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The Human Rights Implications Of Hiv/aids In The Enforcement Of Law In Sub-Sahara Africa: The Ghanaian Example

1   An Overall Picture of HIV/AIDS Prevalence in Sub-Sahara Africa

No where has the impact of Acquired Immune Deficiency Syndrome / Human Immunodeficiency Virus (HIV/AIDS) been more severe than Sub-Saharan Africa. Twenty-five years ago, AIDS was unknown in sub-Sahara Africa, yet AIDS is now the number one killer disease in region, surpassing malaria. According to United Nations  records, an estimated 3.2 million adults and children in Sub-Sahara Africa become infected with HIV during the year 2003 alone and additionally 2.3 million people died of AIDS-related illness in the same year. It is estimated that 29.4 million people are currently living with HIV/AIDS in Sub-Saharan Africa, that is, two-thirds of HIV/AIDS cases reported globally. At the national level, the 21 countries with the highest HIV prevalence are in Africa. In at least 10 African countries, prevalence rates among adults exceed ten percent. Also at the individual level, the arithmetic of risk is horrific. In Zimbabwe and Botswana, one in four adults carries the virus. A child born in Zambia or Zimbabwe today is more likely than not to die of AIDS. It is also estimated that, there are 13 million children orphaned by AIDS worldwide, 10 million of them in Sub-Saharan Africa.

 Malaria still claims about as much as many African lives as AIDS, and preventable childhood diseases still kill millions of children. What sets AIDS apart, however, is its unprecedented impact on national and regional development. Because it kills so many adults in the prime of their working and parenting lives, it decimates the workforce, fractures and impoverishes families, orphans millions of children, and shreds the fabric of communities.

It is undisputed fact that, the cost HIV/AIDS imposes on countries forces them to make heartbreaking choices between today's and future lives, and between health and dozens of other vital investments for development. Given these realities, African governments and their partners are taking every possible step to prevent further HIV infections and to care for and support the millions of Africans already infected and affected. [See, World Bank Report on HIV/AIDS in Africa, 2003 at www.aidsandafrica.com/aids.] Also political declarations within the United Nations [Political Declaration on HIV/AIDS, Res. S-26/2, Res. 60/262; Res. 55/5, Res. 60/] and other conventions such as the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW)  are made in which countries reaffirm their implementation and commitment on HIV/AIDS.

 Disappointingly, the national and international legal regimes on HIV/AIDS have almost forgotten of protection of the fundamental human rights of HIV/AIDS victims and also the individual governments have become insensitive to the human rights implications in the enforcement of national laws and fulfillment of their international obligations under international human rights laws already in existence before the HIV/AIDS was known.

 In addition to the fundamental rights and freedoms contained in the constitutions of sub-Sahara African states some of them have a special chapter in their constitutions called the Directive Principles of State Policy (DPSP) which provide for core principles around which national politics and economic life should evolve. There has been in some of these state ongoing debates as to whether the provisions of DPSP are justiceable in the same measure as other provisions on Fundamental Human Rights and Freedoms contained in the same constitution (for example, as in chapter 6 of the 1992 Constitution of Ghana).

Some argued that these are political questions which may show the competence or otherwise of governments rather than legal questions to be determined by courts and as such the courts can not compel their governments or institutions to fulfill requirements under such provisions. Even so, there are at least two good reasons for including them in a constitution: First, DPSP enunciate a set of fundamental objectives which people expect all bodies and persons that make or execute public policy to strive to achieve. The second justification for including directive principles in the constitution is that taken together, they constitute, in the long run, a sort of barometer by which the people could measure the performance of their government. In effect they provide "goals for legislative programmes and a guide for judicial interpretation" See, [paragraph 95 of the Draft Report of the Constitutional Proposals]. In considering the justiceability or otherwise of the provisions contained in the DPSP see, [the Ghanaian cases of New Patriotic Party v. Inspector General of Police (SC 4/93), the Council of Indigenous Business Association (1997) case; and Ghana Lotto Operators Association & 6 Others (2008).]

There have been ongoing debates in the African regional forums as to whether a mandatory duty is imposed on States, for which they have no discretion, to secure the maximum welfare, freedom and fundamental human rights to every person including HIV/AIDS victims within their sovereign territories. And in countries such as South Africa, Namibia and Botswana there is the movement towards comprehensive privacy laws to remedy past injustices and to ensure that the laws are consistent with international law though there are differences in the level of protection in each of these States. See, [James Michael, Privacy and Human Rights, UNESCO 1994, at 1].

