In light of the importance of a robust legislative response to the epidemic and strong action on behalf of the most affected communities, we draw your attention to serious human rights concerns that have been raised with respect to the N’Djamena “model law” and the national HIV laws that have followed it. This meeting is a vital opportunity to update these laws so that the region of West and Central Africa reflects the very best guidance on how countries respond to HIV with legislation.
A number of provisions of the N’Djamena “model law” violate international human rights law and the UNAIDS/Office of the High Commissioner for Human Rights International Guidelines on HIV/AIDS and Human Rights (“the International Guidelines”). Further, while the International Guidelines emphasize the importance of protecting women’s rights, the model law
is extremely detrimental for women, who are more likely than men to be tested for HIV (due to testing conducted in antenatal clinics) and more vulnerable to violence and abandonment resulting from disclosure of their status.
Specifically:
• The “model law” contains language that could severely restrict educational activities around HIV prevention in schools.
• In explicit contravention of the International Guidelines, the “model law” allows mandatory HIV testing in situations such as where pregnant women go for a medical check-up, or “to solve a matrimonial conflict”. Mandatory testing for pregnant women jeopardizes women’s health and lives by discouraging them from seeking pregnancy related care.
• The “model law” imposes a blanket duty on health care practitioners to disclose the HIV status of their patients to their patients’ spouses or sexual partners, regardless of the actual risk of transmission. The law contains no provisions to ensure that the person living with HIV be given advance warning of such notification, nor any means to prevent violence or abandonment that may be a direct result of such involuntary disclosure. This provision has particular implications for women who bear the brunt of intimate partner violence.
• The “model law” contains a provision criminalizing “the willful transmission of HIV”, and defines HIV transmission to be transmission of the virus “by any means”. This broad language could impose criminal penalties even on individuals who practice safer sex and/or disclose their HIV status to their sexual partners, or on mothers who transmit HIV to their children, either in utero or during labour and delivery.
UNAIDS and the Office of the High Commissioner for Human Rights reissued the International Guidelines in 2006 in recognition of the continued centrality of human rights to the fight against AIDS. We urge you to ensure that the HIV laws in West and Central Africa guarantee human
rights protections, including the human rights of women. HIV laws in the region should be based on education, empowerment, non-discrimination, and community engagement. Punitive provisions and other approaches that exacerbate stigma and discrimination will only drive people away from testing and treatment services and risk undermining an effective response to the epidemic.
We therefore urge you to ensure that the workshop results in:
1) Concrete plans, within established time periods, to amend the limited number of articles in national HIV laws that are at variance with international human rights law and the UNAIDS/Office of the High Commissioner for Human Rights’ International Guidelines.
2) The N’Djamena “model law” has been promoted as a template for legislation in the region. It is therefore critical that it be revised so that it provides parliamentarians with a resource that reflects international human rights principles and the UNAIDS/Office of the High Commissioner for Human Rights’ International Guidelines. We understand that revision was agreed to during the previous meeting on the “model legislation” in Dakar, July 2007. Specifically, the law should be revised to include provisions that specifically protect the rights of women, prisoners, and other vulnerable populations as well as to amend existing provisions on:
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o Education on HIV and AIDS in schools;
o Mandatory HIV testing;
o Partner notification;
o Discrimination;
o Criminalisation of transmission;
o Prisons.
3) A clear commitment to genuine participation with civil society partners, particularly with representatives of those communities who will be most affected by the laws under discussion including persons living with HIV and women, from the region and across Africa, throughout the drafting, amendment, and implementation of these laws. We look forward to learning the outcome of this week’s meeting and to following this important process.
