Project Description

This issue of the ALQ continues with the discourse on human rights challenges in the context of the HIV response, and highlights some of the contentious and seemingly persistent ‘obstacles’ to effective rights-based responses to HIV.

March/April 2012
ALQ
A Publication of the AIDS Legal Network
Johanna Kehler
Gender violence as both a cause
and effect of HIV has long been
recognised. Yet, thus far very few
responses effectively address the links
between gender violence and HIV,
thus perpetuating especially women’s
heightened risks and vulnerabilities to
HIV and to violence and abuse.
Similarly, addressing gender violence in its various
forms is well-recognised as a key strategy for effective
responses to HIV at a national and global level.
…violence needs to be dealt with as an integral part
of multisectoral HIV responses…to better address
structural determinants of violence and undertake
socially transformative programmes that promote
gender equality and respond to violence against women,
including discouraging its perpetration.1
Contextual framework: An overview
It is also well-established that women are at greater risk
of and vulnerable to both HIV transmission and violence,
including violence based on and in the context of HIV.2
Violence and the threat of violence can hamper
women’s ability to adequately protect themselves from
HIV infection and/or assert healthy sexual decisionmaking.
In addition, women living with HIV are likely
to experience violence due to their HIV status.3
Data indicates that an estimated 5.63 million adults and
children are living with HIV in South Africa, 3.3 million
(59%) of whom are women. Furthermore, young women (aged
15 to 24 years) are four times more likely to be living with
Effective rights-based responses…?
The NSP response to gender violence
2 Editorial
March/April 2012 ALQ
This issue of the ALQ continues with the discourse on human
rights challenges in the context of the HIV response, and
highlights some of the contentious and seemingly persistent
‘obstacles’ to effective rights-based responses to HIV.
Moving forward with the ‘new’ National Strategic Plan on how to
effectively address the multiplicity of HIV risks and vulnerabilities, the
various articles raise questions as to how far we have come in not only
recognising, but realising human rights as the core of responses to HIV
realities and needs. Exploring the various links and causalities between
HIV risks and gender violence, as well as the recognition of the dire
need for effective rights-based responses to the ‘twin pandemics’ of
HIV and gender violence, Johanna Kehler examines some of the ‘new’
NSP responses to gender violence. Although commending that gender
violence is identified as one of the determinants of the HIV pandemic
in South Africa, she argues that the somewhat ‘narrow’ understanding
of and approach to gender violence based on and in the context of HIV
will ultimately limit the effect of this ‘new’ response.
The need to move ‘beyond commitments and oratory’ and towards
‘robust, radical actions and responses’ to especially women’s and girls’
realities and needs is further highlighted by Mmapaseka Steve Letsike
in her thoughts on the ‘new’ NSP. Pointing to the progress in both
analysis and approach, she argues that an increase in the uptake of
services can only be achieved as and when women and girls in all their
diversities are truly at the centre of the national response to HIV.
Further elaborating as to whether or not women are indeed at
the centre of HIV prevention efforts, particularly efforts to prevent the
vertical transmission of HIV, Gahsiena van der Schaff introduces the
views and opinions ‘from the provinces’. Exploring current and newly
emerging challenges across the provinces in preventing vertical
transmission of HIV, limited access to and availability of quality
services, persistent rights violations, and ‘rude’ service providers are
but some of the recurring issues that were raised across the country.
Moving towards accessible, user-friendly, women-centred, and
rights-adhering service provision, the common theme clearly identified
in all provinces is the dire need for a health plan that ‘suits women,
1. E ffective rights-based responses…?.
The NSP response to gender violence
Page 1
2. E ditorial
Page 2
3. M isinformed and unscientific…
Premier Helen Zille’s views on HIV
Page 11
4. HIV testing in schools…have
children been considered?
Page 15
5. M essages from ICASA
Page 19
6. T he need for robust, radical actions
and responses…
Thoughts on the NSP from the women’s
sector
Page 20
7. T he Global Plan…Are women at the
centre?
Feedback from provinces
Page 24
8. A ctive at ICASA
Page 35
9. W e are everywhere…
The empowerment of lesbian, bisexual
and transgender women in rural areas of
Namibia
Page 36
10. Seeking redress…
The Equality Court and HIV-related
discrimination
Page 38
11. Spreading the word at ICASA
Page 46
12. E nsure that women’s voices are
heard…
Building women’s meaningful
participation in the scale-up of
prevention of vertical transmission
programmes
Page 47
13. T he criminalisation debate
continues…
The law response to Helen Zille,
the HIV populist…
Page 55
14. O slo Declaration on HIV
Criminalisation
Page 58
15. M arching at ICASA Page 60
Editorial… In this issue
Continued on page 4
3
HIV, as compared to their male counterparts of the same age,
and HIV risks are further exacerbated for pregnant women
and survivors of physical and/or intimate partner violence
in this age group.4 In addition, the 2010 Antenatal Survey
published by the Department of Health in 2011, calculated
the national prevalence among antenatal women aged 15 to
49 years at 30.2%, with the highest recorded prevalence of
39.4% in KwaZulu Natal. According to latest data, the peak
of HIV prevalence now occurs in women between the ages
of 30 to 34 years, with a prevalence rate of 42.6% in this
age group.5
The effects of gender violence in its various forms are
far-reaching and well-documented. Violence and/or the fear
of violence greatly impact not only on the extent to which
women are in the position to claim their rights and to access
and benefit from available HIV prevention, testing, treatment,
care and support services6, but also on decisions as to whether
or not, and when to access services, including HIV prevention
and testing; and whether or not and to whom to disclose a
positive HIV diagnosis. A study by Amnesty International7,
involving rural women from KwaZulu Natal, concluded that
women continue to live ‘in a general environment of high
levels of sexual and other forms of gender-based violence’8.
The study continues to highlight that women’s access to
services is, amongst other things, impeded by both the impact
of sexual and other forms of abuse on women who have been
exposed to the risks of HIV through coercive and unprotected
sex, and the impact of HIV-related stigma and discrimination
on the extent to which women are in the position to make
informed decisions whether or not to test for HIV without
fear of violence and abuse.9
HIV-related stigma and discrimination further lead to
a situation in which especially women living with HIV are
further subjected to violence and other rights abuses within
their relationships, families, households, communities
and service provision, as and when their positive
HIV diagnosis becomes known. Within healthcare settings,
women living with HIV are often exposed to discriminatory
attitudes and practices from healthcare providers, and as a
result experience limited, delayed and/or denied access to
services, and are subject to coercive practices, especially in
the context of sexual and reproductive healthcare, such as
coerced termination of pregnancy and sterilisation without
consent. Prevailing rights violations and abuse within service
provision not only impact negatively on women’s access to
services and information, but also seem counterproductive to
effective responses to women and HIV.
Many women living with HIV are unable to access
services because they fear stigma and discrimination
if their HIV status is disclosed. Violence against
women, which has been defined as a form of genderbased
discrimination, also creates barriers for women
living with HIV who may fear the consequences of
accessing HIV testing and medication. They risk
violence, abandonment and poverty if their HIV status
is discovered by their partners and families.10
Especially within the context of HIV testing, including
HIV testing during pregnancy, women and women’s rights
are frequently compromised and violated, as women find
themselves often coerced and/or forced to test for HIV
as a pre-requisite for accessing antenatal care and other
sexual and reproductive health services.11 A recent study on
ALQ March/April 2012
…counterproductive to effective
responses to women and HIV…
…the effects of gender violence
in its various forms are far-reaching…
The NSP response to gender violence
4 Editorial
March/April 2012 ALQ
protects their rights, and caters for
their needs’.
The need for women, and
particularly women living with HIV, to
be at the centre of the response is a wellrecognised
core element of ‘successful’
prevention of vertical transmission
interventions. Findings from a virtual
consultation, facilitated by the
AIDS Legal Network and the Global
Coalition on Women and AIDS,
with women in 22 countries reveal
not only the common challenges
and gender barriers to service access
across countries, but also that women
are ‘eager and ready’ to engage in all
processes affecting their lives, and
to have their voices ‘listened to and
acted upon’.
Women’s sexual orientation and/or
gender identity are additional factors
greatly impacting on the extent to
which women’s voices are ‘listened
to and acted upon’, and services are
accessible to lesbian, bisexual and
transgender women. Exploring the
Namibian context, Linda Baumann
argues that effective responses to the
realities, risks and needs of women
in all their diversities requires that
lesbian, bisexual and transgender
women are ‘visible’ in and part of the
discourse of women and HIV.
While there seem to be many
‘new’ commitments, approaches and
responses to HIV realities, risks, and
needs, there also appears to be as many
remaining ‘threats’ and ‘compromises’
to human rights in the response to
HIV. Intensifying the scale-up of HIV
testing, including through HIV testing
in schools, has long raised debates as
to the ‘inherent threat’ to human rights
posed by these interventions. The
article by Vivienne Mentor-Lalu and
Kerry-Jane Coleman, revisits the
concept of HIV testing at schools,
discusses the human rights
implications of this approach, and asks
‘have children been considered?’.
The impact of criminalising HIV
exposure and transmission on people
and the effectiveness of the AIDS
response seems to be a similarly ‘old’
and ever-recurring debate, with its
most recent renaissance ‘triggered’
by Zille’s ‘populist’ statements on HIV
in November last year. Responding
to Helen Zille and her views on HIV,
Gavin Silber and Nathan Geffen
argue that the Premier’s views are
not only ‘misinformed and unscientific’,
but also ‘irresponsible and wrong’, as
their implementation would cause
‘terrible harm’. Introducing the law,
Pierre de Vos further responds to
Helen Zille arguing that criminal law
cannot be used to punish individuals
merely for not conforming to the ‘moral
standards’ of sexual behaviour, as
otherwise the law would then become
an ‘oppressive and authoritarian
instrument of social control’.
One of the ‘common threads’ in
all articles is the persistence of rights
violations based on and in the context
of HIV, severely impacting not only on
service access, but also on the extent
to which especially women are in the
position to take control of their own
HIV risks. Thus, the ‘loud and clear’ call
by many, including the ‘new’ NSP, is for
redress mechanisms to be available
and accessible to all in need. The
‘pros and cons’ of seeking redress for
HIV-related discrimination at the
Equality Court, as one avenue of
accessing justice, are discussed by
Nonandi Diko. Based on the premise
that any form of unfair discrimination
based on HIV status is unconstitutional
and thus, unlawful, she argues that the
Equality Court although ‘in principle’
affording redress also carries potential
‘risks and negative consequences’, as
seeking redress may also cause further
violations of rights. Thus, it seems to
be the combination of changing social
environments and increasing rights
literacy, which will ultimately lead to
increased access to ‘safe’ and ‘effective’
redress mechanisms.
Notwithstanding the ‘visible’
progress and increased commitments
to ensuring rights protections in the
response to HIV, the need for ‘robust’
discourse on the many ‘contentious’
and often ‘invisible’ issues and realities
affecting both HIV risks and HIV
responses remains. And so, the human
rights debate continues…
Johanna Kehler
5
ALQ March/April 2012
women’s experiences of HIV testing during pregnancy12
conducted in the Western Cape and KwaZulu Natal, for
instance, revealed that in reality there seems to be little to no
option for pregnant women to voluntarily decide whether or
not to test for HIV; to have access to adequate information
and time to make such a decision; and to make an informed
choice free of coercion and fear of repercussions. Women
participating in the study also indicated that their right
to confidentiality, both during the testing process and on
receiving their test results, was severely compromised
and violated. The majority of respondents spoke about
being tested with others present, of doors left open, staff
interruptions and open discussions about women’s HIV test
results, which in turn often lead to further violence and abuse
by both healthcare workers and community members.13
Women’s HIV risks and vulnerabilities are further
exacerbated by high levels of sexual and gender violence.14
According to UNAIDS, experiencing violence increases the
risk of HIV transmission by a factor of three15, and women
are more likely to experience violence and abuse based
on their positive HIV diagnosis16. In South Africa, cases
of sexual assault and rape remain highly under-reported.
An estimated 88% of incidences are not reported17, due to
self-blame, fear of not being believed, trauma, and fear of
secondary victimisation18. It is further estimated that every 17
seconds a woman is raped in South Africa.19 These pandemic
proportions of incidences of sexual violence perpetrated
against women are yet but another indicator of women’s
greater risks and vulnerabilities to HIV, violence and other
rights abuses.
The inadequate integration of services, as well as a lack
of adequate access to justice for women who have been
violated, often create a situation in which women experience
multiple layers of violence and other rights abuses, ranging
from interpersonal to structural and institutional violence.
Recognising both the gendered nature of HIV risks and
vulnerabilities, including related stigma, discrimination
and other rights violations, as well as the pervasiveness of
gender violence based on and in the context of HIV, arguably,
highlight the dire need for effective rights-based responses
to the ‘twin pandemics’ of HIV and gender violence, with
women and women’s rights, realities and needs at the centre
of the response.
The NSP response to gender violence
…the dire need for effective
rights-based responses to the
‘twin pandemics’ of HIV and
gender violence…
6 The NSP response to gender violence
March/April 2012 ALQ
Commitments and responses
Global commitments
Women’s risks and vulnerabilities, as well as the need to
adequately address women’s realities through the protection
and advancement of women’s rights have been recognised
in HIV-related declarations and commitments at a global,
regional and national level. Furthermore, women’s rights to
equality, non-discrimination, and freedom from all forms of
violence and gender-based discrimination are as much core
elements of numerous human rights instruments, as they
are fundamental principles to South Africa’s constitutional,
legislative and policy framework.
The 2011 Political Declaration on HIV/AIDS20, for
instance, recognises that women remain the most affected by
the epidemic, and that
…the ability of women and girls to protect themselves
from HIV continue to be compromised by physiological
factors, gender inequalities, including unequal legal,
economic and social status, insufficient access to
healthcare and services, including for sexual and
reproductive health, and all forms of discrimination and
violence, including sexual violence and exploitation
against them.21
Based on this recognition, head of states and governments
‘pledge to eliminate gender inequalities and gender-based
abuse’, through among other, ensuring that
…women can exercise their right to have control over,
and decide freely and responsibly on, matters related
to their sexuality in order to increase their ability
to protect themselves from HIV infection, including
their sexual and reproductive health, free of coercion,
discrimination and violence.22
Human rights obligations
The promotion of women’s rights to equality and
prohibition of all forms of gendered discrimination and
violence are also primary objectives of the Convention on the
Elimination of Discrimination Against Women (CEDAW),
and the Protocol to the African Charter on Human and
Peoples’ Rights on the Rights of Women in Africa (African
Women’s Protocol).23 In addition to explicitly protecting
women’s sexual and reproductive rights and health needs,
the African Women’s Protocol recognises ‘harmful practices’
as a factor significantly impacting on women’s risks and
vulnerabilities and, thus, urges state parties ‘to condemn and
prohibit all forms of harmful practices which negatively affect
the human rights of women’24, and to
…enact and effectively implement appropriate
legislative or regulatory measures, including those
…there are arguably also some
fundamental challenges within the
conceptualisation of the NSP…
7
ALQ March/April 2012
The NSP response to gender violence
• Prevent new HIV, STI and TB infections – the primary
objective is to ensure a multi-pronged approach
to HIV, STIs and TB prevention, which includes
all biomedical, behavioural, social and structural
approaches in order to reduce new HIV, STI and
TB infections
• Sustain health and wellness – the primary objective is
to ensure access to quality treatment, care and support
services for those with HIV, STIs and/or TB and to
develop programmes to focus on wellness, inclusive
of both physical and mental health
• Ensure the protection of human rights and increase
access to justice – the primary objective is to address
issues of stigma, discrimination, human rights
violations and gender inequality
The national response to women and HIV, as outlined in
the NSP, is undoubtedly informed by an analysis of the various
risks and vulnerabilities of women to HIV transmission and
related violence30. Based on this analysis, the NSP highlights,
among other, gender roles and norms, as well as sexual abuse
and intimate partner violence, as structural determinants of
South Africa’s HIV epidemic. To respond to these factors
fuelling the pandemic, the NSP recommends to
…challenge the gender roles, norms and inequalities
that increase women’s vulnerability to HIV and
compromise men’s and women’s health; address
the position of women in society, particularly their
economic standing; and engage with men on changing
socialisation practices.31
prohibiting and curbing all forms of discrimination
particularly those harmful practices which endanger
the health and general well-being of women.25
In South Africa, the right to equality, non-discrimination,
autonomy and consent, and to be free from all forms of
violence are constitutionally guaranteed26, with numerous
laws and policies giving effect to these provisions.