 2  Equality and  Non-discrimination

Stigmatization is one of the human rights violations which people living with HIV and AIDS face mainly because some sections of society still associate the disease with immorality. People with AIDS therefore often find themselves discriminated against thereby undermining their fundamental human rights and freedom.

 Article 2 of the Universal Declaration of Human Rights states:

Everyone is entitle to all the rights and freedoms set forth in this Declaration without discrimination of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. [G A Resolution 217A (III) G.A.O.R, 3rd session, Part I Res. (1948) at 71]

 Article 2(2) of the International Covenant on Economic, Social and Cultural Rights embodies similar provision. [See, 999 U.N.T.S 3 U.K (1977). The ICESCR protects ‘second generation' human rights (mostly positive and susceptible only of progressive and differential compliance as each state's economy permits)]

 These two documents, among others to which most sub-Sahara African States are signatory including Ghana, prohibit discrimination of any kind which by analogy includes HIV/AIDS status. Constitutions of these States guarantee protection from discrimination on the same grounds provided in the international instruments but do not list HIV status as a ground for non-discrimination. However, non-discrimination on ground of HIV status may be considered to be included in the wording ‘other status' as expressed in some constitutions, for example, in section 20(1) of Malawian Constitution.

One could also argue that people living with HIV may be protected under the right to equality and non-discrimination on ground of ‘social status' as expressed in some other constitutions, for example, under Article 7(2) of the Constitution of Ghana or Article 35 of the Constitution of Mozambique. Even where the constitutional provision does not include HIV/AIDS as an explicit ground or any of the above status, it can be read into ‘disability' or ‘other grounds' as in Section 9(3) of the South African Constitution. It is important that HIV status in cases dealing with HIV/AIDS or AIDS-related discrimination be analyzed as an analogous ground rather than a disability.

There is also no special legislation in the sub-Sahara African States guaranteeing the right to equality and non-discrimination of people living with AIDS. In fact, pieces of legislations in relation to HIV/AIDS have been reviewed in Zambia in recent past and these include the Penal Code and the Public health Act. Ghana, Nigeria and other West African States need to make such legislative amends. There are existing national policies and charters in some of these countries but no steps have been taken to translate these into reality.

Domestication of HIV/AIDS treaties have been blocked by internal systems in different countries. In some countries there is no need for domestication because the constitution allows. For example, Article 144 of the Namibian Constitution states ‘unless otherwise provided for, the general rules of public international law and international agreements binding upon Namibia under this Constitution shall form part of the law of Namibia.' However, countries such as Zambia, Ghana and Nigeria favour indirect transformation where parliamentary ratification is required.

There are, however, some obligations of immediate effect for all parties to the International Covenant on Economic, Social and Cultural Rights (ICESCR), in particular the understanding of the terms ‘guarantee' and ‘ensure' non-discrimination and equal treatment respectively, that is, Article 2(2) and  2(3) of the ICESCR. It would be argued here that to the extent that an article in the Covenant guaranteeing a particular right and detailing the steps to be taken, the obligation in respect of that right becomes an ‘obligation of conduct not one of result.' See, [goodwin-Gil, in Alston and Tomasevski (eds) and The Right to Food (1984) 9 N.Y.I.L 69, at 111.]

In the case of Makuto v. the State of Botswana (2002), the Court of Appeal set a precedent according to which HIV status could be implicitly understood as being on the list of protected grounds of discrimination despite no specific mention in the Constitution of Botswana. Article 17(2) of the 1992 Constitution of  Ghana, like in many other sub Sahara African states, has reproduce the words of the Universal Declaration and the Covenants, that a person shall not be discriminated against on grounds of gender, race, colour, ethnic origin, religion, creed or social or economic status, but without any corresponding legislations enacted.   

 People with HIV/AIDS should not be stigmatized against and should be facilitated to realize their full economic and social potential as far as their physical and mental condition permit. Whether ill or not the same rights should be administered equally by the state unless those rights are limited by law on reasonable and undiscriminating grounds.

 3. Right to Privacy

According to Edward Bloustein (1964), privacy is an interest of human personality. It protects the inviolate personality, the individual's independence, dignity and integrity. To Ruth Gavison (1980), there are three elements in privacy: secrecy, anonymity, and solitude. It is a State which can be lost, whether through the choice of the person in that State or through the action of another person. Although these definitions fall in line with jurisprudential school of thought they underpin the jus gentium. The Calcutt Committee in UK said that, ‘nowhere have we found a wholly satisfactory statutory definition of privacy.' But the committee was satisfied that it would be possible to define it legally and adopted this definition in its first report on privacy:

The right of the individual to be protected against intrusion into his personal life or affairs or those of his family, by direct physical means or by publication of information.

