Summary

Human Rights Watch welcomes the opportunity to provide input to the “Committee on the Protection of the Rights of People Living with HIV (PLHIV) and Those at Risk, Vulnerable to and Affected by HIV” (the Committee) on the Draft Study on HIV, the Law and Human Rights in the African Human Rights System (the Draft Study).[1]

Human Rights Watch further welcomes the Intersession Activity Report presented by Commissioner Soyata Maiga, Chairperson of the Committee, during the 58th Ordinary Session of the African Commission on Human & Peoples’ Rights (African Commission) held in Banjul, The Gambia.[2] The report addresses pertinent issues, including but not limited to:

  • The persistence of stigma, discrimination and other forms of ill-treatment in health care settings targeted at certain groups of people.[3]
  • The negative health impacts of restrictive and punitive laws and policies and the absence of an appropriate legal environment for the protection of people living with HIV in Africa, vulnerable persons, and those at risk of HIV.[4]
  • The need to implement effective strategies to combat discrimination in health facilities to ensure that young girls, sex workers, and MSM have equal access HIV-related services.[5]

Human Rights Watch commends the African Commission for adopting General Comment No. 2 on Article 14 (1)(d) and (e) of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol).[6] Through this General Comment, the African Commission recognizes that women, particularly young women, in Sub-Saharan Africa are disproportionately affected by the HIV epidemic; that women experience multiple forms of discrimination on various grounds, including inter alia, race, sex, sexuality, sexual orientation, and harmful customary and/or religious practices.[7] The General Comment provides essential normative guidance to States parties to the African Charter on Human & Peoples’ Rights (African Charter) to fulfil legal obligations assumed under regional human rights norms and standards in the context of gender equality and HIV and AIDS.[8]

Human Rights Watch recognizes that the Draft Study contains a broader analysis of the human rights concerns for Key Populations and that this is another essential contribution to the African Commission’s mandate for norms and standard-setting in the Africa region.[9]

This submission follows the structure of the Draft Study, with an added focus on sexual and gender minorities and concludes with recommendations to States parties. The information and recommendations contained herein are based on extensive research on the human rights implications of HIV in various countries in Sub-Saharan Africa.

 

I. Comments on Section 2: “Overview of the African Regional Human Rights System and HIV: Norms and Mechanisms”

International Human Rights Law

The Draft Study contains excellent analysis of regional and sub-regional human rights norms and standards applicable to the HIV epidemic in Africa. Human Rights Watch recommends that these frameworks be supplemented by relevant international human rights norms.

In terms of Article 60 of the African Charter, the African Commission is required, when executing its protective and promotional mandates, to draw inspiration from international law on human and peoples’ rights, including the Universal Declaration on Human Rights and other instruments adopted by the United Nations.[10] Furthermore, Article 18 of the African Charter provides that “the State shall ensure the elimination of every discrimination against women and also ensure the protection of the rights of women and the child as stipulated in international declarations and conventions.”[11]

States parties to the African Charter have ratified the major international human rights treaties relevant for responding to the HIV epidemic in Africa. For instance, African States, with the exception of Botswana, Mozambique, and South Sudan, have ratified the International Covenant on Economic, Social, and Cultural Rights (ICESCR), which upholds the right to the highest attainable standard of health, and prohibits any form of discrimination in accessing this right.[12] The Committee on Economic, Social, and Cultural Rights (CESCR) defines discrimination as:

[A]ny distinction, exclusion, restriction or preference or other differential treatment that is directly or indirectly based on the prohibited grounds of discrimination and which has the intention or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of Covenant rights.[13]

The CESCR expressly states that sexual orientation and gender identity are to be recognized as prohibited grounds of discrimination, since the words “other status” in Article 2 indicates a non-exhaustive list.[14] For States parties to guarantee the exercise of Covenant rights for every person, without any discrimination, the CESCR emphasizes the importance of eliminating both formal and substantive discrimination.[15] In other words, States parties are required to ensure that constitutions, laws, and policy documents do not discriminate on prohibited grounds, including on the basis of sexual orientation and gender identity. States parties are required to ensure that a person’s actual or perceived health status, including HIV status, is not a barrier to realizing the full range of rights under the ICESCR.[16]