However, despite these commitments and the enabling legal
environment, women and women’s rights continue to be
compromised and violated, especially in the context of HIV,
as gendered inequalities and unequal power relations prevail,
which determine and further manifest women’s risks to HIV
and to violence and abuse.
The national response to HIV
The ‘new’ National Strategic Plan on HIV, STIs and TB,
2012 – 2016, launched on 01 December 2011, provides ‘the
strategic guide for the national response’, and aims to
…inform national, provincial, district and
community-level stakeholders on strategic directions
to be taken into consideration when developing
implementation plans.27
The ‘new’ NSP also reaffirms, among other, its
commitment to a rights-based national response to HIV, STIs
and TB, and as such identifies as one of its principles that
…the NSP must be rooted firmly in the promotion
and protection of human and legal rights, including
prioritising gender equality and gender rights.28
The national response will be informed by four strategic
objectives29, namely to
• Address social and structural barriers to HIV and TB
prevention, care and treatment – the primary objective
is to address societal norms and behaviours through
structural interventions to reduce vulnerability and to
mitigate the impacts of HIV and TB
…narrow approach to addressing
gender-based violence as one of the
determinants of the HIV…
8 The NSP response to gender violence
March/April 2012 ALQ
and implemented’ in such a way that recognises both the
specific needs of ‘particular groups and key populations’
and ‘the social, cultural, legal, economic and other possible
barriers to accessing services’.33
While the NSP objectives and interventions seem to
indicate a comprehensive approach to the multiple risks
and vulnerabilities to HIV and violence in its various
forms for women and other key populations at higher risk,
there are arguably some fundamental challenges within the
conceptualisation of the NSP. For instance, interventions
aimed at addressing gender-based violence seem to largely
focus on sexual and intimate partner violence (Objective
1.2 and 2.7), thus failing to adequately address gender
violence in its various forms, including institutional and
structural violence impacting on especially women’s risks
and vulnerabilities. Notwithstanding the dire need for these
interventions, this seemingly narrow approach to addressing
gender-based violence as one of the determinants of the
HIV epidemic will impact on the overall effectiveness of
the NSP to challenge and transform the societal context
in which women’s risks and vulnerabilities are defined
and perpetuated.
Even though South Africa has a generalised
HIV epidemic, the NSP recognises and defines ‘key
populations’ in need of ‘targeted’ interventions. According to
the NSP, key populations are ‘those most likely to be exposed
to, or to transmit, HIV’, and include people
…who lack access to services, and for whom the
risk of HIV infection and TB infection is also driven
by inadequate protection of human rights, and
by prejudice.34
Furthermore, the NSP calls for ‘interventions to prevent
gender-based violence, as well as intimate partner violence,
and educate men about women’s rights’32.
The NSP includes a number of ‘social interventions’
aimed at changing cultural and social norms and practices
that define and perpetuate risks and vulnerabilities to
HIV transmission and related violence, ranging from
addressing gender inequalities and gender-based
violence (Objective 1.3) to social and behavioural change
communication strategies (Objective 2.4) and providing
training to prevent unfair discrimination within service
provision (Objective 4.3.2). In addition, the NSP clearly
recognises the negative effects of persistent HIV-related
stigma, discrimination and other rights abuses on women’s
access to services, including the lack of access to redress
mechanisms as and when women have been violated.
Reaffirming the ‘centrality of constitutional values and
human rights’ in the national response to HIV, the NSP
Objective 4 further emphasises that ‘interventions be planned
…the ultimate transformation of these
norms and practices…
9
ALQ March/April 2012
HIV transmission, as sex workers often remain unreached by
programmes and access to services continues to be severely
limited and/or denied, due to their criminalised status. The
NSP recognises sex workers and their clients as one of the
‘key populations’, which is commendable. However, one of the
major flaws of the ‘new’ NSP is undoubtedly its failure to call
for the decriminalisation of sex work, thus, acknowledging
the effects of criminalisation on sex workers risks
and vulnerabilities to both HIV transmission and to violence
and abuse.
Moving forward…
While it is commendable that the NSP recognises the
unequal gendered societal context as one of the determinants
of the HIV epidemic, questions, however, should be
raised as to whether or not the analytical framework and
contextualisation of its analysis is sufficiently informed
by the very same gendered inequalities, power relations,
and patriarchal systems that define and manifest women’s
greater risks to HIV transmission and to violence based on
and in the context of HIV; and whether or not the recognition
of ‘drivers’ of the epidemic has been adequately translated
into interventions that indeed will change women’s risks
and vulnerabilities.
Challenging gender roles, norms and inequalities
is a key element of addressing women’s greater risks
and vulnerabilities to HIV; although it is the ultimate
The NSP response to gender violence
Key populations included in the NSP range from young
women and people living in informational settlements
to migrant populations and people with disabilities. It is
also important to note that the NSP explicitly includes sex
workers and their clients, men who have sex with men, and
transgender persons as ‘key populations’ in need of specific
targeted interventions. Given this fairly broad and inclusive
list of ‘key populations’, it is greatly disturbing that women
are not explicitly listed, despite the recognition of women’s
greater risks and vulnerabilities highlighted throughout
the NSP, as well as data indicating HIV prevalence rates of
42.6% among women (30 to 34 years), which is far beyond
the national prevalence rates of 30.2%. This, arguably, raises
the question as to the extent to which interventions will be
in the position to adequately address women’s realities and
needs, including violence based on and in the context of HIV,
if women are not seen as a ‘key population’ in need of specific
programmes and targeted interventions.
The national strategic plan does however place a certain
amount of responsibility on provinces and districts calling
for the assessment and identification of specific ‘transmission
hotspots and key populations’, which must form part of
provincial and sector implementation plans. One can only
hope that women are explicitly included as a ‘key population’
in provincial and district plans, especially since there is
plenty evidence that women by virtue of birth (biological)
and by virtue of the gendered societal context are ‘most likely
to be exposed to HIV’, ‘lack access to services’, and are at
heightened risks of rights abuses.
It is widely recognised that sex workers’ criminalisation
is one of the causes increasing the risks of both violence and
…it is greatly disturbing that women
are not explicitly listed…
…the remaining shortfalls within
its analysis and interventions will
ultimately limit the effect of this ‘new’
National Strategic Plan…
10The NSP response to gender violence
March/April 2012 ALQ
transformation of these norms and practices that will lead to
an environment in which women are equally in the position
to claim their rights, control their HIV risks, and access and
benefit from available services.
As long as women in their own right and in all their
diversities are not recognised as ‘key populations’, women’s
realities, risks and needs will remain on the ‘margins’ of the
response to HIV. Similarly, as long as violence based on and
in the context of HIV is not truly addressed in all its forms and
in its gendered nature, the correlations between violence and
HIV will continue to define and further manifest especially
women’s risks and vulnerabilities. Subsequently, responses to
HIV, although recognising women’s risks, the adverse effects
of violence and gender roles, and calling for the protection of
human rights in all aspects of developing and implementing
programmes and interventions, will remain largely ineffective
for women. Hence, notwithstanding the progress made in the
document guiding the national response to HIV, the remaining
shortfalls within its analysis and interventions will ultimately
limit the effect of this ‘new’ National Strategic Plan.
FOOTNOTES:
1. UNAIDS. 2010. Global Report: UNAIDS Report on the Global
AIDS Epidemic; UNAIDS. 2010. Agenda for Accelerated Country
Actions for Women, Girls, Gender Equality and HIV: Operational
Plan for UNAIDS Action Framework: Addressing women, girls,
gender equality and HIV, p10.
2. Ibid; and also UNAIDS. 2010. UNAIDS Report of the Global AIDS
Epidemic.
3. UNAIDS. 2010. UNAIDS Report of the Global AIDS Epidemic,
p134.
4. NSP, Chapter 2.5., p25.
5. Department of Health. 2011. National Antenatal Sentinel HIV
and Syphilis Prevalence Survey in South Africa, 2010. Pretoria,
Department of Health.
6. See also Human Rights Watch. 2011. ‘Stop Making Excuses’:
Accountability for maternal healthcare in South Africa. [http://www.
aegis.org/files/HRW/2011/HRW110802.pdf]
7. Amnesty International. 2008. ‘I am the lowest end of all’: Rural
women living with HIV face human rights abuses in South Africa.
London, Amnesty International.
8. Ibid, p96.
9. Ibid, pp99-100.
10. Gerntholtz, L. & Grant, C. 2010. International, African and country
legal obligations on women’s equality in relation to sexual and
reproductive health, including HIV and AIDS. HEARD and ARASA.
Durban, South Africa, p18.
11. See also Bodibe, K. ‘Lessons from HCT campaign’. Health-e
News Service, 21.07.2011. [www.health-e.org.za/news/article.
php?uid=20033213]
12. Kehler, J., Howard Cornelius, A., Blosse, S. & Mthembu, P. 2010.
Where are the Human Rights for Pregnant Women? Scale-up
provider-initiated HIV testing and counselling of pregnant women:
The South African experience. Cape Town: AIDS Legal Network.
13. Ibid, pp5-8.
14. UNAIDS. 2010. Global Report: UNAIDS Report on the Global
AIDS Epidemic, pp134-136; Kristin L. Dunkle, L. et al. 2004.
‘Gender-based violence, relationship power and risk of HIV
infection in women attending antenatal clinics in South Africa’. In:
Lancet, 363(9419), pp1415-1421; Jewkes, R. 2009. Understanding
men’s health and use of violence: Interface of rape and HIV in South
Africa. South African Medical Research Council.
15. UNAIDS. 2010. Women, Girls and HIV Fact Sheet. Geneva,
UNAIDS.
16. UNAIDS. 2010. Global Report: UNAIDS Report on the Global AIDS
Epidemic, p134.
17. Jewkes, R & Abrahams, N. 2002. ‘The epidemiology of rape and
sexual coercion in South Africa: An Overview’. In: Social Science &
Medicine, vol.55, no 7, pp1231-1244.
18. POWA et al. 2010. Criminal Injustice: Violence against women in
South Africa. Shadow report on Beijing +15. [www2.ohchr.org/
english/bodies/cedaw/docs/ngos/POWA_Others_SouthAfrica48.pdf]
19. Mkhwanazi, A. ‘Rape survivors still feel marginalised’. Health-e
News Service 03.08.2010. [www.health-e.org.za/news/article.
php?uid=20032881]
20. See www.unaids.org/en/media/unaids/contentassets/documents/
document/2011/06/20110610_un_a-res-65-277_en.pdf.
21. Political Declaration on HIV/AIDS, para1.
22. Ibid, para53.
23. South Africa signed and ratified CEDAW in December 1995, and the
African Women’s Protocol in December 2004.
24. African Women’s Protocol, Article 5.
25. African Women’s Protocol, Article 2.
26. Constitution of South Africa, Act 106 of 1996.
27. NSP, Chapter 1.1, p12.
28. NSP, Chapter 2.3, p22.
29. NSP, Chapter 2.6, p27.
30. Know Your Epidemic Report, 2011.
31. NSP, Chapter 2.4.1, p23.
32. NSP, Chapter 2.4.1, p23.
33. NSP, Chapter 4.5, p53.
34. NSP, Chapter 2.5, p25.
Johanna Kehler is the Director of the AIDS Legal Network
(ALN). For more information and/or comments,
please contact her at jkaln@mweb.co.za.
11
ALQ March/April 2012
Premier Helen Zille’s views on HIV
Misinformed and unscientific…
Premier Helen Zille’s views on HIV1
In November 2011, Western Cape Premier Helen Zille made various comments suggesting that the
provision of healthcare to those who behave ‘irresponsibly’ should be reconsidered. Writing in her weekly
newsletter2, the Premier noted that over half of the Province’s budget is spent on ‘preventable illness’,
while the ‘scraps’ are given to unpreventable conditions. This, she claimed, ‘has further widened the gap
between “rights” and their “essential corollary – responsibility’.
Gavin Silber and Nathan Geffen
Specifically citing people who contract HIV through
‘irresponsible’ behaviour Zille rhetorically questioned
why ‘taxpayers must foot the bill without asking any
politically incorrect questions – enough already!’. She later
tweeted that ‘if you duck responsibility, don’t come running to
the state when you need treatment’.
A few days later – at a provincial health summit – the
Premier went further to say that people who knowingly infect
others with HIV should be charged with attempted murder.
The premier’s views are possibly popular across the
political spectrum, but they are misinformed and unscientific.
This debate is repeated periodically. Although there are
existing rebuttals of the arguments the premier puts forward3,
this article first addresses arguments about why the Premier’s
arguments on responsibility are wrong. We then deal with
criminalisation. Finally we deal with the
Premier’s concern that HIV treatment is taking
resources away from unpreventable diseases.
Why the Premier’s arguments on
responsibility are wrong
The premier’s proposal is unconstitutional
The Constitution says that everyone has
the right to have access to healthcare services
and that the state must, within its available resources, realise
this right. The Constitutional Court has found that the state,
because it has limited resources, can limit the provision of
a health service using reasonable criteria, such as how well
patients will respond to treatment. But it is unlikely that the
court would consider the way an illness was contracted to be
a reasonable criterion.
Provision of health-care based on ‘responsibility’
is impractical
It is impractical to provide antiretroviral treatment
depending on how people contract HIV. Health workers
cannot be expected to investigate how their patients became
infected. Besides being an invasion of privacy, it is often
impossible to determine this reliably. Also, on what criteria is
a health worker supposed to decide if the particular behaviour
that resulted in infection was irresponsible or not?
12Premier Helen Zille’s views on HIV
March/April 2012 ALQ
The consequences of the Premier’s proposal are untenable
Consistently only providing medical care to people
based on ‘personal responsibility’ leads to frightening
consequences. It would mean cigarette smokers would not
get treated for cancer. People who eat unhealthily would
not get treated for type II diabetes or heart disease. The
same for people who do not look after their teeth properly,
or suntan too much and develop skin cancer, or sportsmen
who over-train and injure themselves. There is no precedent
for providing healthcare only to people who live a life of
perfect responsibility.
Treatment based on ‘responsibility’ discriminates
against the poor
People who can afford private healthcare would still be
treated irrespective of how they contracted HIV, or for that
matter any other ailments acquired through irresponsible
behaviour. It is only poor people who use the public health
system who would be affected by Zille’s proposal.
Providing antiretroviral treatment is an effective way to
reduce HIV transmission
Zille laments the large sums of money spent on
AIDS treatment, as opposed to prevention. However,
science shows that HIV positive people on treatment with
an undetectable viral load are unlikely to transmit HIV.
Studies in several cities around the world have shown
a decline in new HIV cases, as antiretrovirals are scaled
up. On balance, the evidence shows that the rate of new
HIV infections is declining in South Africa. Antiretroviral
treatment is likely one of the factors contributing to this.
Providing treatment as widely as possible is not only
good for personal health, but is also a critical public
health intervention.
Withholding antiretroviral treatment has huge costs
People on antiretroviral treatment have almost normal life
expectancy. But people denied treatment will frequently get
opportunistic infections and need to be hospitalised. Failing
to provide treatment will cause poor families great emotional
and economic hardship. Parents will be far more likely to die
young and there will be more orphans.