Privacy is a fundamental human rights recognized in the UN Declaration of Human Rights (Article 12), the International Covenant on Civil and Political Rights (Article 77) and in many other international and regional treaties. Privacy forms the basis for human dignity and other core values such as freedom of association and freedom of speech.

Article 77 of the International Covenant on Civil and Political Rights provides that no one shall be subjected to arbitrary or unlawful interference with his privacy, home family or unlawful attacks on his honour and reputation. The right to privacy encompasses obligations to respect physical privacy, including the obligation to seek informed consent to HIV testing and privacy of information including the need to respect confidentiality of all information relating to a person's HIV status.

Nearly every country in Sub-Sahara Africa that is party to the Covenant recognizes a right of privacy but nothing in the laws relating to HIV indicates that HIV status can be communicated either to a partner, spouse of the infested person or to the government or any party without prior consent of the infested person. Thus, the laws of most African States do not make HIV a notifiable condition. The most recently written or amended constitutions of South Africa, Namibia, Nigeria, Mauritius, Cote d'Ivoire, Benin, Togo Zambia and Cameroon, for example, include specific rights to access and control one's personal information. The 1992 Constitution of Ghana provides in article 15(1) that: ‘The dignity of all persons shall be inviolable.' It also states in Article 18(2) that: ‘no person shall be subjected to interference with the privacy of his home, property, correspondence or communication except in accordance with law…' (though the provision is silent on physical privacy).

The Ghanaian Constitution guarantees the right to privacy but in the context of HIV this right is expressed in the respect of confidentiality and the insistence on informed consent in testing. The National HIV/AIDS Policy and Guidelines for Expanded HIV Testing in Malawi provides for ‘beneficial disclosure' which, in exceptional cases empowers the medical practitioner or health care worker to notify the partner(s), without the consent of the source client (where a properly counseled HIV-positive individual repeatedly refuses to disclose his or her status to sexual partners)

In other countries of Africa where privacy is not explicitly recognized in the constitution, such as Angola, Mozambique, Swaziland, Tanzania, and Zimbabwe, the courts have found expressions in other provisions of international agreements that recognize privacy right.

Even with the adoption of legal and other protections, violations of privacy remain a concern. In some countries, laws have not kept up with the technology, leaving significant gaps in protections. Hence, the medical professionals, the police, the prisons officials and all other established institutions that handle cases and information on HIV/AIDS infected persons violate their privacy right without any remedies available for them. The regulatory framework for the conduct of medical test in these countries, which includes of course HIV/AIDS test, is rudimental with no protection against privacy right, risk or adverse effects from the clinical tests or to monitor the test records from beginning to the end of the process.

There is the need for ethical rules for all professionals handling HIV/AIDS affected people to generally prohibit the disclosure of medical records of patients without their consent, whether those records are in the public or private institutions. Any national law that makes HIV test compulsory under any circumstances or make HIV records publicly assessable by any means (that is, electronic) violates the right to privacy.

 4. Right to Liberty of Movement

The right to liberty of movement encompasses the rights of everyone lawfully within a territory of a Sate and freedom to choose his or her residence as well as the right of nationals to enter in and leave their own country.

Article 13(1) of the Universal Declaration of Human Rights (1948) states:

Everyone has the right to freedom of movement and residence within the borders of each State. Everyone has the right to leave any country, including his own, and to return to his country.

 This expression is repeated in article 12(3) of the International Covenant on Civil and Political Rights (1966) with an additional clause that:

The above mentioned right shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.

 Article 12(1) African Charter on Human and Peoples' Rights (1981/1986) also provides:

Every individual shall have the right to freedom of movement and residence within the boarders of a State provided he abides by the laws. Every individual shall have the right to leave any county including his own, and to return to his country. This right may only be subject o restrictions provide for by law for the protection of national security, law and order, public health or morality.

These instruments and a series of multilateral treaties concluded through the United Nations imposed obligation upon parties to this end. Ahead of the Vienna World Conference on Human Rights 1993, Asian states adopted the Bangkok Declaration 1993 and supported by African states which challenged what was perceived as the western concept of human rights. The declaration stressed the need to consider human rights in their national and regional context and emphasized the principle of respect for national sovereignty and non-interference in the international Affairs of states.

However, the universality of human rights and its place beyond the limits of domestic jurisdiction were reaffirmed by the Vienna Declaration and Programme of Action on Human Rights, 1993 which was adopted by the Vienna World Conference.

The right to liberty of movement which is embodied in the international human rights instruments is included in the constitutions of African States though HIV/AIDS is neither  explicitly mentioned in their constitutions nor in their immigration Acts. For example, Article 21(1)(g) of the 1992 Constitution of Ghana simply provides that:

All persons shall have the right to freedom of movement which means the right to move freely in Ghana, the right to leave and to enter Ghana and immunity from expulsion from Ghana.

