Is South Africa implementing the recommendations of a major United Nations report?

“The law alone cannot stop AIDS. Nor can the law alone be blamed when the HIV responses are inadequate. But the legal environment can play a powerful role in the well-being of people living with HIV and those vulnerable to HIV.”

The law plays a major role in South Africa’s response to social problems, including how we deal with the HIV epidemic. As well as enabling access to tangible goods like life-saving treatment the law can also facilitate access to less tangible social goods like an environment in which the dignity of people with HIV is protected.

But the law can also harm those affected by HIV. It can criminalise an intimate part of their lives, creating fear and stigma, which in turn obstruct access to treatment. Laws can also perpetuate power imbalances and social customs that make people more vulnerable to HIV infection.

What is the Global Commission on HIV and the Law?

The United Nations Development Programme’s Global Commission on HIV and the Law (‘the commission’) is an independent body made up of leading experts and advocates in HIV, public health, law and development. South African Constitutional Court Judge Justice Edwin Cameron is a former commissioner. Jonathan Berger, formerly of SECTION27, is part of a technical task team that supports the commission’s work.

A landmark report

The commission recently published a flagship report titled “HIV and the Law: Risks, Rights & Health”, which aims to understand how the legal environment can affect a country’s response to HIV. The publication makes recommendations in several areas that we will discuss in this article.

The report is a valuable instrument in our fight against HIV. It gives South Africa an opportunity to measure its own response to HIV against the best-practice identified in the document. More specifically, we can use this report to decide whether our National Strategic Plan on HIV, STIs and TB 2012-2016 (NSP) meets requirements when it comes to HIV and the law. As we will see below, in some respects we are doing well, and in others we are lagging behind.

Discrimination

Discrimination and stigma remain significant barriers to a truly effective HIV response. Yet over 123 countries have legislation that prohibits HIV-based discrimination and makes provision for protecting people who are vulnerable to the disease. South Africa is one of these countries. Our laws and policies are pretty strong on fighting discrimination, but their implementation is weak. A combination of bigotry, inadequate resources and a lack of political will lie behind this problem.

The commission recommends several ways to combat discrimination, calling on countries to create legal environments that protect and promote human rights and access to justice. The report urges nations to explicitly outlaw discrimination on the basis of HIV status. Countries are encouraged to guarantee legal protection for people with HIV as well as for key populations (see below). Furthermore, the authors appeal to civil society, the private sector and the international community to hold governments to account for their commitments to human rights.

[box]The mood of these recommendations is echoed in the NSP’s Strategic Objective 4 (SO4). The NSP recognises that discrimination and stigma can undermine South Africa’s response to HIV. The plan calls on government as well as private partners to put in place mechanisms to prevent discrimination. Where discrimination does occur, the NSP requires us to ensure access to justice for those whose rights are infringed.[/box]

Criminalisation of HIV transmission, exposure and non-disclosure

Chapter 2 of the report deals with the thorny issue of criminalising HIV transmission, exposure and non-disclosure. In more than 60 countries it is still a crime—under either HIV-specific statutes or general criminal laws—to expose a person to HIV or to transmit the virus. South African law does not specifically criminalise deliberate transmission, exposure or non-disclosure of HIV between two consenting adults in a sexual relationship. However, in principle such behaviour falls under the scope of common law crimes that range from attempted murder to assault.

The report argues that applying such laws to HIV exposure is counterproductive. Firstly, criminal sanctions discourage people from getting testing or treated for HIV. If people know that they could be punished for exposing others to the virus, they might choose not to investigate their HIV status. Of course, the irony is that an HIV-positive person on effective treatment poses a lower transmission risk than someone who has not been diagnosed.

Secondly, there are many practical difficulties in applying these laws. For example, the near-impossibility of proving the source of an HIV infection means that criminal sanctions often focus on exposure to HIV. The end result is that laws tend to punish people for merely having sex if there is a risk of transmission.

Finally, criminalisation also tends to punish vulnerable populations—HIV-positive women in particular—who may lack the power to negotiate safer sex. Such laws foster a destructive view that some people with HIV deserve punishment while others deserve public sympathy and treatment.

The commission proposes limiting criminalisation to the rare instances in which a person maliciously and intentionally exposes another individual with the deliberate goal of causing harm. The commission recommends the repeal of laws that explicitly criminalise HIV transmission, exposure or failure to disclose HIV status.

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The NSP does not address criminalisation directly. However, the call for criminalisation remains an issue in South Africa. In fact, politicians like the Democratic Alliance leader Hellen Zille have argued in favour of criminalisation, sparking a fierce debate in the media.

Also, certain principles of South African criminal law could be used to criminalise HIV transmission or exposure, even in cases where there is no malicious intent. While there have been very few successful prosecutions of such cases, this by no means reflects government policy. South Africa needs to adopt a clear position on the criminalisation of HIV transmission that acknowledges how counterproductive a specific criminal law can be for our HIV response.