Why the Premier’s arguments on
criminalisation are wrong
Preventing HIV transmission should be based on science,
not morals
Moral judgments about responsibility are easily made
by people who never have to face the choices about sex that
many poor people in this country constantly have to make.
Reducing HIV transmission should be based on science,
not moralising.
In a Cape Argus interview in November 2011, Zille claimed
that countries in Europe that criminalised HIV transmission
had ‘beaten’ the HIV epidemic. But no country in Western
Europe, whether or not it has criminalised transmission,
has had a large HIV epidemic. What does she mean by
‘beaten’? If she means a reduction in HIV incidence, there
…providing treatment as widely as
possible is not only good for personal
health, but is also a critical public
health intervention…
…criminalisation will stigmatise the
disease further and discourage people
from getting tested and finding out
their status…
13
ALQ March/April 2012
Premier Helen Zille’s views on HIV
Current laws sufficiently deal with intentional
transmission of HIV
Very few people intentionally transmit HIV. Those that
do can and should be prosecuted under assault laws. HIV
is no longer a fatal disease, but a chronic condition, much
like diabetes.
We know of no other sexually transmitted infection
whose transmission is expressly criminalised
Human papilloma virus is a sexually transmitted infection
and the cause of cervical cancer. Its transmission is not
criminalised. Hepatitis is often transmitted sexually, and
is frequently a lifelong chronic illness that can be fatal. Its
transmission is not criminalised.
It would be inconsistent to demand the specific
criminalisation of only one sexually transmitted infection, as
well as impractical to criminalise the transmission of most or
all sexually transmitted infections.
It is extremely hard to scientifically determine who
infected whom
HIV mutates quickly and it is almost always impossible
for genetic tests to determine routes of transmission to
determine who infected whom.
Spending on HIV versus spending on the
disabled
The Premier argues that HIV treatment takes resources
away from other health services, such as those for children
with disability. In reference to children who are deaf, she
claimed that ‘there are protests outside my office every week
on almost every conceivable issue. Why is no-one out there
protesting for the rights of these children? Is it because
people with disabilities are not regarded as fully human?’
The Premier has missed opportunities to provide
care to the disabled
Both the Western Cape and national governments opposed
is no evidence that criminalisation is associated with reduced
incidence.
On the contrary, criminalisation will stigmatise the
disease further and discourage people from getting tested and
finding out their status. The Premier’s response to this is to
make HIV testing ‘mandatory’. Besides the appalling human
rights consequences of this argument, the state does not have
the capacity to do this.
On the other hand, the programme of voluntary
counselling and testing introduced into the health system
is resulting in millions of people getting tested. Why
would Zille want to change an approach that is starting to
produce results?
People are most infectious just after becoming infected
A challenge of HIV prevention is that people are most
infectious just after becoming infected, when they do not
know their HIV status and cannot yet determine it using
standard tests. Neither criminalisation nor mandatory
HIV testing can address this, but scaling-up antiretroviral
treatment might.
Criminalisation removes responsibility from
uninfected people
An important HIV prevention message is that people
should take responsibility for their own HIV status. For an
HIV negative person this means assuming that your sexual
partner or partners are HIV positive and therefore, practising
safer sex. Criminalising HIV positive people who have
unprotected sex sends the message that their HIV negative
partners do not have to take equal responsibility to practice
safer sex.
…reducing HIV transmission should be
based on science, not moralising…
14Premier Helen Zille’s views on HIV
March/April 2012 ALQ
directly attributable to poor communal sanitation facilities in
informal settlements. The provincial health department has
an important role in monitoring environmental health and
diarrhoea in these communities. While much has been done
to improve treatment of diarrhoea, a lot more needs to be
done to address the root cause. In August last year, a Western
Cape Provincial Government presentation was released
showing serious shortcomings with repairs of standpipes and
toilets in informal settlements – most faults reported were
never addressed. Working with municipalities to ensure that
there is adequate monitoring to identify problem areas – and
addressing them swiftly – would contribute enormously to
reducing this easily preventable illness, which strains the
public health system.
Premier Zille’s prescriptions would violate the
Constitution, discriminate against the poor, increase stigma,
and ultimately be counter-productive. Her views might be
popular, but if they were implemented, they would cause
terrible harm.
FOOTNOTES:
1. This is an expanded version of an article that was published in
The Cape Argus on 15 November 2011, available on Quackdown.
info [www.quackdown.info/article/helen-zilles-views-hivare-
unscientific/] and Politicsweb [www.politicsweb.co.za/
politicsweb/view/politicsweb/en/page71619?oid=266888&sn=
Detail&pid=71616].
2. See www.da.org.za/newsroom.htm?action=view-news-item&id=9971.
3. For instance, Doron Isaacs has written a succinct rebuttal of the
criminalisation of HIV [See www.quackdown.info/article/fivequick-
reasons-why-criminalisation-hiv-wrong/]; Scott Burris, Judge
Edwin Cameron, and Michaela Clayton have written an in-depth
explanation of why criminalisation of HIV is wrong [http://papers.
ssrn.com/sol3/papers.cfm?abstract_id=1189501]; Gavin Silber has
previously argued against the Premier’s position when she made
similar arguments in 2009 [www.politicsweb.co.za/politicsweb/view/
politicsweb/en/page71619?oid=141446&sn=Detail]; and Edwin
Cameron and Nathan Geffen debated David Benatar on whether a
person contracting HIV through his or her irresponsibility has a right
to treatment [http://witnesstoaids.com/debates.html].
a court action on behalf of severely mentally disabled children
requesting special provisions for their education.
Although the case was brought against the Western
Cape government when the ANC was in power, it was only
heard in 2010, a year into the DA’s rule. The Premier had the
opportunity not to oppose the plaintiff ’s demands. Instead
the Western Cape government argued, shockingly, that ‘for
children who do not qualify for admission to special schools,
no amount of education would be beneficial’. The court found
for the plaintiff.
Zille’s comments create competition for resources between
people with HIV and people with disability for limited public
health sector resources. A better strategy would be to look for
ways to make the public health system less wasteful and to
get the private sector to take responsibility for a greater share
of the health burden.
Government can do more to reduce preventable illness
The Premier is right to be concerned about the large
burden placed on the public health system by preventable
illnesses. But there are far more productive ways for
government, both nationally and provincially, to reduce
disease. For one thing condoms should be available in all
schools, along with sex education programmes. Many youths
have sex. Pretending they do not is a recipe for increased
HIV incidence and teen pregnancies.
One of the biggest causes of preventable childhood
disease and infant mortality is diarrhoea, and in most cases
…her views might be popular, but if
they were implemented, they would
cause terrible harm…
Gavin Silber is with the Social Justice Coalition and
Nathan Geffen is with the Treatment Action Campaign.
For more information and/or comments, please contact
Gavin at gavinsilber@gmail.com.
15
ALQ March/April 2012
HIV testing in schools…have children been considered?
HIV testing in schools…
Have children been considered?
Vivienne Mentor-Lalu and Kerry-Jane Coleman
Promoting HIV testing in South Africa has been a
priority for the Department of Health (DOH) for
reasons that are not difficult to understand.
South Africa currently faces a pandemic, where
its HIV infected and affected population is rated
amongst the highest in the world.1 It is a
well-established argument that early diagnosis
will lead to early treatment and intervention,
prolonging and increasing the quality of life for
people living with HIV. In addition, people who
test negative for HIV will be encouraged to adopt
behaviours that will keep them negative. The
president of South Africa thus launched an HIV
Counselling and Testing (HCT) Campaign in April
2010. The HCT2 campaign, as it is commonly
known, had the ambitious target of testing
15 million people by April 2011.3
Many, therefore, welcomed the proclamation made
by the Departments of Basic Education and Health
of their intention to launch an HCT campaign that will
specifically target high school learners in 2011. Although
schools may provide easy and fast access to large numbers of
children for the purposes of HIV testing, the very setting of
these schools provides the potential context for the violation
of children’s rights many would argue should be intrinsic to
the HCT campaign. Many children’s rights, human rights
and AIDS organisations and activists have raised a range
of concerns about HIV testing in schools with the state
departments involved in this particular campaign.4 The key
question has been whether or not schools are conducive
spaces to protect the basic rights of learners, and many have
argued that testing in schools is far more likely to compromise
the basic standards required for an HCT campaign.
Minimum standards for HCT were developed for the
Southern African Development Community region (SADC)
by its Directorate for Social and Human Development and
Special Programmes. This document identifies principles
to guide HCT minimum standards. These principles
include, amongst others, gender equity promotion; greater
involvement of people living with HIV; contextual relevance
of programmes; partnerships with civil society; protection of
human rights; and environments that need to be conducive
for HCT. The following minimum standards around HCT are
proposed for member states5:
• HIV testing facilities are available and accessible free
of charge
• Routine offer of testing in health facilities
• The age of consent for HIV testing is 12 years and
above
• Standards for service provision need to include
consent, confidentiality and counselling
• Capacity building for providers
• Accreditation of HCT sites must be done by a team of
technical experts, and requirements for accreditation
include staff, space, equipment and supplies
• Quality assurance of HCT services
• Appropriate referrals must be made to additional
services as needed
16HIV testing in schools…have children been considered?
March/April 2012 ALQ
• Comprehensive HCT approaches
• Involvement of men and people living with HIV
The main concerns regarding the HCT campaign in
schools focus on the likelihood that key principles and
minimum standards for HCT could be jeopardised.
Informed consent and counselling
Using schools as a base for HIV testing in order to
reach large numbers of children poses a serious challenge
to informed consent, which is a central requirement in
HCT. Concerns have been raised about whether children
will have enough time to absorb the information and ask
questions regarding the process and possibly their HIV status.
Questions have also been raised about whether schools can
provide the logistical space required to conduct pre- and
post-test counselling.
Tied closely to informed consent is the basic requirement
that all HIV testing be voluntary. Concerns have been raised
regarding the complex dynamics particularly facing teens,
such as peer pressure, and how this may influence their
ability to voluntarily consent to testing. The possibility
exists that adolescents may feel coerced or pressured to test.
Furthermore, there is an existing power dynamic between
educators and learners, which could result in the mere
presence of an educator making a learner feel compelled to
take the test.
Confidentiality
Testing at schools immediately restricts the right
to confidentiality. This is particularly the case with the
confidentiality of the results. Children’s possible emotional
reactions to the results, or refusal to participate, can easily
be interpreted to mean that they have tested positive for
HIV. There does not appear to be any plans for psychosocial
education with educators and learners on the range of
emotions that learners may experience, once they have
tested. For example, a learner crying after testing could be
interpreted to mean that the learner tested positive. However,
it could also mean that the learner is relieved at testing
negative. This demonstrates the need for an approach to
HCT testing in schools, which includes awareness raising
and information sharing with educators and learners before
HIV testing is introduced.
Stigma
An important aspect of living positively with HIV is
support and acceptance. In the absence of proper engagement
with educators and learners regarding HIV, there is a high
probability that learners who test positive for HIV will face
stigma and discrimination at school from the peers and
educators who have not received enough, if any, capacity
building to be able to provide support to learners who test
positive. This will add to the isolation faced by the learner and
have an impact on the learner’s ability to access treatment.
Bongani Mani, president of the Congress of South African
Students (COSAS), raised concerns around stigma in an
article published in the Sowetan:
The country has not dealt with the stigma attached. You
cannot expect a learner to go for such a life-changing
test and then go back to class as if nothing happened.
Serious medical tests such as HIV and Aids should be
done outside the school. Schools are for learning and
should remain so.6
…the very setting of these schools
provides the potential context for the
violation of children’s rights…
17
ALQ March/April 2012
HIV testing in schools…have children been considered?
A common strategy to ensure support for adults living
with HIV is the recommendation for that adult to disclose
their HIV status to at least one supportive person. The DOH
has suggested this strategy apply to children as well where
a child can bring a ‘buddy’ with them through the testing
process. The ‘buddy’ would also be required to keep this
information confidential. This approach will place adult
responsibility onto the ‘buddy’ to provide support should
their friend test positive. It also merely transfers an approach
designed for adults onto children.
Psychosocial support and treatment
Psychosocial support and HIV treatment programmes
specifically geared for children have not been established
in anticipation of the HCT programme. Mental health
problems are known to increase dramatically after adults
have tested HIV positive, with people living with HIV being
36 times more likely than the general population to commit
suicide. Assumptions have been made that since the figure of
adolescent suicide is generally higher than that of the general
population that one could predict higher figures of suicide
among young people who test positive. This will result
in children who test positive and their families being left
unsupported or expected to fit into existing services already
constrained and geared towards adults.
Legal ramifications of disclosure of
consensual sex
Children’s rights organisations and activists have long
been critical of conflicting provisions in various pieces of
legislation affecting children. The Children’s Act of 2005
makes provision for children aged 12 and older to be able
to consent to HIV testing, without the permission of a
parent or guardian. The Amended Sexual Offences Act of
2007 in turn stipulates that children between the ages of 12
and 16, who engage in consensual sexual acts, are liable for
prosecution. The National Director of Public Prosecutions
had demonstrated, with what has become known as the
Jules case, their intentions to act on the provisions in the
law with children engaging in consensual sexual activities.7
The Amended Sexual Offences Act further places a duty
on adults, who are aware of children engaging in sexual
activities, to report this to the relevant authorities. In
the process of HIV testing, a child may disclose to the
healthcare practitioner that they have been sexually active.
This will then potentially incriminate the child and place a
responsibility on the healthcare practitioner to report the
child to the authorities.
Conclusion
In conclusion, South Africa listed the objectives of the
broader HCT Campaign announced by President Zuma as
follows:
• Mobilise people to know their status
• Provide key prevention messaging to encourage
healthy lifestyle practices irrespective of HIV status
• Increase incidence of health-seeking behaviour
• Increase the access to treatment, care and support
The state’s approach to this particular campaign to test
children in schools seems only to focus on the first objective.
Moreover, the campaign appears to be designed to meet
government targets rather than to adhere to the initial holistic
intentions and meet basic human rights whilst doing that.
The state’s promotion of HCT, laudable as it is, should not
…a serious challenge to informed
consent, which is a central requirement
in HCT…
18HIV testing in schools…have children been considered?
March/April 2012 ALQ
overshadow the importance of protecting the rights of people
being tested, and in this case the rights of children.
Addendum
Due to increasing pressure from civil society the
Department of Health agreed to suspend its HCT campaign
in schools. In an article from The Times Live in May 2011
the Department of Health acknowledged that serious legal
and ethical concerns needed to be addressed. The department,
however, remained adamant that the campaign would still
start in 2011.8
According to an article in the Mail & Guardian Online
in December 2011, the Department of Basic Education stated
that HIV testing of learners in school could not start in the
first quarter of 2012, due to a number of unresolved issues.9
Currently there has been no indication of how the Department
of Health intends to address the legal and ethical concerns
raised. A date for the implementation of the campaign has
not been set. It is however, important to note that the new
NSP includes HIV testing in schools as one of its strategies,
although recognising that policies guiding HIV testing in
schools need to be developed.10
FOOTNOTES:
1. According to the NSP, South Africa has an estimated 5.63 million
people living with HIV. Of these, 5.3 million were adults aged 15
years and older, 3.3 million were females and 334,000 were children.
The 2010 National Antenatal Survey, published in 2011, further
estimates the national HIV prevalence among women (aged 15 to
49 years) attending antenatal services at 30.2%, showing a slight
increase from 29.4% in 2009. KwaZulu Natal continues to have the
highest recorded prevalence of 39.4%. Similarly, the 2010 Antenatal
Survey confirms great disparities among the provinces ranging from
a low of 18.4% in the Northern Cape to a high of 39.4% in KwaZulu
Natal. While the HIV among young people (below age 20) slightly
declined from 2008 (14.1%) to 2009 (13.7%), the prevalence in this
age group slightly increased in 2010 to 14%.