Additionally, African States, with the exception of Sudan and Somalia, have ratified the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), which requires states parties to “take all appropriate measures to eliminate discrimination against women in the field of health care.”[17] The Committee on the Elimination of Discrimination against Women (CEDAW Committee) recognizes how unequal power relations based on gender and harmful traditional practices such as marital rape increase the vulnerability of women and girls to HIV infections and other sexually transmitted diseases, and emphasizes that States parties “should ensure, without prejudice or discrimination, the right to sexual health information, education and services for all women and girls.”[18] In 2010, the CEDAW Committee expressly stated in its General Recommendation No. 28 that “discrimination of women based on sex and gender is inextricably linked with other factors that affect women, such as … sexual orientation and gender identity.”[19]

Human Rights Watch recommends that the Draft Study integrate an analysis of relevant and applicable international human rights treaties, in particular, legal obligations in accordance with ICESCR and CEDAW.

 

II. Comments on Section 2: “Rights Relevant to HIV Recognized in the African Human Rights System” – Subsection 28 on Sexual Minorities

Sexual and Gender Minorities

The African Commission has addressed human rights abuses on the grounds of sexual orientation and gender identity. While this section of the Draft Study references Resolution 275 on Protection against Violence and other Human Rights Violations against Persons on the basis of their real or imputed Sexual Orientation or Gender Identity adopted in 2014[20] the African Commission has also adopted concluding observations in respect of various States parties’ reports, interpreted specific provisions of the African Charter to include sexual orientation and elaborated studies which include an analysis of human rights violations on the basis of sexual orientation and gender identity. These developments could be cited in the Study in order to reinforce the African Commission’s consistent findings that discrimination against sexual and gender minorities is prohibited under regional human rights law.

  • In Concluding Observations on the 3rd Periodic Report of the Republic of Cameroon, adopted in March 2014, the African Commission expressed concern about the judicial harassment of human rights defenders working in the area of sexual orientation and the, “discrimination, stigma and violation of the right to life and physical and mental integrity of individuals based on their sexual orientation,” and urged the Government of Cameroon to, “take appropriate measures to ensure the safety and physical integrity of all persons irrespective of their sexual orientation and maintain an atmosphere of tolerance towards sexual minorities in the country.”[21]
  • Issuing its Decision on Communication 245/02, Zimbabwe Human Rights NGO Forum V Zimbabwe, the African Commission noted that principles of equality and non-discrimination apply to all persons, stating:

Together with equality before the law and equal protection of the law, the principle of non-discrimination provided under Article 2 of the Charter provides the foundation for the enjoyment of all human rights.… The aim of this principle is to ensure equality of treatment for individuals irrespective of nationality, sex, racial or ethnic origin, political opinion, religion or belief, disability, age or sexual orientation.[22]

  • The 2015 Report of the Study on the Situation of Women Human Rights Defenders in Africa, prepared by the Special Rapporteur on Human Rights Defenders, Commissioner Reine Alapini-Gansou, urges National Human Rights Institutions to pay particular attention to women human rights defenders “working on issues and contexts of criminalized identities, such as the rights of sex workers, women living with HIV accused of deliberate transmission and sexual orientation and gender identity” and to the work of women human rights defenders working on issues that are criminalized in their countries.[23]
  • The information on the Commission’s Concluding Observations and Recommendations on the 5th Periodic Report of the Federal Republic of Nigeria, currently included in Paragraph 50 of the Study, should ideally be moved to this section of the Draft Study as it deals with the impact of the Same Sex Marriage (Prohibition) Act, 2014 (SSMPA) on violence and access to HIV services and treatment, calling for the review of the SSMPA.

Finally, Human Rights Watch recommends that in all instances where there is reference to “sexual minorities” this should be amended to more accurately read “sexual and gender minorities” in order to include transgender and gender non-conforming people.

