HIV-specific legislation in sub-Saharan Africa: A comprehensive human rights analysis

Abstract

As at 31 July 2014, 27 sub-Saharan African countries had adopted HIVspecific legislation to address the legal issues raised by the HIV and AIDS epidemics. The article provides the first comprehensive analysis of key provisions in these HIV-specific laws. It shows that HIV-specific laws include both protective and punitive provisions. Protective provisions often covered in these laws relate to non-discrimination in general or in specific areas, such as employment, health, housing and insurance. However, these non-discrimination provisions are often not strong enough to fully protect the human rights of people living with HIV and those affected by the epidemic. Punitive or restrictive provisions appear to be a defining feature of HIV-specific laws, both in terms of the number of countries that have adopted them and with regard to the diversity of restrictive provisions provided in these laws. Restrictive provisions often covered in HIV-specific laws include compulsory HIV testing, particularly for alleged sexual offenders, involuntary partner notification and criminalisation of HIV non-disclosure, exposure and transmission. In the great majority of cases, these provisions are overly broad, they disregard best available recommendations for legislating on HIV, fail to pass the human rights test of necessity, proportionality and reasonableness, consecrate myths and prejudice about people living with HIV, and risk undermining effective AFRICAN HUMAN RIGHTS LAW JOURNAL

Towards smarter HIV laws:considerations for improving HIV-specific legislation insub-Saharan Africa

“…4,5 These laws also contain various forms of restrictive and coercive measures. 4,5 A recent review of HIV-specific laws in 26 sub-Saharan African countries found that 17 countries have broad provisions that allow for involuntary disclosure of HIV status of people living with HIV to their sexual partners, and 24 countries have provisions allowing for criminalisation of HIV non-disclosure, exposure or transmission (see Table).…”

“…4,5 These laws also contain various forms of restrictive and coercive measures. 4,5 A recent review of HIV-specific laws in 26 sub-Saharan African countries found that 17 countries have broad provisions that allow for involuntary disclosure of HIV status of people living with HIV to their sexual partners, and 24 countries have provisions allowing for criminalisation of HIV non-disclosure, exposure or transmission (see Table). 4 These coercive provisions not only infringe upon human rights, including the rights to autonomy, privacy and security; they have also been proved to negatively impact efforts to advance effective responses to HIV, as highlighted by the International Guidelines on HIV/AIDS and Human Rights:…”

“…8 A further concern in HIV-specific laws is the limited or lack of attention to the legal and human rights issues affecting many key populations, such as women and girls, sex workers and men who have sex with men, in spite of evidence on their greater vulnerability to HIV. 4 More than ten years after the first HIV-specific laws were adopted, there is limited evidence of their effective implementation and enforcement. Findings from surveys conducted in a number of countries that have adopted HIV-specific laws suggest that there is insufficient awareness of these laws among key stakeholders, including people living with HIV, who are arguably their primary beneficiaries.…”

“…4 Since their adoption, the great majority of HIVspecific laws have raised serious concerns relating to coercive provisions. 4,5 Research has also identified several flaws in the content of HIV-specific laws, such as lack of clarity, contradictory provisions, and failure to identify implementation agencies. 6 These concerns have generated questions about the rationale, process, content and implementation of most HIV-specific laws in sub-Saharan Africa.…”

“…On the other hand, efforts to review and improve HIV-specific laws have proved successful in a few countries in the region, including Sierra Leone, Guinea and Togo, thus suggesting that this approach is worth pursuing. 4 This article explores the application of the principles and approaches of "smarter legislation" to guide the review of HIV-specific laws. Following an overview of the human rights and implementation challenges in HIV-specific laws in sub-Saharan Africa, the article introduces the notion of "smarter legislation" and its application on key issues and challenges in the context of HIV-related law-making.…”