2. The AidsBuzz website explains the difference between VCT and
HCT as follows: With the introduction of new guidelines in February
2010 the government’s policy on VCT has been expanded to include
provider-initiated HCT. Previously, healthcare workers recommended
testing only if HIV disease was suspected. Now regular HIV testing,
while still voluntary, is to be routinely recommended to everyone
as an important part of normal health-seeking behaviour. This
is the main difference between VCT and HCT. [http://aidsbuzz.
goodwebmarketing.com/index.php?option=com_content&view=arti
cle&id=231&Itemid=34]
3. See also Treatment Action Campaign [www.tac.org.za/community/
node/2870]
4. RAPCAN is a member of the Yezingane Network: a civil society
network of networks whose membership includes organisations
working to address the impact of HIV on children, families and
communities. The Yezingane Network also represents the Children’s
Sector on SANAC. This network has actively campaign, consulted
and advocated on the issue of HCT in schools.
5. Taken from Regional Minimum Standards for Harmonised Guidance
on HIV Testing and Counselling (HTC) in the SADC Region (August
2009).
6. ‘Fury over HIV tests for pupils’, 01 February 2011, Sowetan Online.
[www.sowetanlive.co.za/news/2011/02/01/fury-over-hiv-tests-forpupils]
7. RAPCAN and the Teddy Bear Clinic have filed court papers with
the North Gauteng High Court which challenge the constitutionality
of the laws that criminalise children between 12 and 16 years of age
who are consensually involved in sexual activity with each other. This
is the law under which the National Director of Public Prosecutions
has recently made a decision to prosecute the children involved in the
Jules High School incident.
8. ‘School HIV tests on hold’, May 2011, The Times Live. [www.
timeslive.co.za/local/article1063135.ece/School-HIV-tests-on-hold]
9. ‘No date set for school HIV testing programme’, 27 Dec 2011, The
Mail & Guardian Online. [http://mg.co.za/article/2011-12-27-nodate-
set-for-school-hiv-testing-programme/]
10. Objective 2.1 of the NSP.
Vivienne Mentor-Lalu is the Advocacy Project
Coordinator and Kerry-Jane Coleman is the Research
Coordinator at RAPCAN (resources Aimed at the
Prevention of Child Abuse and Neglect). For more
information and/or comments, please contact Vivienne
at Vivienne@rapcan.org.za.
…the campaign appears to be
designed to meet government targets
rather than to adhere to the initial
holistic intentions and meet basic
human rights whilst doing that…
19
ALQ March/April 2012
Messages from ICASA
Messages from ICASA…
20Thoughts on the NSP from the women’s sector
March/April 2012 ALQ
The need for robust, radical actions and responses…
Thoughts on the NSP from the women’s sector
As South Africa finalised the development of the National Strategic Plan 2012-2016 that was launched
on 01 December 2011 by the President of the Republic, Jacob Zuma, and South African National AIDS
Council (SANAC) led by the chairperson Deputy President, Kgalema Motlanthe, I want to scream again and
again that we need to move beyond the commitments and oratory to what I call robust, radical action
and response. For many years, women have been advocating, requesting, demanding, negotiating and
claiming their rights as patriots to centralise all women and girls in their diversity for interventions.
Mmapaseka Steve Letsike
Currently, South Africa has the new National Strategic
Plan (NSP) for HIV, sexually transmitted infection
(STI’s) and tuberculosis (TB) (2012-2016), a framework
to guide all partners whose work is relevant to HIV, STIs
and TB in South Africa. The aim of the NSP is to focus the
country on the most important interventions that SANAC
believes will bring about significant change in the incidence
and prevalence of HIV, STI and TB. While the NSP does not
outline every intervention that must happen, mainly because
it is not an operational plan, it does however expect provinces
to develop operational plans in advance of the implementation
target date 01 April 2012. The NSP has five goals, which the
country aims to achieve by 2016. The NSP aims to:
• Halving the number of new infections
• Ensuring that at least 80% of people who are
eligible for treatment for HIV are receiving it (at
least 70% should be alive and still on treatment
after five years)
• Halving the number of new TB infections and
deaths from TB
• Ensuring that the rights of people living with HIV
are protected
• Halving the stigma related to HIV and TB
The NSP has identified a number of strategic objectives
that will help South Africa reach these goals. These are
• Addressing social and structural factors that drive
these epidemics, influence their impact, and affect
the way we care for affected people
• Prevent new HIV, STI and TB infections through a
combination of interventions
• Sustain health and wellness primarily by reducing
deaths and disability from HIV, AIDS and TB
• Protect the human rights of people living HIV and
improve their access to justice
Through the above, the NSP is based on a 20-year vision
for reversing the burden of disease to ZERO new HIV and TB
infections, ZERO new infections, due to HIV transmission
from mothers to child (MTCT), ZERO preventable deaths
from HIV and TB, and ZERO discrimination associated with
HIV, STIs and TB.
21
ALQ March/April 2012
Thirty years into the HIV epidemic, HIV-related
stigma and discrimination persist and continue to pose
significant barriers to successful HIV responses. Women
living with HIV experience particular forms of stigma and
discrimination, especially in relation to our perceived or
actual roles as mothers and carers; in accessing services, such
as sexual and reproductive health; and in claiming our rights.
Women belonging to key affected populations are often
doubly stigmatised on the basis of gender and age, sexual
orientation and gender identity, use of drugs, experience
of prison, disability, migration status, and/or profession –
including sex work. The HIV response requires great effort
to eliminate the stigma and discrimination faced by women
living with HIV and other key affected women, particularly
within health services. Hoping that as we move towards the
finalisation of Provincial Implementation Plans, these issues
will be taken seriously, and the complexity of women’s
HIV risks and vulnerabilities, as well as the need to address
fundamental determinants, are totally acknowledged and
adequately addressed.
The fact that South Africa is being guided by an NSP, that
is informed by Know Your Epidemic/Know Your Response
(KYE-KYR) approach, which extracts and highlights key
populations (which includes almost everyone), is not a bad
thing – but we just hope that implementation plans, will
indeed extract clear interventions for groups, particularly
women and girls, women and girls living with HIV, and
marginalised women and girls.
Since 2001, attention to the gender dimensions of HIV
has grown. The HIV epidemic has necessitated increased
focus for advancing gender equality to ensure better and
more successful HIV prevention, treatment, care, and
support. What the implementation plans should do is forge
stronger alliances between the HIV movement and the
women’s rights movement; reinforce advocacy for gender
equality and disability equity, within the context of HIV;
and enable all women to seek greater autonomy over our
sexual and reproductive health and rights, as well as greater
economic independence.
The discourse in the NSP highlights the increasing
availability of approaches for linking services – in particular
those that aim to address the sexual and reproductive health
and rights of women living with HIV, and marginalised and
key affected women, as well as broader key populations.
However, comprehensive services remain an exception,
…we need to move beyond the
commitments and oratory to what I call
robust, radical action and response…
Thoughts on the NSP from the women’s sector
…HIV response requires great effort to
eliminate the stigma and discrimination
faced by women living with HIV and
other key affected women, particularly
within health services…
22Thoughts on the NSP from the women’s sector
March/April 2012 ALQ
requiring accelerated action for an effective HIV response
tailored to women and girls in all our diversity. Women
identified an essential package of integrated HIV and sexual
and reproductive health and rights-related services, including
youth friendly services; a full range of contraceptive choices;
the ability to decide responsibly and freely whether and
when to have children; access to STI and cervical cancer
prevention, screening, and treatment; access to post-exposure
prophylaxis and emergency contraception; harm reduction
measures; and access to services to support safe conception,
pregnancy, childbirth, and infant feeding.
While significant progress is being made to increase
HIV-free delivery, women face major challenges in terms of
securing their sexual and reproductive health and rights, and
are at risk of being treated as ‘vessels’ and ‘vectors’ of sick
babies and disease. While prevention of HIV transmission
to babies has served as an important entry point for
HIV prevention and treatment services for women and
families, this approach alone is reductionist and inadequate,
as it primarily focuses on children and fails to prioritise the
rights and needs of women/mothers. Moreover, utilisation of
antenatal clinics is often hampered by judgmental attitudes
and ill-treatment by healthcare providers, particularly for
marginalised women. These rights violations undermine
efforts to improve all maternal and child health, as well as
HIV care. Integrated sexual and reproductive health and
HIV prevention, care, and treatment services must be available
and accessible for all women and girls, within and beyond the
antenatal settings, requiring accelerated operationalisation
of the WHO-endorsed four-pronged strategy to prevent the
vertical transmission of HIV.
The HIV prevention research field has equally yielded
…the discourse in the NSP highlights
the increasing availability of approaches
for linking services…
…rights violations undermine efforts to
improve all maternal and child health…
23
ALQ March/April 2012
promising results, with recent breakthroughs in womencentred
prevention technologies. However, access to existing
technologies continues to pose challenges as women globally
cite an unmet demand and need for female condoms. While
most notably the proof of concept for a microbicide has
been achieved, much more investment needs to be directed
to research in women-centred prevention technologies (such
as microbicides and female condoms; pre- and post-exposure
prophylaxis; microbicides for women with HIV), as well as
ensuring availability of and access to these technologies for
all women.
Whilst South Africa, and globally, increasingly
recognises the need for comprehensive, rights-based, and
evidence-informed sexuality education, consistent access to
comprehensive gender-sensitive sexuality education within
and outside schools, particularly for young women in all their
diversity, is still inadequate or even lacking. Young women
and girls require the necessary knowledge and skills to protect
themselves from HIV, to uphold the rights of those who have
HIV, and for all to lead healthy, productive lives.
Women leaders, who provide care in their communities,
are becoming increasingly mobilised and visible – yet, they
still lack adequate recognition, support, training, supplies,
or remuneration for all their work. In addition, female health
service providers living with HIV experience significant
levels of stigma and silence, affecting their own healthseeking
behaviour for effective treatment. Women and girls
further seek to more equitably share caregiving with men and
boys in their communities.
While we expect to get the Provincial Implementation
Plans and M&E system we need, put in place, we should
also take note and remember that women and girls from
every region of South Africa articulated a clear desire for an
HIV response that engages and addresses women and girls
in all our diversity, regardless of age, HIV status, sexual
orientation, or socio-economic status. An increased uptake of
HIV services will only occur when services respond to the
realities and needs of all women and girls, including those
of us living in rural and hard-to-reach areas, young women,
women living with HIV, women with disabilities, women in
conflict areas, transgender women, women who have sex with
women, women involved in sex work, refugees, women who
use drugs, and indigenous women – thus, our realities have to
be at the centre of the national response to HIV.
Thoughts on the NSP from the women’s sector
Mmapaseka Steve Letsike is the Chair of the SANAC
Women’s Sector. For more information and/or
comments, please contact her at msletsike@gmail.com.
…an increase in uptake of HIV services
will only occur when services respond
to the realities and needs of all women
and girls…
24Feedback from provinces
March/April 2012 ALQ
The Global Plan… Are women at the centre?
Feedback from provinces
Gahsiena van der Schaff
The ‘Global Plan for Elimination of HIV infection
in Children and Keeping Mothers Alive’ provides
an important framework to achieve the ambitious
goal of Zero new HIV infections amongst children
by 2015, as well as to keep ‘mothers alive’. In
achieving the goal set out in the Global Plan, it
will be crucial to have women’s realities and needs
at the core of the response; to take into account
the gendered barriers experienced by women in
accessing services; and to move forward within a
human rights framework. Although well designed,
the Global Plan can arguably only be as effective as
it is translated into national prevention of vertical
transmission scale-up plans that are responsive to
women’s needs and are thus, truly in the position
to facilitate women’s enhanced access to effective,
comprehensive and supportive programmes.
This particular series of provincial networking meetings
facilitated by the AIDS Legal Network (ALN) took place
from October to November 2011 in Mpumalanga, Eastern
Cape, Northern Cape, Western Cape, North West, KwaZulu
Natal, Limpopo and the Free State. Networking partners in
the various provinces represented various sectors, such as
gender, women, human rights, child rights, HIV, home-based
care, faith-based sector, chapter nine institutions, local health
service providers, and HIV support groups, and the meetings
are free spaces for debating, discussing, analysing challenges,
and collectively identifying human rights advocacy strategies
relevant to the areas in the provinces. Based on recognising
the importance of the Global Plan for the prevention of
vertical transmission of HIV, whilst acknowledging the
need to equally ensure that women’s realities and needs are
taken into account, the meetings sought to explore current
and newly emerging challenges to the prevention of vertical
transmission of HIV; to analyse whether or not and the
extent to which women’s realities and needs are at the core
of programme design and implementation; and to collectively
identify and develop potential advocacy strategies to ensure
national scale-up plans that ensure both Zero new infections
in children, and Zero stigma and discrimination against
women living with HIV.
Prior knowledge among participants about the Global
Plan was extremely low. Two provinces (Eastern Cape and
Mpumalanga) each had an individual who had heard of the
Global Plan and Millennium Development Goals (MDGs)
though were unable to provide details of the plan, while
another province (KwaZulu Natal) had three individuals who
were knowledgeable about the plan. As there was mostly
consensus on the challenges around the national prevention
of vertical transmission programme, most provinces came up
with similar human rights strategies moving forward.
The topic for discussion at the meetings latched onto
and extended the virtual consultation on the Global Plan,
which was conducted as a partnership between ALN
and GCWA (Global Coalition on Women and AIDS) in
25
ALQ March/April 2012
October 2011, and which focused on collating women’s
experiences, voices and opinions on prevention of vertical
transmission programmes in the 22 priority countries.1 The
article is based on the dialogue, debates and discussions
from eight provincial meetings, and will introduce some of
the challenges and concerns raised, provincial experiences
and opinions, as well as the human rights advocacy
strategies identified, by civil society partners participating in
these meetings.2
The Global Plan principles for succ ess
The Global Plan provides a foundation for countries to
move towards ending new HIV infections among children and
keeping mothers alive. Though only launched a few months
ago (June 2011), hardly anyone was aware of the Global Plan
or of national scale-up plans to be developed in response to
the Global Plan. This lack of knowledge and awareness begs
the question as to how to hold government and ourselves,
as civil society, to account for the implementation of a
plan when we are unaware of it. Neither can it be expected
that community members will actively participate in and
benefit from a programme unknown to the majority. It is
not surprising then that one of the strategies in all provinces
is for both the national and global prevention of vertical
transmission plans to be widely disseminated and discussed,
most importantly in remote and rural areas.
The success of the Global Plan is based on four key
principles: 1) Women living with HIV must be at the centre
of development and implementation of national vertical
transmission plans; 2) States must take ownership of the
plan; 3) Leveraging synergies, linkages and integration for
improved sustainability; and 4) Shared responsibility and
specific accountability. Whilst debating the meaning and
implications of these principles, participants highlighted key
strategies for realising each principle.
Women living with HIV must be at the centre
Firstly, for government to make this principle a reality,
positive women’s voices, views and opinions based on their
experiences must be widely and actively sought, taken
seriously and adequately responded to. To achieve the goals
of ending new HIV infections among children by 2015 and
keeping mothers alive will necessitate that the plan is based
on what women living with HIV think, feel and recommend,
taking into account positive women’s needs, challenges and
realities and putting things in place to avoid adding to positive
women’s challenges, or ‘put more stress on positive women’,
or worsen their risks and vulnerabilities.
Secondly, positive women must be trained, paid and posted
at health centres in their areas to take up issues of complaints
on behalf of women accessing the service, and to monitor
antenatal service provision. Care givers must also be trained
to identify and pass on information, including information
of rights violations at a family and community level, to
NGOs who can take up these issues. Regular feedback must
be provided to the community and health centres about the
progress made.
