Eminent African Judges Dialogue on HIV related stigma and Discrimination

Judges on HIV
Judicial Training Institute Director Justice Prof. Joel Ngugi leads deliberations during the dialogue conference on HIV, human rights and the law in Eastern and Southern Africa. With him are (from left) Kelin’s Board chairman Ambrose Rachier, South African Judge of the Constitutional Court, Justice Edwin Cameron, UNDP Resident representative/UN Resident Coordinator Nardos bekele-Thomas and Commissioner Catherine Mumma of the Commission for the Implementation of the Constitution

As the HIV epidemic continues to affect millions of people in developing countries especially in Africa, judiciary is now being seen as having a powerful role in ending stigma and discrimination for people living with HIV and Aids. During the first ever dialogue on HIV, human rights and the law in Eastern and Southern Africa, held in Nairobi, delegates who included judges, magistrates, lawyers, civil society groups  and people living with HIV from various African Countries heard how punitive laws and practices deny people living with HIV basic rights and access to justice.

The meeting, convened by the United Nations Development Programme (UNDP), United Nations Programme on HIV/AIDS (UNAIDS), Judicial Training Institute and Human rights NGO Kelin, discussed how populations that are at highest risk of getting HIV including sex workers, people who use drugs and men who have sex with men often face stigma, discrimination, arrest and even violence since the legal issues raised, touch upon societal values and notions that are still controversial in many countries.

South African Judge of the Constitutional Court, Justice Edwin Cameron, gave his personal testimony of how difficult it was for him to deal with stigma and discrimination and wondered how much worse it was for the poor and marginalized women who have no easy access to treatment. “At least for me I was able to buy my medication, but I kept thinking of those women with HIV who have been disinherited and discriminated against. Where do they get help from?”

“HIV has enabled us to talk openly about sex, which previously was a taboo. We need to get everyone involved if the fight against HIV is to be won” said John Kamigwi acting Director of the National Aids Control Program in a speech delivered on his behalf by NACC head of Strategy, Ms. Regina Ombam.

Acknowledging their critical role in interpreting the law and finding a balance to uphold the rights of people living with HIV, the judges asserted that the critical role of the judiciary is in ensuring that the application of the law is based on scientific evidence on HIV and uphold the principles of justice for all. They say that the law can open the doors to justice by ensuring access to property and protection from all forms of violence

The Kenyan Courts, have already developed enabling jurisprudence on HIV-related issues, such as non-discrimination, autonomy on testing, confidentiality, right to liberty, and most recently access to affordable medicines. The country has also established HIV & AIDS Equity Tribunal which is a novel initiative and a pioneer globally. There have also been progressive decisions from other African countries such as Botswana, Namibia, South Africa and Uganda.

While delivering the key note address, UNDP Resident Representative and UN Resident Coordinator Nardos Bekele-Thomas lauded judges who have upheld the rights of people living with HIV saying “these judges have reminded us that the true test to an independent judiciary is its ability to protect all individuals, including those whose rights and life would otherwise be overridden.” She said “ending new HIV infections and deaths by AIDS will not be possible without attention to the social and legal contexts in which people live, and the challenges that they face in fulfilling their health, dignity and security.”

Most African Countries have made great strides in reducing the spread of HIV “Latest evidence shows that access to HIV treatment not only enables people living with HIV to live long and productive lives but also significantly reduces risk of HIV transmission.” Said the UNAIDS Country Coordinator Ms. Maya Harper. “We need to widen access to prevention and health care services, improve the quality of treatment, enhance social support for people affected by the epidemic, and protect human rights that are vital to survival and save the public money.” She said

Some of the major high court cases that have had impact on HIV response in Kenya include:

·         Non-discrimination; The case of Midwa v Midwa [2000] 2 EA 453 where the husband petitioned for divorce after his wife tested HIV positive and brought proceedings to have his wife vacate their jointly-owned matrimonial home where they were living with their two children on the grounds that she posed a grave risk to his life and the life of the children. The wife was ordered to move to the servant’s quarter. On appeal, the court considered the law of custody and the fact that the wife was still strong and healthy despite being HIV positive for some five years and ordered that the wife be put back in the matrimonial home. 

·         Testing, autonomy and confidentiality: The case of   J. A. O. vs. Home Park Caterers & Metropolitan Hospital HCC No. 38 of 2003 Nairobi. Where the court upheld the right to work, non-discrimination, autonomy privacy and confidentially by way of a consent judgment, in a case of a widow who was wrongfully dismissed from employment on the basis of her HIV status after she was tested without her consent and the results of her HIV status shared with her employer by the doctor without her consent.

·         Right to liberty: The case of SMG vs. Republic Misc., CR, APP. NO. of 24 of 2011 HC. EMBU. Where the High Court in Embu reversed a criminal decision that had seen a 54 year old man living with HIV and suffering from TB being sentenced to eight months imprisonment for failing to adhere to his medical treatment.

Access to affordable medicines: The recent case of P.A.O and 2 others vs. The Attorney General of Kenya Petition No. 409 of 2009 Nairobi. Where the high court upheld the right to health by declaring the provisions of Section 2 and 32 of the Anti-counterfeit Act unconstitutional. The judgment extensively discussed the issue of the right to health in the context of access to medicines.