Working with African judges to protect rights of people living with HIV

Oct 10, 2016

The third Judges' Forum was held in Johannesburg, South Africa in June. Photo: UNDP Africa

More than 30 judges from 14 African countries convened in Johannesburg, South Africa 15­–17 June this year for the third annual Regional Judges’ Forum to discuss HIV and tuberculosis (TB)-related jurisprudence as part of an ongoing initiative to sensitise senior judges and uphold the rights of people living with HIV in Africa.

“The judiciary must be available for the minority, and in adjudicating cases on minority issues, we must be guided by information, by science, by law, by consideration of justice. If we do so, then we shall have served our purpose”, said Botswana High Court’s Justice Key Dingake, one of the participants at the UN Development Programme (UNDP)-supported meeting.

During the three-day forum judges reviewed and discussed relevant cases from Africa about disability rights, transgender issues, statutory rape, and using scientific evidence in countries where advanced HIV testing is not available. The judges, half of whom were women, came from supreme and high courts in Botswana, Democratic Republic of the Congo, Ghana, Kenya, Lesotho, Malawi, Mauritius, Nigeria, Senegal, South Africa, Swaziland, Uganda, Zambia and Zimbabwe.

The initiative is particularly relevant for the continent. According to UNAIDS, despite new HIV infections declining by 14 percent between 2010 and 2015, east and southern Africa accounts for 46 percent of global total new HIV infections, with some 19 million people living with HIV in 2015.

The members of the Judges’ Forum have been advocating a human rights-focused approach in African jurisdictions and sharing the information received from the annual meetings since the Forum’s inception in 2013. The Forum was initiated by the judges themselves and established following extensive research during 2010 and 2012 by the Global Commission on HIV and the Law, an independent body convened by UNDP, which examined links between legal environments and HIV responses.

The Commission found that an epidemic of bad laws in several countries around the world fuels the spread of HIV, resulting in human rights violations and costing lives. In 2012, same-sex activity was a criminal offence in 78 countries. In around 60 countries it is a crime to expose another person to HIV or to transmit it, especially through sex. This has led to convicting people living with HIV under HIV-specific or general criminal laws. Such laws discourage people from getting tested or treated, in fear of being prosecuted for passing HIV to lovers or children. The Regional Judges’ Forum aims to turn the tide in Africa.

The judges have been resource persons to train paralegal staff and clerks in courts in Kenya. Some of the Forum members were part of the High Court of Kenya that ruled as unconstitutional the criminalisation of HIV transmission in law. In Botswana a member of the Forum was part of a ruling that entitled HIV and AIDS treatment to foreign prison inmates. Both of the rulings are being implemented.

Particular need for learning about the science of TB and HIV

The meetings are owned and planned by the judges themselves, the gatherings convening more than 30 High and Supreme Court judges, over half of them being women, every year. The meetings have focused on specific topics such as human rights of sex workers, gay men and other men who have sex with men (MSM), transgender people, prisoners, women and girls, and sexual and reproductive health and rights.

An important area of interest for judges in their annual meetings is related to the science of TB and HIV transmission, prevention and treatment. To respond to the judges’ queries, HIV clinicians and scientists have been brought in to explain HIV transmission and treatment science, and HIV and TB coinfection.

The judges have been able to hear from and interact with sex workers, people living with HIV, transgender people, and other judges who have made ground-breaking rulings regarding HIV and human rights. Through case law discussions, the judges can compare cases between different African jurisdictions. UNDP has also created and maintains a legal database for the Forum that includes judicial decisions from around the world, relevant legislation, studies, international treaties, and scientific information on HIV and TB prevention, treatment and care.

The Forum was initially supported by the UNDP with funding from the Swedish International Development Cooperation Agency, and is now funded by the Global Fund to Fight AIDS, Tuberculosis and Malaria as part of a three-year US$10.5 million Africa Regional Grant on HIV (Removing Legal Barriers) for which the UNDP is the Principal Recipient.

For the fourth Judges’ Forum next year members will discuss case studies on issues faced by lesbian, gay, bisexual and transgender (LGBT) people and explore human rights violations on LGBT people by law enforcement agents.

The Judges’ Forum responds to several Sustainable Development Goals, such as good health and well-being and reduced inequalities, by supporting efforts to reduce vulnerability to HIV and mitigate its adverse social and economic impacts, and to advance gender equality.

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