…necessitate that the plan is based on
what women living with HIV think, feel
and recommend…
Feedback from provinces
26Feedback from provinces
March/April 2012 ALQ
Thirdly, to enhance women’s access to quality services, as
well as to help and support, all stakeholders must be engaged
and involved in, starting at grassroots level, educating
the community about their rights, taking complaints and
experiences of stigma and discrimination, and mitigating
stigma and discrimination, so that women can feel free to
seek help.
Fourthly, regular calls must be made to various
community-based groups and structures, including support
groups, community leaders, NGOs and the community
at large, to ensure that the family and community take
responsibility to support and provide adequately for positive
mothers and their infants. Community radio stations must
be approached to get involved and to develop programmes
calling for support for positive women who are pregnant or
have delivered their children, and discussing the continued
challenges affecting their families and communities. To
ensure greater support for women living with HIV and their
families, forums could be established in every community
for NGOs to engage with, and reach out to the community at
grass roots level as well as the leaders, to call on their support
and responsibility to ensure mothers live longer and infants
are not newly infected with HIV post-delivery.
And lastly, give all women who test positive for HIV,
regardless of their CD4 cell count or pregnancy, access
to ARVs.
States must take ownership of the plan
To show that government is serious about reducing
new infections among children and keeping mothers alive,
government has to, as a matter of urgency, get all departments
and all communities involved in taking responsibility to
actively work towards this goal. It is, however, crucial
that this is done within the legal framework of the country,
and the protection of rights prioritised in all aspects of the
programme. In order for government to take ownership of
the national prevention of vertical transmission programme,
participants felt strongly that government must:
• Consult with and ensure meaningful participation of
all stakeholders, including the participation of civil
society in AIDS Councils at provincial and district
levels
• Ensure that planning processes, as well as M&E
systems, are transparent and include clear mechanisms
of accountability
• Monitor and evaluate the progress made towards
implementation, and remove any barriers and
challenges impacting on timely implementation of
the plan
• Ensure that an effective programme is put in place,
including adequate costing and budget, to actively
reduce or eliminate stigma and discrimination as
barriers to access to services
• Increase efforts to improve coverage in rural areas
• Develop a communication strategy promoting
messages of support for positive women in general,
and positive mothers and their families in particular,
so as to increase women’s access to and benefit from
prevention of vertical transmission services
• Design and distribute easily accessible and
user-friendly material providing comprehensive
…a health plan that suits women,
protects their rights and caters for
their needs…
27
ALQ March/April 2012
information about the programme, including
information as to where and when the services
are available
Improve sustainability through linkages and integration
To improve sustainability of the programme it is crucial
for government to come up with and implement a health
plan that suits women, protects their rights and caters for
their needs. Although home-based care givers care for the
sick, this ‘care’ could be expanded to include breastfeeding
mothers and their infants, as this will decrease the chance
of women ‘falling through the cracks’ after birth, due to the
lack of follow-up. In addition, while protecting the right to
privacy and avoiding family members asking questions about
care worker’s visits, it is important to get care workers to
provide ongoing support to women who participated in the
programme, and to also engage the family and church to
support and assist all women who have babies.
It is essential to link NGOs working in the communities
with various government departments, including the
Department of Home Affairs, to speed-up and facilitate
access to birth certificates for women and to have access to
health and social services. At the same time it is important
to set-up and/or strengthen support structures for women to
decrease the risk of women defaulting on their treatment;
provide spaces for women to share their experiences and
challenges; and to increase women’s levels of adherence to
the programme.
Shared responsibility and specific accountability
Communities, service providers, government structures,
the faith community and all other stakeholders must play
their role in mobilising communities in supporting and taking
responsibility for reducing new HIV infections among children
and keeping mothers alive. To facilitate this, government must
allocate adequate funding, including to civil society, must
encourage everyone’s involvement and participation in all
aspects of programme design and implementation, and must
call on all leaders in the community to actively discourage
stigma, discrimination, violence and rejection at family and
community level.
There is also the need to develop programmes aimed at
changing society to one less gendered and free of stigma and
discrimination, so as to build communities that are supportive
of women’s participation in prevention of vertical transmission
programmes. For these programmes to be successful, church
leaders and faith-based communities have to show leadership
in transforming discriminatory attitudes and practices
preventing women from accessing and benefiting from these
and other services.
The four prong approach to prevention of
vertical transmission
The Global Plan proposes a four-prong approach for
the prevention of vertical transmission of HIV, namely to
prevent HIV among women of reproductive age; to provide
comprehensive reproductive health services to women living
with HIV; to prevent HIV transmission to infants during
Feedback from provinces
…allows its users to make their own
choices and where these choices are
respected unconditionally and fully
provided for…
28Feedback from provinces
March/April 2012 ALQ
are fully provided for. Besides the fact that the community
is not a safe environment for women to make sexual and
reproductive choices, reproductive programmes are not
designed nor allow for most women to make informed choices
about sex and reproduction. In addition, parents/guardians,
teachers, faith communities and society in general, prescribe
societal norms that are gendered, leading to a situation in
which women are disadvantaged, policed and punished for
making their own choices, thus seemingly justifying the
violation of women’s rights. This is further compounded by
the taboo on ‘sex talk’ in general; teachers’ inability to think
and teach/discuss issues of sex and sexuality outside of the
societal norms, thus failing to provide rights-based sex and
sexuality education, and perpetuating negative connotations,
as well as stigma, discrimination and other rights violations
as and when women make their own choices regarding sex
and reproduction. While many women do not know their
rights, those who know and dare to exercise their sexual and
reproductive rights are often silenced, judged, abused and
rejected as a result.
In addition to these societal norms and discriminatory
practices impacting on women’s sexual and reproductive
decision-making, access to comprehensive reproductive
healthcare for women is further limited due to poor conditions
in healthcare settings, including lack of resources and health
care workers’ attitudes; long distances to health services,
pregnancy, birth and breastfeeding; and to provide treatment
care and support to the woman, infant and family members.
Recognising that national prevention of vertical
transmission programmes are, in principle, based on this
four-prong approach, participants discussed each of the
prongs in more details as to the progress made towards the
implementation of this approach.
Do women of reproductive age have access to
comprehensive reproductive health services?
Participants, although commending the progressiveness to
impose the ‘duty’ on states to prevent HIV and pregnancy
among women of reproductive age as an integral part of this
programme, collectively agreed that women of reproductive
age do not have access to comprehensive reproductive health
services. The meetings identified comprehensive reproductive
health services as services which are available where women
live; which offer or afford easy access to a full range of
reproductive health options to all women (including hormonal
injection, diaphragm, pills, termination of pregnancy, female
condoms, male condoms, and voluntary sterilisation); and
which are of high quality and provided in a non-judgemental
and non-discriminatory environment.
A health service can only be as accessible and
comprehensive as it allows its users to make their own choices
and where these choices are respected unconditionally and
…female condoms remain scarce in
most clinics, whilst male condoms are
available and accessible everywhere…
…women’s needs and realities are
largely ignored, especially in the
context of exclusive breastfeeding…
29
ALQ March/April 2012
Feedback from provinces
hostile at times, which further deters women from accessing
services. The fear of stigma and discrimination, as well
as the lack of confidentiality greatly impacts on positive
women’s ‘choices’ as to whether or not and when to access
health services. The lack of integration of service poses an
additional challenge, as ‘services are not all in one place, and
so one is sent from the one to the other section having to sit in
queues for most of the day, or have to come on another day’.
Does the current programme adequately prevent HIV
transmission to infants, during pregnancy and after birth?
Partners were divided in their responses to the question
as to whether or not current programmes are doing
enough to prevent transmission of HIV to infants. The
ones who felt that ‘enough’ is being done, were however
unanimous in that ‘enough’ is only being done to prevent
HIV transmission during pregnancy, but not after birth.
Although women participating in the programme are provided
with Nevirapine and offered a caesarean birth to prevent
the risk of HIV transmission to the infant, many partners
disagreed that enough is done, based on the fact that even
during pregnancy women’s rights continue to be violated, in
that women are often denied their choice to make informed
decisions regarding HIV testing, and after childbirth women
are seldom in the position to freely decide whether or not to
breastfeed, given the pressures by healthcare providers and
family members.
Partners also felt that women’s needs and realities
are largely ignored, especially in the context of exclusive
breastfeeding, which is difficult for women who want to keep
their HIV status private. Healthcare providers aggressively
promote exclusive breastfeeding, at times to the point of
not informing women of the option of formula milk feeding
or of the possible risks attached to breastfeeding. In reality,
especially in rural areas; and inadequate information and
resources available to women of reproductive age. Participants
also highlighted that while family planning in general mainly
consists of injections and tablets, many clinics do not provide
pills, only injections; information about termination of
pregnancy is rarely provided, as nurses often assume women
want to be pregnant, or refuse to provide this information
due to their own religious beliefs; and that female condoms
remain scarce in most clinics, whilst male condoms are
available and accessible everywhere.
Do women living with HIV have access to comprehensive
reproductive health services?
Participants again were united when responding to this
question in that according to partners, there is lack of access
to comprehensive reproductive health services for women
living with HIV, partly based on the perception that women
living with HIV are not to be sexually active, thus not in need
of reproductive healthcare. In some instances, women living
with HIV are even offered, under the guise that it is in their
own, their families, and society’s best interest, to be sterilised,
with little to no access to information about the procedure
and/or consequences of such procedure.
The attitude of nurses, especially towards women living
with HIV, is ‘off-putting’ and insulting to the point of being
…the lack of interest in mothers after
birth is evident in the lack of follow-ups
and after care provided…
30Feedback from provinces
March/April 2012 ALQ
respond and deal with this situation, and/or information on
how to care for the mother and child when she gets sick.
Women are also often sent home without the necessary
information on adherence and the importance of regular
check-up’s, whilst nurses too are seldom equipped to
empower women on how to disclose to their families and
establish much needed support systems.
Identified barriers and challenges
According to partners, the way we address the challenge
of reducing new HIV infections among children and keeping
mothers alive is short-sighted; fraught with gross human
rights violations against women in general, and positive
women and pregnant women in particular; continuously
fails to address, or respond to, women’s needs, realities and
challenges, or the root causes of women’s heightened and
disproportionate vulnerabilities and risks to HIV.
Barriers to women’s access to comprehensive prevention
of vertical transmission programmes, as identified by partners,
include health services and health facilities; the failure to
respond to women’s realities and needs; violence and abuse;
stigma and discrimination; socio-cultural and religious beliefs
and practices; and the lack of human rights protections.
Health services and health facilities
A necessary component of a comprehensive sexual and
reproductive service is access to quality healthcare, free of
judgment and discrimination, close to where women live.
Prevention of vertical transmission services are not equally
accessible to all women for various reasons, including:
• Lack of access to healthcare and healthcare
information for women in rural, farming and
remote areas
women who choose formula feeding over breast feeding find
themselves watched, gossiped about, judged, discriminated
against, rejected or isolated by family, community and
healthcare providers alike. As some women are ‘scared to be
found out’ to be HIV positive, they ‘choose’ breastfeeding,
while working women who opt for breastfeeding will
have difficulties, as workplaces, including civil society
organisations, do not accommodate women and their infants
at work, and also have no facilities for childcare.
Despite the challenges presented by both options, partners
stressed that it should still be the woman who should freely
and informed decide which option best suits her.
Is there sufficient support for women, infant and the family
members after birth?
There is definitely not sufficient support provided to
women, let alone her family, after birth. Participants also
pointed to healthcare providers that are forthright about their
quest to have babies born free of HIV; thus the focus on the
mother is mainly during pregnancy, while the lack of interest
in mothers after birth is evident in the lack of follow-ups and
after care provided.
In addition to discrimination and stigma, the family of
a positive mother generally lacks sufficient information to
…continuously fails to address,
or respond to, women’s needs,
realities and challenges, or the root
causes of women’s heightened and
disproportionate vulnerabilities and
risks to HIV…
31
ALQ March/April 2012
Feedback from provinces
• Lack of adequate information and/or explanations
to women on how to administer and adhere to
medication, as nurses are ‘too much in a hurry’
Women’s realities and needs
Healthcare services are only as beneficial to women, as
they are responsive to women’s realities and needs. However,
women’s realities and needs are seldom at the centre of
programme design and service provision, as the majority of
healthcare providers do not see women as people in their own
right and with their own needs (‘away from being mothers’).
Hence, women’s needs, experiences and backgrounds are
generally not considered when entering the programme.
Women have many fears linked to the participation in
prevention of vertical transmission programmes, which
most of the time are not responded to by healthcare
providers. Women are afraid to tell partners they are
HIV positive for fear of being rejected and abused, and
are afraid of being labelled ‘loose’, as a result of their
positive diagnosis. Women fear raising the issue or
demanding condom use as it makes them uncomfortable
to speak about sex, and because ‘they fear being accused
of sleeping around’, and becoming ‘the object of
suspicion and blame’. Women are scared of disclosure and
breastfeeding, because of the fear of ‘being found out’.
Women in abusive relationships do not speak-up, and are
afraid to take medication for fear of partner’s reaction
and violence; so women default. Women fear community
making comments and asking questions, and to avoid this
many women do not attend ANC; or deliberately present
late to the clinic, while some only come when in labour.
Partners felt strongly that although these realities and fears
are known, programmes and services fail to respond to
these barriers – thus limiting women’s access to services.
• Distance to healthcare facilities and lack of resources
to gain access to clinics, as well as long queues and
waiting periods, with, at times, no service provision
as women are asked to return the next day
• Health services in antenatal clinics and hospitals are
‘unprofessional’ and extremely hostile in many areas
deterring women from accessing these services for
fear of ill-treatment
• Lack of confidentiality and involuntary disclosure of
women’s positive HIV status by healthcare workers
and clinic structures, including ‘special rooms
and staff’ known to only be for women living with
HIV and clear identifications of HIV test results on
patients’ folders
• Many healthcare providers are ‘very much rude,
insulting and harsh’ to young women who are
pregnant, and their attitudes towards positive women
are ‘harsh and judgemental, and downright hostile’
• Neither the messages, nor counsellors or other service
providers, sufficiently engage men in the prevention
of vertical transmission, which not only perpetuates
the perception that it is women’s responsibility, but
also manifest the stigma of women as the ones who
are to blame for bringing HIV into the homes
…although these realities and fears are
known, programmes and services fail to
respond to these barriers – thus limiting
women’s access to services…
32Feedback from provinces
March/April 2012 ALQ
Violence and abuse
Gender violence increases women’s HIV risks and
vulnerabilities and women’s HIV positive status increases the
risk of violence or leads to more violence. The experience of
violence and abuse is a barrier to accessing quality healthcare
and living a quality life.
Most women find out about their HIV positive status
when pregnant. To prevent having to experience abuse on
disclosing their HIV status, some women opt for homebirths,
while others participate in the programme, without disclosing
their HIV status for fear of negative consequences. Women
may also choose not to take ARVs, for fear of the partner
discovering the medication.
Most healthcare providers do not screen for signs of abuse
or ask a woman if she is in an abusive relationship. Many do
not even ask how her positive status will be received by her
partner. (‘Maybe they deliberately do not want to be informed
that the woman is in an abusive relationship because then
it adds more work for them’). On the contrary, if healthcare
workers know that a woman is in an abusive relationship,
there is insufficient follow-up and support. Even if the woman
has access to a shelter, there are limited resources available
to shelters to sufficiently assist women during pregnancy
and ensure successful participation in prevention of vertical
transmission programmes, as due to lack of funds shelters
may not be in the position to provide formula milk.
Stigma and discrimination
Despite all the efforts, HIV-related stigma and
discrimination is very much alive and rife in all spheres of
society, and continue to be one of the main barriers for
women’s access to services. At the same time prevailing
stigma and discrimination also greatly impact on the extent
to which women can freely participate and benefit from
programmes to prevent vertical transmission of HIV.