Sincerely,
AIDS and Human Rights Research Unit
University of Pretoria, South Africa
AIDS Law Project
South Africa
AIDS and Rights Alliance of Southern Africa
Southern Africa
Yaovi Mawulé Apedo
JMAH (Jeunes missionnaires d'Aide Humanitaire)
TOGO
Janet Asiimwe
Zimbabwe Lawyers for Human Rights
Zimababwe
Association AFRIQUE JEUNES 2020
Mali
The ATHENA Network
Global
Gueye Babacar
Advocacy Program Manager, Association AWA
Senegal
Alvaro Bermejo
Executive Director, International HIV/AIDS Alliance
Elizabeth Brundige
Allard K. Lowenstein International Human Rights Clinic, Yale Law School
United States
Robert Carr
Executive Director, Caribbean Vulnerable
Communities Coalition
Jamaica
Center for Reproductive Rights
United States
Linda Dumba Chicalu
Project Lawyer, Aids Law Unit, Legal Assistance Centre
Namibia
Faustace Chirwa
Executive Director, National Women's Lobby &
Rights Group (NWLRG)
Malawi
The Coalition of Women Living with HIV and AIDS in Malawi
Lironga Eparu
National Association of PLWHA
Namibia
Marieta de Vos
Executive Director
Mosaic Training, Service & Healing Centre for Women
South Africa
Simão Cacumba M. Faria
SCARJOV- Associação de Reintegração dosJovens/Crianças na Vida Social
Angola
Patricia Figueroa
Caribbean Regional Coordinator HIV Collaborative Fund/ ITPC
Puerto Rico Community Clinical Research on AIDS - PR CoNCRA
Sally Fisher
Intersect Worldwide
United States
Aneleh Fourie-Le Roux
Training and Mentoring Coordinator, Christian
Aids Bureau for Southern Africa
South Africa
Anne Gathumbi
Program Officer, OSIEA
Kenya
Ted Gaudet
Board Member, GNP+NA
Canada
Liesl Gerntholtz
Director, Tshwaranang Legal Advocacy Centre
South Africa
Global AIDS Alliance
Global
GNP+ (The Global Network of People living with HIV/AIDS)
Global
Gill Greer
Director General, IPPF
Global
Rosemary Hack
AIDSLink
South Africa
Yapja Youchaou Hamed
National Coordinator, NGO Solidarity Cameroon
Cameroun
Human Rights Watch
United States
International Community of Women Living with
HIV/AIDS (ICW)
Global
International Women’s Health Coalition
United States
Ipas (International NGO - offices in 13 countries)
Hannah Jansen
Stichting Marieke Bevelanderhuis
Netherlands
Léonnie Kandolo
Présidente, Protection Enfants Sida “P.E.S.”
République Démocratique du Congo
Georges Kanuma
ANSS (Association National de Soutien aux
Séropositifs et aux malades du sida)
Burundi
Johanna Kehler
Executive Director, AIDS Legal Network
South Africa
Bhawani Shanker Kusum
Secretary & Executive Director, Gram Bharati Samiti (GBS)
India
Rafa Valente Machava
Executive Director, Women, Law and
Development Association MULEIDE
Mozambique
Stephen McGill
Stop AIDS In Liberia (SAIL)
Liberia
Frank Molteno
Coordinator, Cathedral HIV & AIDS Task Team
(CHATT) [Anglican Church of Southern Africa]
South Africa
Damaris Mounlom
Coordinator, Women-Health-Development NGO
Cameroon
Buyiswa Mpini
Nelson Mandela Metropolitan University
South Africa
Dr. Lydia Mungherera
Chair of the Executive Board of Mama's Club
Uganda
Malala Mwondela
Executive Director
Zambia AIDSLaw Research & Advocacy Network (ZARAN)
Zambia
Sylvie Niombo
AZUR Développement
Congo
Patrice Desire Ndzie
KidAIDS-Cameroon
Cameroon
Pan African Treatment Access Movement (PATAM)
Morocco
Positive Malaysian Treatment Access & Advocacy Group (MTAAG+)
Malaysia
Nicolas Ritter
Director, Prévention Information et Lutte contre le Sida – PILS –
Mauritius
Solidarity and Action Against HIV Infection in India (SAATHII)
India
Adejoke Sonoiki
Journalists Against AIDS (JAAIDS)
Nigeria
SIDACTION
France
James Silk
Clinical Professor of Law, Allard K. Lowenstein International Human Rights Clinic, Yale Law School
United States
Meena Saraswathi Seshu
General Secretary, SANGRAM
India
Richard Shilamba
Ag. National Coordinator, Southern Africa Human Rights NGO Network(SAHRiNGON)-Tanzania Chapter
Tanzania
Bille Sike
Association De Lutte Contre Les Violences Faites
Aux Femmes
Cameroun
Marion Stevens
Treatment Monitor, Health Systems Trust
South Africa
Belinda Tima
ICW Co-Chair
United Kingdom
Norman Tjombe
Director, Legal Assistance Centre
Namibia
Zoumana Isaac Traore
National Coordinator, International AIDS Candlelight Memorial
Mali
Treatment Action Campaign
South Africa
Lyn van Rooyen
Programme Manager, CARIS - Christian AIDS Resource and Information Service
South Africa
Frans Viljoen
Director, Centre for Human Rights, University of
Pretoria
South Africa
World YWCA
Global