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Key populations

In the report, ‘key populations’ refers to groups of people who are at a particularly high risk of HIV infection, such as sex workers, migrants, and lesbian, gay, bisexual and transgender (LGBT) individuals. The commission recognises that these populations face stigma and discrimination, often at the hands of state agents. These violations can leave people even more vulnerable to HIV while also acting as barriers to treatment. Some countries further compound the problem by treating key populations as criminals.

The commission calls for an end to police brutality against key populations and for support programmes to reduce the stigma and discrimination that they suffer. The authors also recommend an approach to key populations that focuses on public health as opposed to punitive criminal law. This would allow access to health services for drug users; sex workers and their clients; men who have sex with men; transgender persons; prisoners and migrants. In addition, the report recommends that migrants receive the same health services as citizens.

[box]The NSP recognises the plight of key populations and tailors interventions for each strategic objective to their needs. The UNDP report however goes further. While the NSP is at best ambiguous about criminalising certain groups, for example sex workers and drug users, the report calls for the decriminalisation of these key populations. It points out that criminalisation is incompatible with a public health and human rights approach to dealing with HIV.[/box]

Women and Girls

HIV disproportionately affects women and girls. In Africa, females make up 60% of the HIV-positive population. Many of these women are denied property rights or subjected to violence, forced abortion and sterilisations. Furthermore, traditional customs often perpetuate the oppression of women and increase HIV risk through practices such as female genital mutilation and widow inheritance.

The commission recommends that states prohibit all forms of violence against women and ban cultural practices that make them more vulnerable to HIV. The report also calls for all women and girls to have access to sexual and reproductive health services.

[box]These recommendations are in line with the NSP. In Strategic Objective 1, the NSP identifies gender inequality as one of the social factors that fuel the HIV epidemic. Sub-objective 1.3 specifically deals with interventions to address gender inequities and gender-based violence.[/box]

Children and Youth

The commission recognises that although children are vulnerable, they can also be powerful agents for change in the fight against HIV and stigma. However, the authors found that governments continue to ignore the reality of the lives—and sexual lives—of young people. This is certainly true in South Africa.

Many children, especially girls, are left to run households at the expense of their education. This harms their economic prospects and compounds their vulnerability to HIV. The authors recommend that countries take measures to reduce harm to young people, ensure access to age-appropriate sex education, and offer them comprehensive reproductive and HIV services. To do this would curb the rates of HIV and other sexually-transmitted infections (STIs).

[box]SO1 of the NSP recognises the vulnerability of young people to HIV infection and commits to tackling the conditions that give rise to it. The NSP however does little to address the controversial reality that many young people are sexually active but lack the knowledge or means to protect themselves from HIV. The plan also says nothing about the problematic aspect of criminalising sex between young people.[/box]

Intellectual Property law and the global fight for treatment

The commission found that a growing body of international trade law and intellectual property (IP) protections is limiting the production of low-cost generic drugs. This bottleneck restricts access to HIV treatment and other life-saving drugs.

The report concludes that current laws do not promote the access and innovation that serve the medical needs of the poor. The authors encourage countries to make full use of existing flexibilities in international law to advance access to medicines. Despite our high disease burden South Africa has failed to use the most important of these flexibilities.

[box]Some drafts of the NSP contained specific commitments to reforming South Africa’s intellectual property laws in line with the commission’s recommendations. However, at the last moment these commitments were cut from the document. Even though the current NSP does not mention reform of these laws, a policy process is now underway that may lead to changes in South Africa’s IP laws. (Read more about that policy process on page 18.)[/box]

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Why the report matters

• The report draws on a wide range of practices from many countries. It thus reflects a wealth of experience about what works and what doesn’t.
• Thanks to the independence of the commission, its report offers a frank assessment of various HIV responses. The document is free of political concerns and therefore makes bold recommendations. A few contrasts with the NSP make this clear. For example, it is evident that the decriminalisation of key populations is the only policy consistent with a public health approach to HIV. The NSP is alive to this fact. Yet, South Africa’s plan falls short of calling for the decriminalisation of sex work. Instead, it deflects the issue, calling for ‘continued public deliberation’.
• The document can serve as a neutral reference point on some of the more difficult topics. Where the NSP is silent on critical issues such as intellectual property law or the criminalisation of HIV transmission or exposure, the report can be used to put these concerns back on South Africa’s HIV agenda.
• Because the NSP had to narrow its focus in order to function as a strategic plan, its content is necessarily limited. The report’s wider perspective can thus serve as a useful complement to the NSP.

By Metumo Shilongo, a researcher with SECTION27.

Sources: Global Commission on HIV and the Law, ‘Risks, Rights and Health’ ‘(2012), http://www.hivlawcommission.org/index.php/report; Section 6(1) of the Employment Equity Act, 55 of 1998 and Section 34(1) of the Promotion of Equality and Prevention of Unfair Discrimination Act, 4 of 2000; S v Nyalungu 2005 JOL 13254 (T) and South African Law Reform Commission, Project 85, ‘Fifth Interim Report of certain aspects of the law relating to AIDS’ (2001).