Lack of information
There is a general lack of correct and accessible
information, as well as a lack of understanding, about
prevention of vertical transmission programmes. Information
available is often inaccessible due to language barriers, or
information provided is unclear, value-based, moralistic, and
lack sufficient facts about the benefits and risks associated
with these programmes, as well as women’s rights in the
programme. Subsequently, women have inadequate and/or
mixed information potentially impacting on their decisions as
to whether or not and when to access services.
Culture, traditions, gender and religious beliefs
Socio-cultural and religious norms and beliefs greatly
influence the extent to which women are in the position to
make sexual and reproductive choices, and access services.
The very same norms and beliefs define men as ‘head of
households’ and ‘decision-makers’, and women as ‘house
keepers’ and ‘child bearers’; cause men to refuse condom use
(as ‘men do not fight with their clothes on’); and makes being
pregnant and giving birth ‘a matter of pride’ for women and
their families. Practices of lobola and polygamy further
entrench women’s lesser power to make free and informed
…despite all the efforts, HIV-related
stigma and discrimination is very much
alive and rife in all spheres of society…
33
ALQ March/April 2012
choices about sex and reproduction, not only increasing
women’s risk to HIV, but also severely impacting on women’s
access to healthcare, as women are not ‘in control’ of these
decisions. In addition, cultural beliefs may favour homebirth,
thus denying women access to healthcare and increasing
the risk of vertical transmission of HIV, despite services
being available.
Participants emphasised that as long as male domination,
patriarchy, and the ‘power of men’, at the expense of women’s
ability to make their own choices regarding whether or not
they want to be pregnant or have unprotected sex, prevail,
these programmes will remain ineffective.
Lack of human rights protections
Although women’s rights are constitutionally guaranteed
and are at the core of legislative and policy provisions, women
continue to experience gross human rights violations in all
spheres of life, including within health services. Prevailing
rights abuses increase women’s risks to HIV, whilst living
with HIV and accessing prevention of vertical transmission
services increase women’s risks of further rights abuses. The
key to achieving the goals of eliminating new infections and
keeping mothers alive is to ensure human rights are promoted
and protected – in policy and practice. It also requires a
major shift in sexual and reproductive healthcare provision
from the current situation of judgemental, discriminatory
and directive service provision to one that is firmly based on
rights protections in all aspects of service provision. To ensure
the promotion, protection and advancement of women’s
rights in service provision it is as essential to enhance
levels of knowledge about their rights, as it is necessary to
ensure accessible redress mechanisms as and when their
rights are violated.
Priorities for advocacy strategies
Recognising the challenges and barriers impacting on women’s
access to prevention of vertical transmission programmes, as
well as on the effectiveness of these programmes, partners
identified the following key priorities for change.
• Cultural, traditional, and religious beliefs, values and
norms create, contribute and perpetuate women’s risks
and vulnerabilities to HIV, as well as cause barriers
to women’s access to HIV-related services – hence,
an essential component of prevention of vertical
transmission programmes must be a comprehensive
plan to address and transform norms, values and
beliefs that ‘harm’ women
Feedback from provinces
…information provided is unclear,
value-based, moralistic, and lack
sufficient facts about the benefits
and risks associated with these
programmes, as well as women’s rights
in the programme…
…key to achieving the goals of
eliminating new infections and keeping
mothers alive is to ensure human rights
are promoted and protected – in policy
and practice…
34Feedback from provinces
March/April 2012 ALQ
transmission, all relevant stakeholders, including
women and women living with HIV, must be
meaningfully involved and participate in the design,
implementation, and monitoring of the national
prevention of vertical transmission scale-up plans
FOOTNOTES:
1. The virtual consultation report can be accessed on www.aln.org.za.
2. A total of 187 partners participated in the meetings.
• As long as there is male dominance and patriarchal
systems, giving the ‘power to men at the expense of
women’, programmes will not reach women and be
ineffective – thus, prevention of vertical transmission
programmes must include concrete plans to challenge
and transform the gendered context of society
• Recognising the adverse impact on women, healthcare
providers and the way sexual and reproductive health
services are provided, must radically change so as
to ensure that women have access to factual and
rights-based information, and to services that are
rights-affirming and truly responsive to women’s
realities and needs
• Comprehensive and quality prevention of vertical
transmission services must be equally accessible to
all women
• The promotion and protection of human rights
must be guaranteed in all aspects of programme
implementation – hence, the need to roll-out
rights-based information and education about
programmes across all communities, as well as the
provision of accessible redress mechanisms
• To ensure effective, supportive and comprehensive
programmes for the prevention of vertical
…it is as essential to enhance levels of
knowledge about their rights, as it is
necessary to ensure accessible
redress mechanisms…
Gahsiena van der Schaff is the Campaign and Advocacy
Coordinator at the AIDS Legal Network (ALN). For more
information and/or comments, please contact her at
campaign@aln.org.za.
…ensure that women have access to
factual and rights-based information,
and to services that are rights-affirming
and truly responsive to women’s
realities and needs…
35
ALQ March/April 2012
Seen at ICASA
Active at ICASA…
36We are everywhere…
March/April 2012 ALQ
Linda RM Baumann
The foundation of one’s economic justice and
freedom to be who one is, as a woman in Africa,
has faced far more discrimination over the years
just because of ones physiology. The additional
label of one’s sexual orientation and gender identity
has added even more layers of discrimination,
which makes it much more difficult for lesbian,
bisexual and transgender people to freely be
themselves, and to access information, education,
employment, and the list goes on.
Where I come from, there is a definite identification
of what ’rural’ is, due to the classification of local
government boundaries. However, I would like to take this
classification broader, as the element of urban townships and
its demographics clearly manifest that the living conditions
are to the standard of what people are facing in areas,
commonly identified as rural.
Lesbian, bisexual and transgender people in the urban
townships are much closer to resources, as compared to
lesbian, bisexual and transgender people in the far rural areas.
Whilst these resources and services are supposed to empower
them, their living conditions do not allow them to empower
themselves, because of the high levels of homophobia – be it
political, social, religious, and/or cultural.
As an organisation, we have strategically framed our
work to be inclusive of all lesbian, bisexual and transgender
women, irrespective of where they live, as we work across the
country. The community facilitators who we work with on the
ground are faced with horrible cases of what lesbian, bisexual
and transgender people are going through on a daily basis,
as there is no infrastructure to accommodate them, let alone
We are everywhere…
The empowerment of lesbian, bisexual and transgender women in rural areas of Namibia1
37
ALQ March/April 2012
We are everywhere…
services that would be able to assist them with and through
the experiences and challenges they are faced within their
communities, such as forced marriages, sexual violence,
denial of education, and being disowned by their families.
Out-Right Namibia has now mainstreamed its
programming through mainstream human rights and health
organisations to ensure the inclusion of sexually diverse
people. Upon reports received from the field, lesbian and
bisexual women, and transgender people, are further at risk,
due to the segmentation of our justice system, since the
Namibian legislative framework provides for two judicial
systems; the common law and customary law. And as for
lesbian, bisexual and transgender people in rural areas,
they are more faced with and confronted by the traditional
authorities, because their behaviours and actions are perceived
as cross-bordering the cultural values and norms, which not
only lead to further violations of their rights, but also to more
disempowerment of their aspirations.
It is within this context, that there is a great need to invest
in the skills and knowledge building of lesbian, bisexual and
transgender women to ensure empowerment is taking place,
and to have representation of these communities engaged in
key issues affecting their lives. In order to achieve this, the use
of information communication and engagement with support
groups are crucial, as it will demystify the lack of confidence
within the system, and also assist in identifying the actual
needs of communities by communities, as compared to being
designated what their needs are and what to do.
Another attainment that needs to be achieved is the
sensitisation of the women’s movement to include lesbian,
bisexual and transgender women’s issues in their agendas,
by ensuring the visibility of our existence in and to the
discourse of women, as well as the need to be included in
agendas affecting our lives, including strategic economic
empowerment agendas.
FOOTNOTES:
1. This contribution is based on a paper presented at a CSW 2012 Side
Event, hosted by ILGA/RFSL, on 27 February 2012.
…the sensitisation of the women’s
movement to include lesbian, bisexual
and transgender women’s issues in
their agendas…
Linda Baumann is the Director of Out-Right Namibia
(ORN). For more information and/or comments, please
contact her at lbaumann82@gmail.com.
38The Equality Court and HIV-related discrimination
March/April 2012 ALQ
Nonandi Diko
Legislative provisions
The principle of and right to equality and
non-discrimination are firmly enshrined in the country’s
laws and policies. Section 9 of the Constitution provides for
the right to equality and the right not to be discriminated
against on many grounds, including race, gender, sex,
pregnancy, marital status, ethnic or social origin, colour,
sexual orientation, age, disability, religion, conscience, belief,
culture, language and birth, amongst other things2. Whilst
the Constitution does not equivocally list HIV as one of the
grounds based on which a person may not be discriminated
against, the interpretation and application of constitutional
and legislative provisions clearly indicate that any form of
unfair discrimination based on HIV status is unconstitutional
and thus, unlawful.
The Promotion of Equality and Prevention of Unfair
Discrimination Act (No 4 of 2000) (the Equality Act) was
passed in February 2000. The legislation was introduced to
give effect to the constitutional injunction of the right to be
treated equally and not to be discriminated against requiring
that national legislation ‘must be enacted to prevent or
prohibit unfair discrimination’3 and to promote equality.
The objectives of the Equality Act are, among others, to
enact legislation required by Section 9 of the Constitution
to give effect to the letter and spirit of the Constitution, in
particular, the equal enjoyment of all rights and freedoms
by every person, and the promotion of equality; to provide
remedies for victims of unfair discrimination, hate speech,
harassment and persons whose right to equality has
been infringed; and to fulfil South Africa’s international
obligations under binding treaties.
Among these obligations are those specified in the
Convention on the Elimination of All Forms of Discrimination
Against Women (CEDAW), and the Protocol to the African
Charter on Human and Peoples’ Rights on the Rights of
Women in Africa (the African Women’s Protocol)4. Article 2
of the African Women’s Protocol requires from State Parties
to address all forms of discrimination against women,
including through the enactment and effective implementation
Seeking redress…
The Equality Court and HIV-related discrimination
Although significant progress has been made in restructuring and transforming society and its institutions,
structural and systemic inequalities and unfair discrimination remain deeply embedded in social structures,
practices and attitudes, especially in the context of HIV, not only undermining the aspirations of our
constitutional democracy, but also limiting the extent to which individuals are in the position to claim their
rights and benefit from progressive legislation afforded by the South African constitutional and legislative
framework. HIV not only poses an enormous health crisis, but also threatens human rights1.
39
ALQ March/April 2012
The Equality Court and HIV-related discrimination
of legislative/regulatory measures. The African Women’s
Protocol also provides for the prohibition of harmful practices
that endanger the health and well-being of women, and calls
for modification of social and cultural practices with a view
to eliminate discriminatory and harmful traditional practices.
Furthermore, Article 2 of CEDAW obliges State Parties to
eliminate discrimination and embody the principle of equality
between men and women in laws and policies; and to take
all appropriate measures to eliminate discrimination against
women in the field of health care (Article 12)5.
However, despite various provisions in national and
international instruments intending to protect women from
unfair discrimination and violence, women continue to
be discriminated against and violated in all spheres of life,
often exacerbated by their actual or perceived positive HIV
status, with little access to redress mechanisms. The Equality
Court affords a potential redress mechanism for HIV-related
discrimination and other rights abuses experienced by women
living with HIV.
The Constitutional Court, in a unanimous judgment
prepared and delivered by Ngcobo J, in the matter of Hoffman
v South African Airways (Pty) Ltd 2001 (1) SA (CC) dealing
with the right to equality and not to be discriminated against
on the basis of HIV, took judicial notice of the fact that the
Equality Act recognises HIV status as a serious ground of
unfair discrimination and that the Act further stipulates this
in the Schedule of illustrative practices that are or may be
discriminatory, as well as incorporating a directive to the
Minister to consider the inclusion of HIV and AIDS in the
listed grounds.6
Although recommendations have also been made by the
Equality Review Committee, established in terms of Section
32 of the Equality Act, that HIV and AIDS be added as a
prohibited ground, especially as evidence suggests that people
living with HIV face discrimination and stigmatisation, and
that legal recourse is often not accessible, HIV status has,
as of yet, not been included as a ‘prohibited ground’ in this
legislation. However, Section 34 of the Equality Act includes
a directive stating that
…in view of the overwhelming evidence of the
importance, impact on society and link to systemic
disadvantage and discrimination on the grounds of
HIV/AIDS status, socio-economic status, nationality,
family responsibility and family status –
a) special consideration must be given to the inclusion
of these grounds in paragraph (a) of the definition of
‘prohibited grounds’ by the Minister;
b) the Equality Review Committee must, within
one year, investigate and make the necessary
recommendations to the Minister.7
The non-inclusion of HIV as a ‘prohibited ground’ is of
great concern as it has adverse consequences, especially for
…structural and systemic inequalities
and unfair discrimination remain
deeply embedded in social structures,
practices and attitudes, especially in the
context of HIV…
40The Equality Court and HIV-related discrimination
March/April 2012 ALQ
women living with HIV who continue to be disproportionately
infected and affected by HIV, and who constitute the majority
of people living with HIV in South Africa. The failure to
explicitly include HIV as a ‘prohibited ground’ further
undermines the rights of women who continue to experience
HIV-related stigma, discrimination and other rights violations
in all spheres of life; as well as the progress made towards
redressing the imbalances of the past and promoting equality
and non-discrimination. The non-inclusion of HIV may also
limit the accessibility to justice for individuals seeking redress
in the Equality Court, and impact on the attractiveness of the
use of an inexpensive, expeditious, easily navigated forum for
complaints concerning issues of HIV-related discrimination.
Without access to the Equality Courts, people seeking
redress for unfair discrimination would have to utilise
more costly and time-consuming solutions, such as the
ordinary High Courts or Constitutional Court in order for
the individuals to claim and benefit from their constitutional
rights to equality and non-discrimination. In reality, however,
the majority of individuals most affected by HIV-related
discrimination do not have the necessary resources to do so,
thus placing this vulnerable group in the position where they
are denied their rights to access justice.
The Equality Courts
The Equality Courts, established by Section 16 of the
Equality Act, complement the Constitutional Court, by
providing an alternative, more accessible, easily navigated
venue for equality claims. The reasoning applied in the
Equality Courts must follow the reasoning established by the
Constitutional Court in the existing equality jurisprudence.
The Constitutional Court has said that in order to prove a
breach of the right to equality, one must show that there has
been discrimination, that the discrimination is unfair, and
that it is not a justified limitation of the right in terms of
the limitation clause in Section 36 of the Constitution. The
limitation clause further states that in assessing whether the
limitation is justifiable or not, certain factors must be taken
into account, including the nature of the right, the importance
of the purpose of the limitation, the nature and extent of the
limitation, the relation between the limitation and its purpose,
and less restrictive means to achieve the purpose.
In the context of HIV, particularly when dealing with
discrimination against a woman on the grounds of her
…any form of unfair discrimination
based on HIV status is unconstitutional
and thus, unlawful…
…often exacerbated by their actual or
perceived positive HIV status,
with little access to
redress mechanisms…
41
ALQ March/April 2012
The Equality Court and HIV-related discrimination
HIV status, it is unimaginable that the limitation of her right
to dignity, equality and freedom could be seen as a justifiable
limitation, especially taking into account the degrading,
abusive manner and unequal treatment women living with
HIV often encounter in their homes, communities and in
many other sectors of society, including healthcare facilities,
because of the woman’s HIV status. Forced and/or coerced
sterilisation of women living with HIV in South Africa by
healthcare workers is but one example of gross human rights
violations women experience within healthcare provision.