 

III. Comments on Section II, Sub-Section on “African Court on Human and Peoples’ Rights”

The African Court on Human & Peoples’ Rights (African Court) enjoys jurisdiction over contentious matters and entertains requests for advisory opinions on legal questions referred to it by a Member State of the African Union, organs of the African Union, and any African organization recognized by the African Union.[24] In terms of Article 4 of the Protocol to the African Charter on Human & Peoples’ Rights on the Establishment of an African Court on Human & Peoples’ Rights (Protocol Establishing the Court), the African Court may issue an opinion on any matter “provided the subject matter of the opinion is not related to a matter being examined by the Commission.”[25]

As the Draft Study correctly notes, only seven African States that have ratified the Protocol Establishing the Court have made the Article 34(6) declaration accepting the competence of the African Court to adjudicate contentious matters. The African Court is yet to develop its jurisprudence on HIV, the law, and human rights in Africa.

Human Rights Watch recommends that the Draft Study include an analysis of the African Court’s competence to receive requests for Advisory Opinions from African organizations. To date, the African Court has issued orders in respect of three requests and issued an opinion in respect of one.[26] There are presently six requests for advisory opinions pending before the African Court, which deal with both procedural and substantive issues. For instance:

  • Advisory Opinion 001/2016: request for the Court to give its opinion on the interpretation of Article 6(d) Maputo Protocol.[27] According to Article 6(d), States parties are required to enact appropriate national legislation to ensure “every marriage shall be recorded in writing and registered in accordance with national laws, in order to be legally recognized.”[28
  • Advisory Opinion No. 002/2015: request for the Court to give its opinion on how the term “considered” in Article 59 (3) of the African Charter should be interpreted.[29] Article 59(3) reads: “The report on the activities of the Commission shall be published by its Chairman after it has been considered by the Assembly of Heads of State and Government.”[30]

While noting that the African Commission recently adopted General Comment No. 1 on Article 14 Article 14 (1) (d) and (e) of the Maputo Protocol, noted above, it is yet to develop similar guidance in respect of Article 16 of the African Charter, which guarantees the right to “the best attainable state of physical and mental health.”[31] A request for an advisory opinion, filed by the African Commission or African organizations working in the area HIV and the law, will contribute to clarifying the normative content of the right to health in the context of HIV and key populations in Africa and obligations of States parties.

 

IV. Comments on Section IV: “Key Human Rights Issues” Sub-Section 4.1 Violence against Women

Human Rights Watch supports the Committee’s understanding of intersectional discrimination and recognition that women from marginalized groups are at particular risk of sexual violence and HIV infection. In addition to specifying the vulnerability of sex workers and women with disabilities, we believe it is essential to consider discrimination and violence against women on the basis of their sexual orientation or gender identity. The African Commission in Resolution 275 notes that acts of violence, including punitive rape, discrimination, and other human rights violations are committed in many parts of Africa against persons because of their actual or imputed sexual orientation or gender identity.[32]

Human Rights Watch has documented the violence and abuse faced by working-class South African black lesbians, bisexual women, transgender men, and gender non-conforming people.[33] We found that lesbians and transgender men face violence in their daily lives, both from private individuals and government officials. South Africa has the highest prevalence of HIV/AIDS in the world, with an estimated 7 million people living with HIV in 2015.[34] In this context, lesbians, bisexual women, transgender men, and gender non-conforming people face a particular high risk of exposure to HIV because they are targeted for punitive rape.

Human Rights Watch recommends that this section of the Draft Study explicitly include language that recognizes that lesbians, bisexual women, transgender men, and gender non-conforming people are targeted for sexual violence solely because of their sexual orientation or gender identity, which exposes them to HIV infection. In this regard, we recommend that the description of the rape and murder of South African lesbian Duduzile Thoko be moved to this section, as this is an issue of violence against women, more than it is an issue of violence against key populations.

