings note that these countries are by no means ignoring the epidemic and the many human rights threats and violations that accompany it, the response tends to be focused at policy rather than legislation. The information presented in the reports is comprehensive, covering, for example, a general background on each country, international human rights law, case law, HIV and AIDS policy, the rights of vulnerable groups, and criminal law. Common threads emerge with respect to the nine countries in the form of weaknesses or gaps in the response to the epidemic in terms of human rights. As was hypothesised at the conceptualisation of the publication, some of these trends have proven to correspond and support the debates mentioned above and presented in Human rights under threat: Four perspectives on HIV, AIDS and the law in Southern Africa. For example, with respect to prisoners’ rights and HIV and AIDS, a debate explored in the above-mentioned publication, the reports reveal that only South Africa, Lesotho and Mozambique distribute condoms in prisons – at least in theory or from time to time. In the other countries surveyed, condoms are not made available to prisoners so as not to encourage sexual relations between men, a crime in all the countries but South Africa. In most of the cases, prisoners do not have access to ARVs administered in the prisons at government expense and where such is provided for, there is a conflict between policy and practice. For example, in South Africa, failure to implement legislation related to the provision of ART forced 15 inmates of the Westville prison in Durban and the Treatment Action Campaign to take legal action against the prison and the South African government in order to demand access to ART. Another common thread uncovered in the reports is inadequate legal protection afforded to women and a subsequent failure to address one of the root causes of the HIV epidemic. While in all of the countries examined equality on the basis of sex is enshrined in the Constitution, customary law exists and, in some cases, takes precedence over the constitutional provision of equality. The reports also refer to the many customary practices that are still respected and which can potentially contribute to the spread of HIV, such as polygamy, wife inheritance, widow cleansing, and child marriage. Reflective of a gross underestimation of the link between domestic violence and HIV transmission, less than half of the countries (Malawi, Zimbabwe, Namibia, and South Africa) have specific legislation prohibiting domestic violence. Enacting domestic violence legislation should be a priority in the response to the pandemic. A striking feature of the reports is the discordance between policy, legislation, and practice. In all of the countries, AIDS policies exist, alongside policies relating to testing, treatment, and orphans and other vulnerable children, for example. In many cases, these policies have been clearly influenced by the International Guidelines on HIV/AIDS and Human Rights. The policies, while commendable and demonstrative of political recognition of the severity of the epidemic and the threat to human rights that it presents, lack mechanisms for v accountability and as such, in certain respects, rather pay lip service to action. While policy development is a necessary step in addressing the epidemic, it can often give the impression that political will is greater than what the situation on the ground presents. For example, pre- and post-test counselling features in all testing policies and guidelines yet in practice it is rarely carried out effectively, if at all. On the other hand, the reports show a need for increased legislation specific to HIV and AIDS which would not only complement existing policies but provide for strengthened government accountability whereby victims of human rights violations in the face of the epidemic are empowered to seek legal redress for injustices incurred. Through dissemination to both civil society and policy makers, it is hoped that Human rights protected? Nine Southern African country reports on HIV, AIDS and the law will serve as a tool to assist those involved in advocacy as well as government stakeholders to agitate for legislation towards increased human rights protection in the context of the HIV pandemic. The Unit gratefully acknowledges the following authors of, and contributors to, the reports: • Susan Precious, co-author of the South Africa report • Mianko Ramaroson, co-author of the South Africa report • Rofiah Ololade Sarumi, author of the