Procedures and key features of the Equality Court
A complainant who wishes to lodge a complaint in the
Equality Court needs to complete an easy to understand,
user-friendly form, making the Equality Court more
accessible than other court mechanisms. Furthermore, the
Equality Act only requires complainants to make a basic
showing of discrimination, which means that on the face of
the papers lodged by the complainant, there must be sufficient
evidence/facts indicating that the complainant suffered unfair
discrimination. For a woman living with HIV, this means that
she would have to submit sufficient evidence indicating that
the reason that she has been discriminated against is because
of her HIV positive status. It would also be advisable, and
easier, if she had a witness who could attest and confirm that
she was treated differently or discriminated against based on
her HIV status.
If it appears that the complainant has suffered unfair
discrimination, then the respondent bears the burden of
proof and must show, on the balance of probabilities, that
the discrimination did not take place or, conversely, that the
discrimination was not unfair. This has the effect that the
evidentiary burden on the complainant is substantially eased,
as the onus is placed on the respondent to prove that the
discrimination was fair or instead did not occur.8
One of the key features of the Equality Courts is that
they are ‘specialist courts’ with unique procedures and
personnel that are specifically trained to deal with equality
issues. In addition, Equality Courts are especially designed
for unrepresented litigants. This means that a woman
who has been discriminated against on the basis of her
HIV positive status would not have to procure the costly
services of an attorney. If the woman is not familiar with the
court system, or not in the position to employ the services
of a legal representative to represent her, she has the benefit
…the non-inclusion of HIV as a
‘prohibited ground’ is of great concern
as it has adverse consequences…
…an inexpensive, expeditious, easily
navigated forum for complaints
concerning issues of HIV-related
discrimination…
42The Equality Court and HIV-related discrimination
March/April 2012 ALQ
of the trained clerks of these courts
who can assist her in lodging her
complaint.
The fact that a woman who
has been discriminated against
on the basis of her HIV status
can have the benefit of a trained
clerk representing her, arguably
further facilitates access to justice,
especially for people who may
not be familiar with the court
system. An additional feature and
advantage of using the Equality Court is that the proceedings
are usually conducted speedily and a complainant would not
have to wait years before the matter is heard, which is often
the case in other ordinary Magistrates and High Courts, due
to backlog where sometimes parties have to wait as long as
up to three years before the matter is heard. In terms of the
rules for procedures in Equality Courts, a matter may be
brought before a Magistrate for a Directions Hearing9, no
later than 37 days after lodging the complaint. This ensures
speedy justice for aggrieved parties and assists the movement
for instilling confidence in the judiciary.10
The practice of forced and/or coerced sterilisation
of women living with HIV, which is taking place in
some hospitals, would be one of the examples of unfair
discrimination to be heard by the Equality Court11. That
would be an ideal case to bring to the Equality Court as the
woman is discriminated against, firstly on the basis of being a
woman, and secondly on the basis of her HIV status amongst
other things.
An additional feature of the Equality Courts is that
the hearings are informal, thus setting an inquisitorial and
meditative as opposed to a formal and adversarial tone.
Furthermore, fairness, the right to equality and the interests
of justice prevail over mere technicalities. Whilst the Equality
Courts still apply the same rules as in the ordinary High
Courts and Magistrates’ Courts, these rules are not applied as
rigidly. As a result, cases heard at the Equality Court are less
likely to be delayed and/or postponed due to technicalities.
Furthermore, each party is responsible for their own costs as
opposed to the losing party paying the winners’ fees, which
also lowers the financial risks of lodging a complaint at the
court especially for indigent complainants12. One of the things
the complainant can ask for is an unconditional apology, as
…she also has the benefit of the
trained clerks of these courts who can
assist her in lodging her complaint…
43
ALQ March/April 2012
The Equality Court and HIV-related discrimination well as monetary compensations, for any damages a
person
may have suffered, such as emotional and psychological
trauma, as a result of HIV-related discrimination.
Gender Equality Cases
The Equality Court system has been successfully used for
gender equality in a high profile case, Z. Mpanza v. Sibusiso
Cele, also referred to as the ‘Umlazi T-Section case’. In 2008,
Ndunas (informal male leaders) in Umlazi, a township outside
of Durban, issued an edict that prohibited women from
wearing trousers in the community. The Ndunas argued it was
not traditional for women to wear trousers, and that doing so
contributed to moral degeneration and incidences of rape.
Shortly thereafter, a resident of Umlazi, Zandile Mpanza, was
chased by a mob of men who assaulted her, stripped her pants
off, and made her walk home partially naked for violating
the ‘code’ prohibiting women from wearing trousers. She
was not the only woman who had been subjected to violence
and harassment for wearing trousers in violation of the
supposed code.
With legal representation provided by the Commission
for Gender Equality, Mpanza took her complaint against the
men who instituted the ban to the Umlazi Equality Court. The
magistrate overseeing the case ruled in favour of Mpanza,
and ordered the removal and prohibition of the ban on women
wearing trousers because it unfairly discriminated against
women under the Equality Act. Two of the respondents,
Thulani and Sibusiso Cele, were ordered to unconditionally
apologise for implementing the ban. The four men who
attacked Mpanza are currently facing criminal charges in the
criminal courts for assault, malicious damage to property,
intimidation, and indecent assault13.
HIV-related cases brought to the
Equality Courts
Despite many incidences of HIV-related discrimination
in all spheres of society, there is thus far a lack of cases of
unfair discrimination based on a person’s HIV status, which
have been brought to the Equality Court. A general lack of
knowledge about this specific redress mechanism, as well as
the fact that HIV status is not explicitly stated as a prohibited
ground in the legislation, are arguably two of the reasons,
why Equality Courts are seldom sought as recourse for
HIV-related discrimination.
As already mentioned previously, there have been reports
of doctors and healthcare workers forcibly sterilising women
…the hearings are informal, thus
setting an inquisitorial and meditative
as opposed to a formal and
adversarial tone…
…anyone who experiences HIV-related
discrimination can go to the Equality
Court and seek redress…
44The Equality Court and HIV-related discrimination
March/April 2012 ALQ
on the basis that they are living with HIV. However to date,
no such cases of discrimination on the basis of HIV status
have been brought to the Equality Courts. Perhaps one of
the reasons could be the fact that if the women were to bring
such cases to the courts, they would be subjected to further
stigmatisation and discrimination, particularly since matters
in the Equality Court are usually conducted in an ‘open
court’, unless directed otherwise, meaning that any member
of the public would be allowed to attend the court processes,
and find out the HIV status of a person and this could have
adverse repercussions for the woman, as her HIV status would
be known by more people whom she would not necessarily
have wanted to know. Furthermore, her right to privacy would
be infringed over and above the discrimination and abusive
treatment and stigma she would most likely have to endure in
her home, community and in society.
The impact of the Equality Court
As already stated above, the Equality Act affords a
remedy for people who have been discriminated against
based on their HIV status. Thus, anyone who experiences
HIV-related discrimination can go to the Equality Court and
seek redress, such as an unconditional apology and/or damages
for the emotional and/or psychological trauma suffered as a
result of such discrimination. Although a potential avenue
for redress, it is crucial to also take into account the many
potential adverse implications and consequences for people
who choose to lay a complaint in the Equality Court.
Whilst the Equality Court is an attractive forum for many
reasons, such as the low costs, the benefit of being represented
by the clerk of the court in the event that the complainant is
unrepresented, and the fact that the matter can be conducted
expeditiously and that technicalities are overlooked in the
interests of justice, the fact that the proceedings are conducted
in an ‘open court’, carries potential risks of further stigma
and discrimination for the complainant. Bearing in mind that
matters brought to the Equality Court are often of a sensitive
nature, such as discrimination on the basis that one is living
with HIV, could mean that even if a complainant is successful
in her case, people would still know that the woman lodged
a claim on the basis of HIV-related discrimination, as
anyone can access court documents. Such risks of further
involuntary disclosure of one’s HIV status could potentially
deter women living with HIV from using this much-needed
and easily navigated forum of redress, for fear of secondary
discrimination and stigmatisation, which in turn impacts on
the accessibility and effectiveness of redress mechanisms
available for cases of HIV-related discrimination.
Perhaps a more appropriate approach in addressing
discrimination and stigma against women living with HIV
could be by way of conducting rights awareness campaigns
which include promoting understanding among people living
with HIV and their rights14, addressing broader inequalities
…risks of further involuntary disclosure
of one’s HIV status could potentially
deter women living with HIV from using
this much-needed and easily navigated
forum of redress…
45
ALQ March/April 2012
The Equality Court and HIV-related discrimination
through participatory education, creating a supportive and
confidential space for the discussion of sensitive topics,
mobilising community leaders to encourage greater openness
around sexuality and HIV-related issues within communities
by building on positive social norms15, as well as addressing
gendered inequalities; and creating an enabling and supportive
environment in which rights and freedoms are fully protected
and realisable for all.
Conclusion
The Equality Courts afford in principle recourse for
women who have been discriminated against based on their
HIV status. However, accessing redress also carries potential
risks and negative consequences for women who choose to
exercise their rights and lodge a claim of discrimination, as
this may further expose women living with HIV to stigma,
discrimination, violence and other rights abuses.
The Equality Courts also have the potential to both
compensate victims of prejudice, and to challenge the
attitudes of offenders; thus achieving both dimensions of
the Act: to prevent discrimination and to promote equality.
However, for the courts to have this dual impact, raising
public awareness and challenging the attitudes of offenders
have to become an integral part of orders and remedies
handed down by presiding officers in cases brought to the
Equality Court.16
FOOTNOTES:
1. Ntlama, N. 2004. The Challenge for democracy: Doing justice for
persons living with HIV/AIDS. [www.aifo.it/English/resources/
online/books/other…ntlama.doc]
2. The Constitution of the Republic of South Africa, Act 108 of 1996
3. Liebenberg, S. & O’Sullivan, M. 2001. ‘South Africa’s new equality
legislation A tool for advancing women’s socio-economic equality’.
In: Acta Juridica, p70.
4. See www.africa-union.org/root/au/Documents/Treaties/Text/Protocol
%20on%20the%20Rights%20of%20Women.pdf
5. A guide to Using the Protocol on the Rights of Women in Africa for
Legal Action. [www.equalitynow.org/sites/default/files/Manual%20
on%20Protocol%20on%20Women%20Rights%20in%20Africa_
EN.pdf]
6. Gutto, S. 2001. Equality and Non-Discrimination in South Africa:
The Political Economy of Law and Law Making. New Africa Books,
p228.
7. Section 34 of the Equality Act.
8. Lane, P. 2005. ‘Transformative Human Rights Unit’. In: South
Africa’s Equality Courts: An Early Assessment. [www.csvr.org.za/
wits/papers/paprctp5.htm]
9. A ‘Directions Hearing’ brings together the complainant, respondent,
and the Presiding Officer. It is at this Hearing where the Presiding
Officer will resolve all issues relating to the conduct of the proceedings
and other administrative and procedural matters, such as when the
parties can come to trial, whether anyone needs an interpreter and
whether assessors should be used.
10. Hauser, B. 19 May 2011. ‘The Equality Courts explained’. [www.
polity.org.za/article/the-equality-court-explained-]
11. ‘South Africa: HIV-positive women sterilised against their will’; City
Press. 7th June 2010.
12. Ibid.
13. Ibid.
14. Aggleton, et al. 2005. ‘HIV-Related Stigma, Discrimination and
Human Rights Violations: Case studies of successful programmes’.
In: Joint United Nations Programme on HIV/AIDS (UNAIDS),
UNAIDS Best Practice Collection. [data.unaids.org/publications/ircpub06/
jc999-humrightsviol_en.pdf]
15. Ibid
16. Lane, P. 2005. ‘Transformative Human Rights Unit’. In: South
Africa’s Equality Courts: An Early Assessment. [www.csvr.org.za/
wits/papers/paprctp5.htm]
…raising public awareness and
challenging the attitudes of offenders
have to become an integral part of
orders and remedies…
Nonandi Diko is a Policy Research and Advocacy Officer
at the AIDS Legal Network (ALN). For more
information and/or comments, please contact
her at advocacy@aln.org.za.
46Spreading the word at ICASA
March/April 2012 ALQ
Spreading the word at ICASA…
47
ALQ March/April 2012
AIDS Legal Network, The Global Coalition of
Women and AIDS
Most HIV infections in children occur in
low- and middle-income countries, and more than
90 percent are the result of vertical transmission.2
Approximately 1,000 babies acquire HIV every
day during pregnancy, birth, or breastfeeding.3
52% of all pregnant women living with HIV in
low and middle-income countries did not receive
anti-retroviral medication to prevent vertical
transmission of HIV in the year 2010.4 Many
countries still do not have sufficient services to
reach women who need them and even where
services are available, access and adherence
to prevention of vertical transmission services
remain weak.5 Yet, vertical transmission of HIV
is preventable and constitutes a key strategy in
effective HIV responses.
Setting the scene
It is possible to virtually eliminate vertical transmission and,
in doing so, the Global Plan towards the Elimination of New
HIV Infections among Children by 2015 and Keeping Their
Mothers Alive6 (the Global Plan) is an important tool. The
goal of the Global Plan is to reduce the numbers of new
HIV infections among children by 90%, and to reduce the
number of AIDS-related maternal death by 50% by 2015.
Although covering all low and middle-income countries, the
Global Plan prioritises the 22 countries7 estimated to have
the highest number of women living with HIV. During the
High Level Meeting on AIDS in June 2011, the goal of the
Global Plan was taken to the highest level, with governments
of the world committing to virtually eliminating vertical
transmission and reducing maternal deaths.
The 2011 Political Declaration on HIV/AIDS, in
conjunction with the Global Plan, provides an important
framework towards ending new HIV infections among
children by 2015, as well as toward the promotion and
protection of the rights and health of women. The Global Plan
does not seek to replace existing efforts, but rather to afford
a framework which supports countries to assess their work,
to cost what it would take to support pregnant women living
with HIV and to stop new infections, to mobilise resources,
to implement activities, and to monitor and evaluate
these interventions.
Based on the recognition that current programme
approaches have to be transformed, the Global Plan sets
forth, as a first key principle for success, that women living
Ensure that women’s voices are heard…
Ensure that women’s voices are heard…1
Building women’s meaningful participation in the scale-up
of prevention of vertical transmission programmes
48Ensure that women’s voices are heard…
March/April 2012 ALQ
with HIV are to be at the centre of the response, and that
HIV responses are guided by a human rights framework8. It
will thus be crucial to recognise and respond to the gendered
barriers, as experienced by women, in accessing prevention
of vertical transmission programmes at a national level.
At the same time, it is essential to listen and act upon the
recommendations and interventions made by women to
address these barriers.
In line with the above, the AIDS Legal Network (ALN),
South Africa, in partnership with the Global Coalition on
Women and AIDS (GCWA) undertook a virtual consultation
on the Global Plan among women in the identified 22
priority countries in October 2011. The consultation was
qualitative in nature, aiming to better understand women’s
realities and needs – as presented by women – with regards
to prevention of vertical transmission initiatives. To facilitate
participation of and engagement with women in the priority
countries, women and their organisations from across the
countries were actively involved in the virtual consultation,
from the early stages of survey development, to gathering
responses, analysing the data and collating the findings
and key messages. In addition, a diversity of networks of
women living with and affected by HIV, and women’s rights
advocates from the sexual and reproductive health and rights
movement, acted as focal points at a national and/or regional
level throughout the process.9
Nearly 300 women participated in the consultation, with
special efforts made to reach out to women who did not have
access to the internet. Thus, in some of the countries, the
survey was administered in-person and the responses later
entered into the on-line system for analysis.10 Women who
participated in the survey are between the ages of 18 and
50 years old. Almost half of the women participating also
indicated that they personally have sought out or accessed
prevention of vertical transmission services in their country.
This briefing paper presents the key gender barriers and
related recommendations, which women themselves have
identified and voiced throughout the consultation.
