INTERNATIONAL HUMAN RIGHTS DAY 2016, 10 DECEMBER 2016: Activists call on leaders to protect human rights and stop imposing criminal sanctions against people living with HIV and TB

Posted by Editor on December 9, 2016


For immediate release


Activists call on leaders to protect human rights and stop imposing criminal sanctions against people living with HIV and TB

Windhoek, Namibia, 09 December 2016: On the eve of International Human Rights Day 2016, the AIDS and Rights Alliance for Southern Africa (ARASA), a partnership of 106 organisations working in 18 countries in southern and east Africa, calls on governments to curb the increasing trend of enacting and enforcing incoherent, ineffective laws that undermine human rights, including the right to health, and threaten to derail the progress made to end the twin epidemics of HIV and TB.

ARASA warns that the commitments made towards eliminating HIV and TB – including the 2016 Political Declaration on HIV and AIDS, the Sustainable Development Goals and the End TB strategy – stand on shaky foundations, unless they are supported by a human rights-based approach, including strong political will and coherence between law and science.

Although there has been some improvement in ensuring access to treatment and care for people living with HIV and TB, there is a still a long way to go in terms of aligning HIV, TB and human rights. “We cannot talk about the 90-90-90 targets without addressing the endemic human rights barriers, underpinned by the criminalisation of key population groups, including sex workers, people who use drugs, lesbian, gay, bisexual, transgender and intersex (LGBTI) people, people living with disabilities, and women. In addition, the current proliferation of HIV-specific criminal laws, which unjustly target people living with a treatable disease, are eroding the gains made in the HIV and TB responses,” said Michaela Clayton, Director of the ARASA.

The Advancing HIV Justice 2 report, published in June 2016 by the HIV Justice Worldwide partnership, of which ARASA is a member, highlights that, since 2000, 30 sub-Saharan African countries have now enacted overly broad laws related to the criminalisation of HIV transmission, exposure and non-disclosure. The Report also notes that the rise of reported prosecutions in Africa (in Botswana, South Africa, Uganda, and especially Zimbabwe), along with the continuing, growing number of HIV criminalisation laws on this continent, is especially alarming. “It’s ironic that HIV criminalisation began in sub-Saharan Africa just as the commitment to HIV treatment scale-up was envisioned at the Durban 2000 AIDS Conference,” says the report’s author, Edwin J Bernard, Global Co-ordinator of the HIV Justice Network. “These laws were not based on evidence but political expediency – the vision of ‘ending AIDS’ is totally incompatible with criminalising people living with HIV.”

 “In the course of the Southern Africal Litigation Centre’s work, we continue to observe significant stigma and discrimination against people living with HIV and key populations, including through inappropriate applications of criminal laws, and unhealthy, inhumane conditions of detention in southern Africa. An effective HIV and TB-response demands that governments urgently reform legal environments that enable these abuses, and advance meaningful access to justice and accountability for victims of rights violations,” said Kaajal Ramjathan-Keogh, Executive Director of the Southern Africa Litigation Centre (SALC).

Advocates around the world are working tirelessly to ensure that the criminal law’s approach to people living with HIV is consistent with up-to-date science, as well as key legal and human rights principles. But, unless investments are matched with clear programmatic articulation of human rights based approaches – essential for people living with HIV and TB and members of key and other vulnerable populations groups who currently have little or no access HIV and TB prevention, treatment, care, and support services – then the current rhetoric about the end of HIV and reduction of TB prevalence rates, will remain purely academic.  

“Disclosure of HIV happens with support, with counselling and with an enablement. This is not the reality in the places where an average person seeks health services. HIV criminalisation goes against HIV prevention”, said Dora Kiconco Musinguzi, The Executive Director of the Uganda Network on Law, Ethics and HIV/AIDS (UGANET), who have been petitioning against the Ugandan government for the amendment of the potentially harmful provisions of the HIV/AIDS control and Prevention Act 2015 which includes allowing for the disclosure of a person’s HIV-positive status, either forcefully, at the discretion of a health worker or at a’ concerned person’s’ request.

The evidence is in and the future is looking bleak: ARASA’s 2016 HIV, TB and Human Rights in Southern and East Africa (SEA) Report, which conducts scans of the legal and regulatory framework for responding to HIV, TB and sexual reproductive health (SRH) in SEA to determine whether laws, regulations and policies protect and promote the rights of all people, including key populations, continues to show that while these laws are meant to protect and promote the rights of all people, they are instead used against the most vulnerable people in our societies, not only moving them away from essential health services, but criminalising their rights to health and life.

This, while shocking figures released by the World Health Organisation in October 2016, show an estimated 10.4 million new TB cases and 1.8 million TB deaths in 2015, are a case in point. This is a 20% revision upwards from last year’s figures, showing that the TB epidemic is a bigger problem than we thought. There is no TB elimination scenario that is realistic without improved prevention. Our conventional approaches to dealing with TB need to be revisited. As eloquently stated by Honourable Michael Kirby, a Member of the United Nations Secretary-General’s High–Level Panel on Access to Essential Medicines, in his Ten commandments for TB, TB requires rights-based approaches, and a revisiting of the ineffective hostile, punitive approaches, involuntary treatment and incarceration that have been levelled against people living with TB.