 

V. Comments on Section 4.4: “HIV Testing”

Human Rights Watch recommends that the Draft Study include reference that in some countries in which consensual same-sex conduct is criminalized, men accused of consensual same-sex conduct have been subjected to involuntary HIV testing. Human Rights Watch has documented involuntary HIV testing of men and transgender women accused of same-sex relations in Egypt, Kenya, and Uganda in the last five years.[35] Paragraph 161 of the Draft Study could be edited to include reference to the fact that in some countries, accused persons are subjected to involuntary HIV testing even in the case of “victimless crimes,” such as consensual same-sex conduct. Involuntary HIV testing violates human rights norms and ethical standards.

 

VI. Comments on Section 4.6: “Key Populations at Higher Risk of HIV Exposure”

The Draft Study correctly acknowledges that criminalization, violence and discrimination against key populations, including gay men and transgender women, impede access to HIV services. In addition to the abuses against key populations already noted in the Draft Study, Human Rights Watch has documented cases in six African countries in which law enforcement officials working in tandem with medical personnel subject men and transgender women who are arrested on homosexuality-related charges to forced anal examinations, with the purported objective of finding “proof” of homosexual conduct.[36]

Human Rights Watch recommends that in paragraph 180, the Draft Study make reference to forced anal exams, which could be inserted as follows in italics:

Various acts of violence documented in 2013 range from arbitrary arrest, detention and torture through to rape and murder. In addition, Human Rights Watch has documented the use of forced anal examinations of men and transgender women accused of consensual same-sex conduct in at least six African countries--a practice that turns medical practitioners into an arm of the state, implicating them in tests that have been described as a form of torture or cruel, inhuman and degrading treatment, and consequently widens the gap in trust between sexual and gender minorities and health care providers.[37]

Human Rights Watch has further noted that discriminatory attitudes toward key populations, including men who have sex with men and sex workers, have led countries to prohibit or restrict the distribution of, or to make no provisions for the importation of, water-based lubricant, which is recognized by UNAIDS and the World Health Organization as an essential HIV prevention tool.[38] For instance, Tanzania’s Minister of Health recently announced that Tanzania would prohibit non-governmental organizations from distributing lubricant to men who have sex with men.[39] The Ministry raided one organization, searching for lubricant, and a major international partner has suspended its distribution of lubricant to MSM, putting them at increased risk of HIV infection.

Human Rights Watch recommends that the section on Key Populations include reference to the importance of access to water-based lubricant, including for all key populations.

 

VII. Comments on Section 6.6: “Recommendations for Member States”

Human Rights Watch urges the Committee to include the following recommendations to States parties:

  • Repeal laws criminalizing adult consensual same-sex conduct;
  • Repeal all discriminatory laws relating to sexual orientation and gender identity;
  • Ensure all strategies, programs and services directed at combatting HIV are consistent with the human rights of women and girls, including the rights to dignity, autonomy, privacy, confidentiality and informed consent;
  • Remove all barriers to women’s access to health services, education and information and, in particular, allocate adequate resources for programs directed at women, irrespective of their sexual orientation or gender identity, for the prevention and treatment of sexually transmitted diseases, including HIV;
  • Ensure that condoms and water-based lubricants are widely available and accessible, particularly for members of key populations.
  • Review laws, policies and practices relating to adult sex work with a view to decriminalization.

 

Key Recommendations

Human Rights Watch recommends that the Draft Study include:

  • An analysis of relevant and applicable international human rights treaties, in particular, legal obligations of States parties under the International Covenant on Economic, Social and Cultural Rights and the Convention on the Elimination of All Forms of Discrimination against Women as well as the African human rights treaties and protocols. 
  • The African Commission’s jurisprudence and other positive developments in the area of sexual orientation and gender identity, in order to reinforce the African Commission’s consistent findings that discrimination against sexual and gender minorities is prohibited under regional human rights law.
  • An analysis of the African Court’s competence to receive requests for Advisory Opinions from African organizations. A request for an advisory opinion will contribute to clarifying the normative content of the right to health in the context of HIV and key populations in Africa and obligations of States parties.
  • The violence against women section explicitly include language that recognizes that lesbians, bisexual women, transgender men, and gender non-conforming people are targeted for sexual violence solely because of their sexual orientation or gender identity, which exposes them to HIV infection.
  • The section on Key Populations include reference to the importance of access to water-based lubricant, including for all key populations.
  • In all instances where there is reference to “sexual minorities” this should be amended to more accurately read “sexual and gender minorities” in order to include transgender and gender non-conforming people.
 

