VIII. Zimbabwes Obligations under Regional and International Law
Every person has the right to the highest attainable standard of health, the right to life, the right to seek, receive and impart information of all kinds, the right to nondiscrimination and equal protection of the law, and the right to be protected from violence. International human rights law also requires states to address persistent violations of human rights and take measures to prevent their occurrence.
These rights are guaranteed by important international and regional treaties to which Zimbabwe is a party. These include the International Covenant on Economic, Social and Cultural Rights (ICESCR), the International Covenant on Civil and Political Rights (ICCPR), the U.N. Convention on the Elimination of all forms of Discrimination Against Women (CEDAW), and the African Charter on Human and Peoples Rights (ACHPR).
The Joint U.N. Program on HIV/AIDS (UNAIDS) and the Office of the U.N. High Commissioner for Human Rights (UNHCR) have developed specific guidelines on HIV/AIDS and Human Rights. A range of documents developed by various U.N. agencies, emphasize the links between HIV/AIDS and human rights and highlight how the violations of human rights drive the epidemic.
The right to enjoy the highest attainable standard of health is guaranteed by the ICESCR,227 CEDAW,228 and the ACHPR.229 This right imposes an obligation on states to take necessary steps for the prevention, treatment and control of epidemic and other diseases. In meeting this obligation, states should ensure that appropriate goods, services and information for the prevention and treatment of STDs, including HIV/AIDS, are available and accessible.230
General Comment 14 of the Committee on Economic, Social and Cultural Rights on the right to the highest attainable standard of health says clearly that the committee interprets the right to health as defined in article 12.1, as an inclusive right extending not only to timely and appropriate health care but also to the underlying determinants of health such as access to health related education and information, including on sexual and reproductive health. A further important aspect is the participation of the population in all health related decision-making at the community, national and international levels.231
On nondiscrimination and equal treatment, General Comment 14 states:
By virtue of article 2.2 and article 3, the Covenant proscribes any discrimination in access to health care and underlying determinants of health, as well as to means and entitlements for their procurement, on the grounds of race, color, sex, language, religion, political or other opinion, national or social origin, property, birth, physical or mental disability, health status (including HIV/AIDS), sexual orientation and civil, political, social or other status, which has the intention or effect of nullifying or impairing the equal enjoyment or exercise of the right to health. The Committee stresses that many measures, such as most strategies and programs designed to eliminate health-related discrimination can be pursued with minimum resource implications through the adoption, modification or abrogation of legislation or the dissemination of information. The Committee recalls General Comment No. 3 paragraph 12, which states that even in times of severe resource constraints, the vulnerable members of society must be protected by the adoption of relatively low cost targeted programs.
With respect to the right to health, equality of access to health care and health services has to be emphasized. States have a special obligation to provide those who do not have sufficient means with the necessary health insurance and health care facilities, and to prevent any discrimination on internationally prohibited grounds in the provisions of health care and health services, especially with respect of the core obligations of the right to health. Inappropriate health resource allocation can lead to discrimination that may not be overt. For example investments should not disproportionately favor extensive curative health services, which are often accessible only to a small, privileged fraction of the population, rather than primary and preventative health care benefiting a larger part of the population.
Therefore access to health cannot be limited on the basis of discrimination or cost. All people must be able to access health care, regardless of gender, ethnicity, sexual identity, poverty or other status. Zimbabwes constitution does not guarantee the right to health but reference is made to health care.232
The government of Zimbabwe has failed to ensure that the most vulnerable members of society such as poor PLWHA are adequately protected through its user health fee exemption policies. Nor has it created more affordable health programs to increase effective access to health care for the increasing number of poor people living with HIV/AIDS. Restrictions that are not necessary such as those placed on CD4 tests and user fee exemptions that are often randomly applied and subject to review, violate the Zimbabwes governments obligations to recognize and fully realize the right to health.
Access to information about HIV/AIDS has been reaffirmed as a human right. Article 21 of the ICCPR recognizes that everyone has the right to seek, receive and impart information of all kinds.233 Access to information is also essential to secure the right to the highest attainable standard of health,234 and accurate information is necessary to allow persons to make decisions about their personal and private lives. Accurate information should be available, accessible, and in a format that is relevant to the target audience in order to ensure its maximum impact.
The United Nations International Guidelines on HIV/AIDS and Human Rights, while not binding, similarly call on states to take positive steps to ensure access to adequate health information and education, including information related to HIV/AIDS prevention and care.
Taking these requirements into account, the government of Zimbabwe in order to meet its obligations, should be ensuring that people are informed that a CD4 count is not required to access ART, and ensuring that government hospital staffs are aware that the requirement of a CD4 count is not necessary to provide treatment. PLWHA cannot exercise their right to treatment if the government fails to inform them that a CD4 test is not necessary before commencing ART, and are barred by third parties from accessing ART without the test. The government must provide information to the public on the criteria for user fee exemption and on criteria for applying for informal trading licenses.