There is no reference to restriction on the basis of HIV status. In fact, the immigration laws of these countries do not require non-nationals to be tested for HIV prior to gaining admission to these countries. However, the immigration Act of Malawi comes very close to that as it listed several categories of persons labeled as ‘prohibited immigrants' including persons infected, afflicted or suffering from a prescribed disease (which may also mean HIV/AIDS). Section 10 of Form 3-1/0033 for Namibian visa lists several diseases that should be reported to the Department of Home Affairs and these diseases include syphilis or any venereal disease, or leprosy or AIDS virus.

The National Policy on HIV/AIDS in countries such as Botswana, Cote d'Ivoire and Mali provide that there will be no restriction placed on travel by persons known, or suspected to be HIV positive in those countries and foreigners entering their country will not be required to provide proof that they are HIV negative. However, foreigners who apply for jobs with government of those countries are required to undergo tests as a condition of employment and if they test positive to HIV, they may be denied a work permit. It is always the view of governments that admission of foreigners with HIV positive may alleviate the burden upon the already limited resources of their countries. But, the denial of treatment and care services to non-nationals can jeopardize the effectiveness of the national response to HIV.

There is no public health rationale for restricting liberty of movement or choice of residence on the grounds of HIV status. According to current international health regulations, yellow fever is the only disease which requires a certificate for international travel. Any domestic law and practice that prohibit the entry into a country on grounds of HIV status or request testing as a condition for issuance of entry visa violates the right to liberty of movement provided in the international human rights instruments to which it is a party. It will be erroneous to generalize that all HIV infected visitors to a country engage or will engage in indecent practices to endanger the nationals of that country. Movement without any form of contact does not necessarily increase the epidemic.

 5  Freedom from inhuman and degrading treatment

The Universal Declaration of Human Rights as a common standard of achievement for all people and all nations provides under Article 5 that: "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.' Article 7 of the International Covenant on Civil and Political Rights (1966) made the same expression and in addition provides that ‘no one shall be subjected without his free consent to medical or scientific experimentation.'

The right to freedom from cruel, inhuman or degrading treatment or punishment can arise in a variety of ways in the context of HIV/AIDS. For example, imprisonment is punishment by deprivation of liberty but should not result in the loss of human rights or dignity. In particular the State through prison authorities owns a duty of care to prisoners including the duty to protect the right to life and access to HIV related information, education and means of preventing it.

Denial of voluntary testing and counseling in treatment trials to prisoners could constitute cruel inhuman treatment. The duty of care comprises a duty to combat prison rape and any other form of sexual discrimination or victimization that may result in the prisoners/inmates being infected with HIV. There is no public health justification for mandatory HIV testing to prisoners or for refusing inmates living with HIV/AIDS access to all activities available to the rest of the prisoners. Prisoners with AIDS should be considered for early release and given proper treatment outside prison.

 6  Conclusion

The introduction of Anti-Retroviral (ARV) treatment in Africa may have mitigated the impact of the Human Immunodeficiency virus and Acquired Immunodeficiency Syndrome (HIV/AIDS) on the individual, but the possible catastrophic aspects of the epidemic such as, economic, social, cultural and human rights have received no serious attention by individual sub-Sahara African states for some of the reasons discussed above. The national policy on HIV/AIDS has no force of law in most of these countries though it has a strong moral persuasive force. It is therefore not legally binding on these States which have the right to make their own decisions regarding a variety of HIV/AIDS-related human rights. Notwithstanding these, state parties to the human rights treaties should take steps individually and through international assistance and cooperation in a view to achieving the full realization of the rights recognized in those treaties by all appropriate means including particularly the adoption of legislative measures. It is left with these states, to guarantee that those rights discussed in the present article should be exercised in good faith and without discrimination on the basis of HIV/AIDS status.

 Acknowledgements

This article benefited from useful interactions, discussions and variety of perspectives expressed by very prominent authorities in Human Rights Issues during a series of seminar held at Pretoria University in South Africa which formed Part of the 17th All African Human Rights Moot Court Competition attended by representatives from 73 Law Faculties in Africa (from 30 June to 05 July 2008).  I am particularly grateful to Prof. Frans Viljoen, Director of Centre for Human Rights, Pretoria University. The paper also benefited from a research by the Human Rights Watch (HRW) which addressed gender inequity in Africa (Policy Paralysis: A Call for Action on HIV/AIDS-Related Human Rights Abuses against Women and Girls in Africa, (HRW 12, 2003). 

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