[1] Committee on the Protection of the Rights of People Living with HIV (PLHIV) and Those at Risk, Vulnerable to and Affected by HIV - Study undertaken in accordance with Resolution ACHPR/Res.290 (EXT.OS/XVI) 2014, http://www.achpr.org/mechanisms/hiv-aids/

[2] African Commission on Human & Peoples’ Rights, Intersession report of the Committee on the Protection of the Rights of People Living with HIV and those at Risk, Vulnerable to and Affected by HIV, 6, April 20, 2016, http://www.achpr.org/files/sessions/58th/inter-act-reps/253/58os_inter_s...

[3] Ibid para 13

[4] Ibid para 29

[5] Ibid para 15

[6] General Comments on Article 14 (1) (d) and (e) of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, http://www.achpr.org/files/instruments/general-comments-rights-women/ach...

[7] Ibid para 12

[8] African Charter on Human and Peoples' Rights, 27 June 1981, CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982): http://www.refworld.org/docid/3ae6b3630.htm (accessed August 12, 2016).

[9] Key Populations / Key Populations at Higher Risk of HIV Exposure: Those most likely to be exposed to HIV or to transmit it. In most settings, those at high risk of HIV exposure include men who have sex with men, transgender people, people who inject drugs, sex workers and their clients, and serodiscordant (couples in which one partner is HIV positive and one is HIV negative).

[10] African Charter Article 60: The Commission shall draw inspiration from international law on human and peoples’ rights, particularly from the provisions of various African instruments on Human and Peoples’ Rights, the Charter of the United Nations, the Charter of the Organisation of African Unity, the Universal Declaration of Human Rights, other instruments adopted by the United Nations and by African countries in the field of Human and Peoples’ Rights, as well as from the provisions of various instruments adopted within the Specialised Agencies of the United Nations of which the Parties to the present Charter are members.

[11] Ibid Article 18

[12] UN General Assembly, International Covenant on Economic, Social and Cultural Rights, 16 December 1966, United Nations, Treaty Series, vol. 993, art. 12, art. 2, p. 3, http://www.refworld.org/docid/3ae6b36c0.html (accessed August 12, 2016).

[13] Committee on Economic Social and Cultural Rights (CESCR) General Comment No. 20, “Non-discrimination in economic, social and cultural rights (art. 2, para. 2, of the International Covenant on Economic, Social and Cultural Rights),” E/C.12/GC/20 paragraph 7, July 2, 2009.

[14] Ibid para 32

[15] Ibid para 8(a) and (b)

[16] Ibid

[17] UN General Assembly, Convention on the Elimination of All Forms of Discrimination Against Women, 18 December 1979, United Nations, Treaty Series, vol. 1249, p. 13, http://www.refworld.org/docid/3ae6b3970.html [accessed 12 August 2016], art. 12.

[18] CEDAW General Recommendation No. 24: Article 12 of the Convention (women and health), paragraph 18, http://tbinternet.ohchr.org/Treaties/CEDAW/Shared%20Documents/1_Global/I... (accessed August 12, 2016).

[19] CEDAW General Recommendation No. 28 CEDAW/C/GC/28 para 18

[20] ACHPR Resolution 275: Resolution on Protection against Violence and other Human Rights Violations against Persons on the basis of their real or imputed Sexual Orientation or Gender Identity: http://www.achpr.org/sessions/55th/resolutions/275/ (accessed August 12, 2016).