Article 23 of the Universal Declaration on Human Rights sets out that Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment. This is articulated as a binding obligation in article 6 of the ICESCR which calls on state parties to recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts
The government of Zimbabwe has an obligation to provide its citizens with opportunities to earn a livelihood in whatever field they choose including the informal sector. The right to work in the informal sector is especially important in the current environment of high unemployment in the country.
The UN Commission on Human Rights has emphasized that violence against women and girls increases their vulnerability to HIV/AIDS, that HIV further increases womens and girls vulnerability to violence and that violence against women and girls contributes to the conditions fostering the spread of HIV/AIDS.235
According to the CESCR Committee, the failure to prosecute perpetrators of domestic violence, to discourage harmful traditional practices both in law and in fact, and to adopt a gender-sensitive approach to health, amount to violations of a states obligations under CEDAW.236
The CEDAW Committee recommends that States intensify efforts in disseminating information to increase public awareness of the risk of HIV infection and AIDS, especially in women and children, and of its effects on them.237 The Committee further recommends that HIV/AIDS programs give special attention to the rights and needs of women and children, and to the factors relating to the reproductive role of women and their subordinate position in some societies which make them especially vulnerable to HIV infection.238
The HIV/AIDS and Human Rights: International Guidelines, issued in 1998 by the Office of the U.N. High Commissioner for Human Rights and UNAIDS, highlight the need for legislation addressing discrimination and violence against women including harmful traditional practices.239 The 2001 U.N. General Assembly Special Session (UNGASS) Declaration of Commitment on HIV/AIDS emphasized the need to integrate the rights of women and girls into the global struggle against HIV/AIDS.240
While Zimbabwe has made some efforts to incorporate the vulnerable position of women and children into its HIV/AIDS policies, and has legislated against some harmful practices, it has failed to incorporate key provisions of CEDAW that protect women from gender based violence and discrimination. Zimbabwe has an obligation to take all appropriate measures to eliminate violence against girls and women more generally, and to ensure their access to health and social services without discrimination. The government has also failed to adequately address the issue of property-grabbing that continues to take place despite amendments to inheritance laws, in clear violation of the human rights to nondiscrimination and equality under the law.
International Covenant on Economic, Social and Cultural Rights (ICECSR), adopted December 16, 1966, G.A. Res. 2200A (XXXI), 993 U.N.T.S. 3 (entered into force January 2, 1976), acceded to in Zimbabwe in May 1991. Article 12 of the ICESCR states that state parties to the covenant should take steps to the present Covenant to achieve the full realization of this rights which shall include those necessary for, the prevention, treatment and control of epidemic, endemic, occupational and other diseases; and the creation of conditions which could assure to all medical service and medical attention in the event of sickness.
 CEDAW, adopted December 18, 1979, G.A. Res. 34/180, U.N. Doc. A/34/46, entered into force September 3, 1981 and acceded to by Zimbabwe on May 13, 1991, article 12.
 African Charter on Human and Peoples Rights, adopted June 27, 1981, OAU doc. CAB/LEG/67/3rev.5 21 I.L.M. 58 (1982) (entered into force October 21, 1986), ratified by Zimbabwe in 1986, article 16.
 Committee on Economic, Social and Cultural Rights (CESCR), The Right to the Highest Attainable Standard of Health, (Art 12), E/C.12/2000/4, (August. 11, 2000) General Comment no. 14, on the normative content of article 12 of the ICESCR, para 9.
 General Comment No. 14: The right to the highest attainable standard of health (art. 12), Adopted at the 22nd Session of the Committee on Economic, Social and Cultural Rights, E/C.12/2000/4, August 11, 2000.
 Constitution of Zimbabwe, 1979.
 International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, (entered into force March. 23, 1976), acceded by Zimbabwe, May 13, 1991, article. 19.
 See CESCR, General Comment no. 14. para. 12.
 U.N. Commission on Human Rights 2004/46, resolution on the Elimination of Violence against Women, http://www.unhchr.ch/html/menu2/7/b/women/2004-46.doc (accessed July 24, 2006)
 CESCR Committee, General Comment No. 14, The right to the highest attainable standard of health, paras. 51 and 52.
 CEDAW Committee, General Recommendation 15, Avoidance of discrimination against women in national strategies for the prevention and control of acquired immunodeficiency syndrome (AIDS), (Ninth session, 1990), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI\GEN\1\Rev.1 at 81 (1994), (contained in document A/45/38), recommendation (a).
 Ibid., recommendation (b).
 Office of the United Nations High Commissioner for Human Rights and the Joint United Nations Programme on HIV/AIDS, HIVAIDS and Human Rights: International Guidelines (from the second international consultation on HIV/AIDS and human rights, 23-25 September 1996, Geneva,) U.N. Doc. HR/PUB/98/1, Geneva, 1998.
 United Nations General Assembly, Declaration of Commitment on HIV/AIDS, (Twenty-sixth special session), U.N. Doc. A/RES/S-26-2, August 2, 2001, para. 61.