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Issue 00442 |
October 21 - 27, 2006 |
issn 0856 - 9135 |
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Features |
| HIV in Africa: What are the legal issues? By Issa Toure Associate Legal Officer United Nations The General Assembly of the United Nations adopted a Declaration of Commitment on HIV/AIDS (resolution S-26/2 of 27 June 2001). The United Nations considered the HIV/AIDS issue as a global crisis requiring a global action. The Organization solemnly declared its commitment to address the HIV/AIDS crisis and to take action. It noted that in Africa the issue was particularly serious and represented a crucial challenge to human life and to the enjoyment of human rights. The organization also noted with profound concern that by the end of 2000, 36.1 million people worldwide were living with HIV/AIDS, 90 per cent in developing countries and 75 per cent in Sub-Saharan Africa Poverty, underdevelopment and illiteracy are some of the main factors which contribute to the spread of the disease. On 24 May 2006 a Special Summit of African Union on HIV/AIDS and other diseases was held in Abuja, Nigeria. The Summit noted that Sub-Saharan Africa is home to more than 60 per cent of all people living with HIV in the world. The Summit aimed at obtaining renewed commitment by African Leaders for addressing the HIV/AIDS and other major diseases. It is obvious that the international declarations, international commitments and other general principles are not sufficient: every African country needs specific and clear laws to resolve the legal problems of criminal responsibility, financial compensation, medical management and many other difficulties related to HIV/AIDS. It seems that the Republic of South Africa is the only country in Sub-Saharan Africa which has actually issued concrete and relevant laws dealing practically and directly with the various problems raised by HIV/AIDS. Many African countries have no legislative achievement in this regard. The basic legal texts of South Africa governing the issues raised by HIV/AIDS are the Constitution (1996), the Employment Equity Act (1998), the Medical Schemes Act (1999) and the Equity Act (2000). There are two important clauses in the Constitution of South Africa. Equality: everyone is equal before the law and has the right to equal protection and benefit of the law. Unfair discrimination is not allowed. Access to Health Care: everyone has the right of access to healthcare services. No one should be refused emergency life-saving medical treatment. The laws and ethical guideline of South Africa go further into details. No practitioner may divulge any information, which ought not to be divulged, regarding a patient without the patient’s express consent. HIV testing should only take place with the voluntary, informed consent of the individual. The patient should be informed regarding the purpose of the test. Important public health benefits are recognized in maintaining patient confidentiality regarding HIV status. The results of HIV positive patients should always be treated with the utmost level of confidentiality. The medical doctor in charge of the patient should make sure that other healthcare workers are not informed of the patient’s HIV status without his consent. It appears from the experience of South Africa that norm-making is the fundamental ground on which should be based any strategy or policy on HIV/AIDS. The legislative process should be very relevant and should target as much as possible the actual needs of the population regarding HIV/AIDS. For instance, the legal accountability of people infecting carelessly other people, the delicate issue of legal evidence involving such matters, the non-discriminatory access to vaccines, condoms, microbicides, lubricants, sterile injecting equipment, drugs, anti-retroviral therapy, diagnostics and other related items or technologies,. It is necessary that the legal and judicial communities of Africa raise more awareness in respect with the legal aspect of the HIV/AIDS issue.
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