[21] African Commission – Concluding Observations on the 3rd Periodic Report of the Republic of Cameroon, see paras: 84, 85, and recommendation xxxvi. http://www.achpr.org/files/sessions/54th/conc-obs/3-2008-2011/concluding... (accessed August 12, 2016).

[22] Communication 245/02: Zimbabwe Human Rights NGO Forum v Zimbabwe Para 169 African Commission: http://www.achpr.org/files/sessions/39th/comunications/245.02/achpr39_24... (accessed August 12, 2016).

[23] African Commission on Human and Peoples’ Rights, Report of the Study on the Situation of Women Human Rights Defenders in Africa, Recommendations to National Human Rights Institutions, para 210 and 211, http://www.achpr.org/mechanisms/human-rights-defenders/Study-Women-HR-De... (accessed August 12, 2016).

[24] Protocol Establishing the Court: Advisory Opinions - Article 4, http://en.african-court.org/images/Basic%20Documents/africancourt-humanr... (accessed August 12, 2016).

[25] Ibid

[27] Request for Advisory Opinion 001/2016, The Centre for Human Rights, Federation of Women Lawyers Kenya, Women’s Legal Centre, Women Advocates Research and Documentation Centre and Zimbabwe Women Lawyers Association, http://en.african-court.org/images/Cases/Advisory%20Opinion/Case%20Summa... (accessed August 12, 2016).

[28] Maputo Protocol, Article 6(d)

[29] Request for Advisory Opinion No. 002/2015 by the Centre for Human Rights (CHR) University of Pretoria, and the Coalition of African Lesbians (CAL), http://en.african-court.org/images/Cases/Advisory%20Opinion/Case%20Summa... (accessed August 12, 2016).

[30] Banjul Charter, Article 59(3)

[31] Banjul Charter, Article 16: Every individual shall have the right to enjoy the best attainable state of physical and mental health. State Parties to the present Charter shall take the necessary measures to protect the health of their people and to ensure that they receive medical attention when they are sick.

[32] ACHPR Res 275; the Resolution uses the term “corrective rape.”

[33] Human Rights Watch Report “’We’ll Show You You’re a Woman’: Violence and Discrimination against Black Lesbians and Transgender Men in South Africa,” https://www.hrw.org/report/2011/12/05/well-show-you-youre-woman/violence... (accessed August 12, 2016).

[35] Human Rights Watch Report, Dignity Debased: Forced Anal Examinations in Homosexuality Prosecutions, p. 17, https://www.hrw.org/report/2016/07/12/dignity-debased/forced-anal-examin... (accessed August 12, 2016).

[36] Human Rights Watch Report, Dignity Debased: Forced Anal Examinations in Homosexuality Prosecutions: https://www.hrw.org/report/2016/07/12/dignity-debased/forced-anal-examin... (accessed August 12, 2016). The six African countries that have been identified as carrying out forced anal examinations in the last five years are Cameroon, Egypt, Kenya, Uganda, Tunisia, and Zambia.

[37] Ibid

[38] UNAIDS, Condom and lubricant programming in high HIV prevalence countries, Guidance Note, 2014, http://www.unaids.org/sites/default/files/media_asset/condoms_guidanceno..., pp. 5-8; World Health Organization, HIV Prevention, Diagnosis, Treatment and Care for Key Populations: Consolidated Guidelines, July 2014, p. 3, http://apps.who.int/iris/bitstream/10665/128049/1/WHO_HIV_2014.8_eng.pdf... (accessed August 12, 2016).

[39] Habari 360, “Hili Hapa Tamko la Wizara ya Afya Kuhusu Matumizi na Usambazaji wa Vilainishi,” July 19, 2016: http://www.habari360.com/2016/07/hili-hapa-tamko-la-wizara-ya-afya.html?... Ummy Ally Mwalimu, Facebook post of July 24, 2016, https://www.facebook.com/Ummy-Ally-Mwalimu-1694185450859688/?hc_ref=PAGE... (accessed August 12, 2016).