 ARASA recommends that civil society and governments should work together to:

  1. Advocate to expand access to legal services for people with HIV and key populations and provide information about available legal services.
  2. Remove all overly broad and HIV-specific laws that criminalise HIV transmission, exposure and non-disclosure and criminalisation laws related to sex work, people who use drugs and gender identity for LGBTI.
  3. Expand HIV programming that is acceptable and accessible for LGBTI people, through LGBTI-friendly services.
  4. Advocate for legislation that explicitly criminalises marital rape and set a minimum age for marriage and access to Post Exposure Prophylaxis for Gender-Based Violence (GBV) survivors.
  5. Repeal laws that undermine or prohibit distribution of condoms and lubricants in prisons, including laws that criminalise sex between men in prisons




For more information, request for photographs from the launch and to arrange interviews, contact:

 Lesley Odendal, Communications Lead or +27 72 960 8991 or


The AIDS and Rights Alliance for Southern Africa (ARASA) is a partnership of 106 civil society organisations working together to promote a human rights based response to HIV and TB in southern and east Africa.

For more information on ARASA’s work and its partners, please visit: 

ARASA has also been running a countdown to International Human Rights Day, which can be found on our Facebook page: or on Twitter at _ARASAcomms

Reference notes:

 More details can be found in ARASA’s 2016 HIV, TB and Human Rights Report, available at:

 Criminalisation of HIV transmission, exposure and/ or disclosure:

A report launched by HIV Justice Worldwide, a partnership of civil society organisations working to end HIV criminalisation in June 2016, entitled, Advancing HIV Justice 2 highlights that 30 sub-Saharan African countries have now enacted overly broad HIV-specific criminal laws. Of particular concern is the failure to recognise protected sex or disclosure of HIV status as a defence to prosecution, since this is contrary to prevention messages for HIV, as well as the use of ARVs as evidence that the person with HIV must be responsible for exposing or transmitting the virus, when science tells us that someone on ARVs is very unlikely to be infectious.

Gender inequalities and gender-based violence:

In 2014, 62% of new HIV infections amongst adolescents globally are girls; in sub-Saharan Africa, this number increases to 72%. High levels of gender based violence continues to be a major concern, with 35% of women in the region have experienced either physical and/or sexual intimate partner violence or non-partner sexual violence according to the World Health Organisation (WHO). A Southern African Development Community (SADC) model law to end child marriage was developed by the Parliamentary Form, recommending that laws be consistent with international HR obligations and addressing the rights of young and pregnant girls.

Sexual orientation and gender identity:

The majority of countries in Southern and East Africa have some legislative measure that criminalises same sex sexual conduct, and many governments promote homophobia and discrimination based on sexual orientation and gender identity. However,in two significant developments, the new Penal Code in Mozambique (Law 35/2014) decriminalised sex between men by repealing the old Penal Code and in May 2016, Seychelles also repealed provisions that criminalised sex between men. While these gains are significant, we cannot lose focus from the reality that violence due to someone’s perceived or actual sexual orientation and gender identity remains an issue, even in  countries with a legislatively enabling frameworks such as South Africa. The recent murder of yet another Lesbian woman in South Africa, mere days before the International Human Rights day is a sobering reminder that despite constitutional acknowledgement, hate crimes are still a reality.

Sex worker rights and access to health care:

Out of the 18 countries reviewed, all criminalise some aspect of sex work although sex workers are identified as a key population in HIV programming. Only one country (Comoros) provides prevention information and education for sex workers. Both male and female, (including transgender) sex workers face exceptionally high levels of stigma, discrimination, violence, extortion, sexual abuse and rape in SEA from clients, intimate partners and law enforcement officials. In some countries, the possession of condoms is used as evidence of sex work by law enforcement officials, leading to arrest. The criminalisation of sex work not only fuels stigmatisation but provides significant barriers to HIV prevention efforts; cases where condoms are used as “evidence” are only one example of this.

People Who Use Drugs’ rights and access to health care:

There is evidence of increasing drug use in several countries in Africa, but countries in SEA have been slow to identify people who use drugs as a key population within their national response to HIV. Only nine countries in Southern and East Africa recognise people who use drugs as a key population, only four countries provide any harm reduction services (Mauritius, South Africa, Tanzania and Kenya) and only six countries included data on key populations within their country progress reports to UNAIDS. The lack of data in terms of People who use drugs constitute a major barrier to address the HIV epidemic. The treatment of people who use drugs as “criminals” does nothing but increase stigma and discrimination, and further hampers prevention efforts in these communities.

Access to affordable medicines:

If treatment options for second and third line HIV, TB (including drug-resistant TB), are not improved and treatment coverage is not expanded, there is a risk of rising AIDS-related deaths and HIV incidence and the development of drug-resistant strains of HIV and TB. The limited integration and use of Trade-Related Intellectual Property System (TRIPS) felixibilities within national laws and policies is a key issue in the successful decrease in the cost of drugs and improving access to medicines. A worrisome trend in the Common Market for Eastern and Southern Africa (COMESA) region has been the drive towards anti-counterfeiting legislation, which may be problematic where they broadly define counterfeits and effectively equate generics to counterfeits.


Current responses to TB fail to respect human rights and include criminalising people with TB, forcing them to take treatment or to be hospitalisation, isolating and detaining them in prisions, and subjecting them to home arrests and travel restrictions. The incidence of TB amongst miners in South Africa is estimated to be between 2500 and 3000 per 100 000 population, far above the WHO’s threshold for emergency which is 250 cases per 100 000.