Judges join AIDS fight
JOHANNESBURG, 11 December 2009 (PlusNews) - Twenty-five years into the HIV epidemic, a multitude of laws, international guidelines and government commitments have been drafted to ensure the rights of people living with HIV, but few cases have found their way into the courts, and even fewer have led to successful outcomes.
"There is an epidemic of discrimination and human rights violations that exists around HIV," said Mark Heywood, director of the South Africa-based AIDS Law Project and deputy chairperson of the South African National AIDS Council. "If we don't protect the rights [of people living with HIV], they will go underground and it will be very difficult for us to control this epidemic."
Heywood was addressing senior judges from more than 15 sub-Saharan countries at the opening of a two-day meeting in Johannesburg to discuss how the judiciary could play a more significant role in the HIV response.
The 30 jurists attending will not only review HIV-related judgements from the region and meet local NGOs working on HIV and the law, but will learn about the latest science around HIV.
Ghana's Chief Justice, Georgina Wood, noted that a survey among her country's judiciary had revealed worrying levels of ignorance about how HIV was transmitted and apathy towards people living with the virus.
Susan Timberlake, Senior Advisor on Human Rights and Law at UNAIDS, agreed: "There is a lot of work to be done in educating the judiciary." UNAIDS organized the meeting in partnership with the UN Development Programme, the International Association of Women Judges, and the International Commission of Jurists.
Recent reports submitted to the UN on progress in reaching the goals of the 2001 Declaration of Commitment on HIV/AIDS indicated that only 45 percent of African countries had done any training to sensitize their judiciaries about HIV/AIDS.
Although 60 percent of the countries in Africa had passed laws to protect the rights of people living with HIV, Heywood noted that a much smaller proportion had mechanisms to help HIV-positive people obtain access to legal assistance. Affordability, geographic location, gender and education were all factors preventing them from taking cases to court.
"Court procedures can be intimidating for many applicants," said Heywood. Simplifying some of those proceedings, and reducing the cost and duration of trials could improve the situation, but would be of little use unless court orders were enforced.
Heywood cited the example of a 2006 South African judgement ordering access to antiretroviral treatment for HIV-positive prisoners. "The situation facing prisoners with AIDS in South African prisons is no better today than it was two years ago, despite the existence of clear court orders about the duties of the prison services to provide people with access to treatment."
In many African countries the legal system has actively worked against efforts to contain the spread of HIV by marginalizing and discriminating against the groups most vulnerable to infection.
Justice Georgina Wood said rates of HIV infection among men who have sex with men were rising rapidly in Ghana, but the criminalization of homosexuality prevented them from accessing HIV services, and encouraged the risky practice of maintaining female sexual partners to avoid detection.
In Uganda, where homosexuality is also illegal, a draft bill
currently being debated would create the crime of "aggravated homosexuality", for which the death penalty could be imposed if the offender was HIV-positive or had sex with anyone under the age of 18.
"We're working very hard with the Ugandan authorities to try to get this law removed from consideration," Timberlake of UNAIDS told IRIN/PlusNews. She added that while judges were not responsible for passing legislation, "They can be powerful community leaders if they're willing to speak out."
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