Key barriers to women’s acc ess to prevention
of vertical transmission programmes
Guided by national policies, prevention of vertical
transmission programmes are available in all the priority
countries.11 However, the identified gap between policy
development and its implementation, challenging the
effectiveness of national HIV responses is also applicable to
prevention of vertical transmission of HIV.12
Although specific challenges for the adequate
implementation of prevention of vertical transmission
programmes may differ by country and context, many of the
challenges appear to be similar across the priority countries.13
While the Global Plan refers to structural barriers, including
a wide range of social, cultural and economic factors that
impact on women’s access to and adequacy of prevention of
…crucial to recognise and respond to
the gendered barriers, as experienced
by women, in accessing prevention of
vertical transmission programmes…
49
ALQ March/April 2012
vertical transmission services14, the gender-specific barriers
to these services are not explored in detail. As such, it is
relevant to consider women’s views on and experiences with
prevention of vertical transmission programmes, and identify
the gender-related barriers that may affect their ability to
make use of such services.
It is clear from the responses that the unequal context
of society, where women and men are treated differently
and have different opportunities, greatly impact on
the extent to which women are in the position to make
informed sexual and reproductive health choices; to
access healthcare services; and to ultimately benefit from
available HIV prevention, treatment, care and support
programmes and interventions. Moreover, socio-cultural
and religious values and norms are as much key to women’s
risks and vulnerabilities, as they are additional barriers
for women’s access to prevention of vertical transmission
programmes.15 The following section outlines such barriers,
following the themes that emerged from the findings of the
virtual consultation.
Stigma and discrimination
Stigma and discrimination of women living with HIV, by
communities, healthcare workers and women’s families, were
highlighted by women as key barriers to service utilisation.
In cases where women did not know their HIV status, they
indicated that fear for stigma and discrimination led them to
not want to get tested. Moreover, women openly living with
HIV, reported experiencing stigma and discrimination in
the form of judgements, because they were having children,
and because they were seen as carriers of HIV that would
then spread.
…women are still not accorded their rightful status
when approaching clinics, since they are judged
and subjected to many unfriendly clinics and health
workers… [Swaziland]
Women also reported that the fear that these judgements
could be extended to legal sanctions in cases where
criminalisation of HIV has been established by law, make them
refrain from seeking services.16 In some cases, women noted
that given the degree of stigma and discrimination they risked
experiencing from healthcare providers, they turned instead
to traditional birth attendants. Alternatively, women would
chose to attend antenatal services without disclosing their
HIV status, in order to not expose themselves to mistreatment,
humiliation and discrimination.
In many instances, women living with HIV encountered
ill-treatment by healthcare providers, in the form of
derogatory communication and mockery.
As a woman from Botswana said:
…the discrimination and punishment of women living
with HIV for having children make us then not to
…it is essential to listen and
act upon the recommendations
and interventions made
by women to address these barriers…
Ensure that women’s voices are heard…
50Ensure that women’s voices are heard…
March/April 2012 ALQ
want to use services, because the risk is too high…
[Botswana]
Even in situations where women have made use of
prevention of vertical transmission programmes, some
reported feeling pressured into breast-feeding their children,
due to the high degree of stigma that would surround them,
should they choose not do so.
Abandonment, abuse and violence
A common theme throughout the reports was the fear
of abandonment, abuse and violence, and/or their actual
occurrence, serving as significant barriers to women’s
access to prevention of vertical transmission services.
The reports specifically highlighted that women were
often the first member of the household to discover their
status, through antenatal testing, and that this could
result in them being blamed for bringing HIV into the
household. Alongside with this blame, women reported
experiencing abandonment, abuse and violence by partners,
family, friends and/or the community at large. As a
result, some women would abstain from accessing services
and/or testing for HIV, or only do so at a late stage in
their pregnancy.
Respondents also noted that violence often existed
in the relationship prior to accessing the services and, as
such, engaging with the services represented a risk of this
augmenting. As a woman from South Africa said:
…if you are in an abusive relationship, the woman will
be scared to access the services, because she is scared
of her partner… [South Africa]
The consequences of accessing prevention of vertical
transmission services could be severe. Women reported that
they may be forced to leave their homes; shunned by their
partners, families and/or communities; or be subjected to
violence by their partners. As a woman from Botswana said,
a key barrier to women’s access to prevention of vertical
transmission services is:
…the discrimination that we face and the judgement,
sometimes violence from our families… [Botswana]
Male involvement
Respondents also indicated that men may not support
their partners to go to antenatal clinics and participate in
prevention of vertical transmission programmes, because of
societal norms and practices in particular those surrounding
pregnancy and delivery. Women reported that – as part of
the cultural norms – they were expected to be subservient
and humble, because they were women. In cases where
a woman’s partner did not want her to take part of these
…women would choose to attend
antenatal services without disclosing
their HIV status, in order to not expose
themselves to mistreatment,
humiliation and discrimination…
51
ALQ March/April 2012
services, she was expected to conform. Also, male partners
would sometimes see pregnancy and related healthcare
as a ‘woman’s issue’, and would thus refuse to be involved
or participate in prevention services, or even stop their
wives/partners accessing information and services.
While most partners were not willing to be engaged, some
women highlighted that in some societies it would be seen
as inappropriate to access services without their partner’s
involvement, thus limiting their access. This was exemplified
by reports that healthcare workers would sometimes ask
where the woman’s husband was before providing treatment.
Family dynamics, in particular the opinion of the
mother-in-law, would further compromise access to services.
Without the support and engagement of their partners,
respondents shared that they were unable to take part in
prevention of vertical transmission programmes or that their
involvement became more challenging, because of these
family dynamics. Women also indicated that these prevention
programmes neither tended to facilitate the engagement
and support of their male partners, nor address hierarchies
within families.
As a woman from Mozambique said:
…some women don’t do it (access prevention of vertical
transmission services) because they are afraid of their
husband… [Mozambique]
In line with this, a respondent from Uganda called for
greater awareness raising efforts, stating that:
…(countries) should sensitise their fellow women and
husbands and support them to take on the programme…
[Uganda]
Economic dependence
Poverty and economic dependence were highlighted
as additional factors hindering access to services, further
aggravating women’s dependency on the approval from
their partners and/or his relatives whether or not and when
to access services. Provision of free services did not offer
relief, as women still had to manage the costs related to
travel, medication and formula, amongst others. Also, the
time needed for accessing these services often involved
negotiations with their partners, and thus added barriers
to women’s ability to access prevention of vertical
transmission services.
In cases where the household money is controlled by the
male partner, these challenges may be more intense, as women
reported not being in the position to access the necessary
funds, unless they could obtain it from their husbands. At
the same time, even in cases where funds are not controlled
by male partners or there is no partner present, women are
often experiencing levels of poverty that leave them with
impossible choices: food or medication. As a woman from
Zimbabwe said:
…Competing priorities for use of limited funds in both
urban and rural areas to cover associated antenatal
costs and transport costs to health facilities. With
Ensure that women’s voices are heard…
…women are often experiencing
levels of poverty that leave them
with impossible choices: food or
medication…
52Ensure that women’s voices are heard…
March/April 2012 ALQ
…women are not featuring enough as women in
programmes and interventions…women as mothers are
only seen as the bearers of children who have to prevent
transmission to the child… [South Africa]
Acc ess in rural and remote areas
Rural women highlighted the challenges faced in
accessing services nearby their homes. They shared
that it was difficult for women – time and money-wise
– to undertake multiple trips to areas where services
do exist, and that this obviously would affect the levels of
service utilization.
Even in situations where prevention of vertical
transmission services are available in rural and remote
areas, women reported that healthcare workers were not in
the position to adequately care for the significant number
of women who needed these services, due to shortage
of personnel. Women also underscored that many times
available healthcare workers were not trained or sensitised
to provide prevention of vertical transmission services
without stigma and discrimination, thus adding to service
utilisation barriers.
In addition, respondents pointed out that women residing
in rural areas were hardly reached by HIV education and
awareness programmes, and often not informed about the
possibility to prevent their child from acquiring HIV.
As a woman from Lesotho said, prevention of vertical
transmission programmes are not equally accessible as:
…I am staying in one of the rural areas of my country
and not even once have I ever heard of people coming
to launch any of these programmes… [Lesotho]
the economic meltdown and inequalities, women are
left at a disadvantage. Many, especially those in f
emale-headed households struggle to make
ends meet… [Zimbabwe]
Comprehensive prevention of vertical
transmission services
Women underlined the challenges of HIV and sexual
and reproductive health services being located in different
places, as this added to the burden of travelling to different
locations and also increased the time and resources needed to
access services. Moreover, women noted that prevention of
vertical transmission services appeared to be only focusing
on avoiding HIV transmission to the infant, without taking
care of the women’s HIV-related or overall health needs.
As such, there would not only be a lack of care and
support for the woman during the delivery process, but also
lack of support for the woman to care for their infants after
child birth. Women particularly underscored challenges
around continued access to treatment to sustain their health,
as well as a limited ability to access formula to feed their
infants. As a woman from South Africa said:
…women identified the lack of their
meaningful involvement as a barrier to
the effective implementation…
53
ALQ March/April 2012
Ensure that women’s voices are heard…
Meaningful participation of women living
with HIV
One of the four key principles for success of the
Global Plan is that women living with HIV are to be at the
centre of the response.17 Yet, women identified the lack of
their meaningful involvement as a barrier to the effective
implementation of prevention of vertical transmission
programmes. This was noted at all levels, from the
development of plans and programmes, to the implementation
and monitoring and evaluation.
While some women reported having been asked to
participate and asked for their recommendations, they noted
that there remained a gap in terms of their recommendations
being truly listened to and acted upon.
As a woman from Uganda said:
…I strongly believe that change can be effected, but
there is the need to meaningfully involve those who
have gone through/are going through the experience…
[Uganda]
…healthcare workers were not trained
or sensitised to provide prevention of
vertical transmission services without
stigma and discrimination, thus adding
to service utilisation barriers…
Recommendations for Action
Based on the above findings, seven key
recommendations for action emerge:
1. Include anti-stigma and discrimination
campaigns and awareness raising as an integral
part of the roll-out of prevention of vertical
transmission programmes
2. Strengthen social and legal systems to support
women who fear or experience abandonment,
abuse and/or violence
3. Ensure that prevention of vertical transmission
programmes strive not only to avoid HIV
transmission to infants, but also ensure
optimal health of women, while upholding and
protecting women’s rights
4. Work with partners to address cultural barriers,
including norms around masculinities and
womanhood, so as to increase women’s
empowerment and strengthen male partners’
support and engagement with prevention of
vertical transmission programmes
5. Link prevention of vertical transmission
programmes to women’s economic
empowerment initiatives
6. Evaluate the need for increased availability of
prevention of vertical transmission services
in rural and remote areas and determine ways to
better enable women in these areas to
access services
7. Reach out to and meaningfully engage women
living with HIV at all levels of prevention of
vertical transmission programmes
54Ensure that women’s voices are heard…
March/April 2012 ALQ
Conclusion
The findings of this virtual consultation reveal that
there are serious gender barriers to women’s access to
comprehensive services to prevent vertical transmission
of HIV. While virtually eliminating vertical transmission
and saving mothers’ lives is possible, doing so requires
placing women living with HIV at the centre of the
response and jointly taking action to overcome each of these
gender barriers.
Women’s voices and key messages gathered with this
virtual consultation reaffirming that women are eager and
ready to engage in all processes affecting their lives, to have
their voices listened to and acted upon. Women seek to be
consulted and asked about their realities and needs, to be
meaningfully involved in all stages, and to be truly placed
at the centre of the development and implementation of
prevention of vertical transmission plans at the national and
global level.
Effectively responding to the challenges which lie ahead
require meaningfully involving women living with HIV at
every level, from the community, to national, regional and
global levels. It will require engagement by the state and civil
society, but also by communities and families, which can have
a tremendous influence on how women and girls, as well as
men and boys, perceive themselves and each other in society.
It will be key to take forward a shared message which clearly
underscores that gender equality, just as services that prevent
vertical transmission of HIV, benefits everyone.
Only in this way will it be possible to reach the goal
and fulfil the commitment of virtually eliminating vertical
transmission and decreasing maternal deaths.
FOOTNOTES:
1. Woman, South Africa, October 2011.
2. Retrieved from www.avert.org/pmtct-hiv.htm, 23 January 2011.
3. UNICEF (2010). Preventing Mother-to-Child Transmission (PMTCT)
of HIV. [www.unicef.org/aids/index_preventionyoung.html]
4. GLOBAL HIV/AIDS RESPONSE: Epidemic update and health
sector progress towards Universal Access, Progress Report 2011
(WHO, UNICEF, UNAIDS), p.154.
5. Stringer et al (2008) found that only half (49%) of all women living
with HIV that accessed ANC services adhered to the full course of
vertical transmission treatment.
6. The Global Plan can be accessed on www.unaids.org/en/media/
unaids/contentassets/documents/unaidspublication/2011/20110609_
JC2137_Global-Plan-Elimination-HIV-Children_en.pdf.
7. The 22 priority countries identified in the Global Plan are: Angola,
Botswana, Burundi, Cameroon, Chad, Cote d’Ivoire, Democratic
Republic of the Congo, Ethiopia, Ghana, India, Kenya, Lesotho,
Malawi, Mozambique, Namibia, Nigeria, South Africa, Swaziland,
Uganda, United Republic of Tanzania, Zambia and Zimbabwe.
8. Global Plan, p8.
9. This initiative would not have been possible without the collaboration,
expertise, support and assistance from women and their organisations
across the priority countries. We would like to acknowledge and
express our thanks to ICW East Africa, ICW Southern Africa, ICW
West & Central Africa, ICW Asia Pacific, Swaziland Positive Living
(SWAPOL), Femme Plus A.S.B.L. (Democratic Republic of Congo),
Kenya Network of Women with AIDS, National Network of Positive
Women Ethiopians, Coalition of Women Living with HIV/AIDS
(Malawi), Tanzania Network of Women Living with HIV, Society
of Women and AIDS (Ghana), Muleide (Mozambique), Her Rights
Initiative (South Africa), Namibian Women’s Health Network, and
AIDS & Rights Alliance for Southern Africa (ARASA).
10. These countries include Democratic Republic of Congo, Lesotho,
Mozambique, Namibia, South Africa and Zimbabwe.
11. UNICEF. 2010. ‘Preventing Mother-to-Child Transmission
(PMTCT) of HIV: Fact sheets on the status on national PMTCT
responses in the most affected countries’. [www.unicef.org/aids/
index_preventionyoung.html]
12. UNAIDS. 2010 Report on the Global AIDS Epidemic.
13. Global Plan, p24.
14. Global Plan, p10.
15. Global Plan, p8. See also UNAIDS. 2010. UNAIDS Action
Framework: Addressing women, girls, gender equality and HIV.
16. Of the 22 priority countries, Ghana, Namibia, Nigeria and South
Africa are the only countries which do not have laws in place that
criminalise HIV transmission or exposure, or are in the process of
drafting such legislation. [www.gnpplus.net/criminalisation/index.
php?option=com_content&task=view&id=12&Itemid=34]
17. Global Plan, p8.
For more information, please contact
the AIDS Legal Network at admin@aln.org.za.
The criminalisation debate continues…
The law response to Helen Zille, the HIV populist1
Political leaders holding executive office (like the President and the nine Premiers) cannot be expected to
know everything about every conceivable subject, which is why they employ advisors to assist and advise
them. However, sometimes they think they know everything about everything (always a dangerous thing
for a politician to think, as we know from experience with former President Thabo Mbeki), and sometimes
their advisors fail to do their job properly.
Pierre de Vos
It is unclear whether Premier Helen Zille relied on
advisors before making truly astonishing statements about
the criminalisation of sex, or whether she came up with her
hare-brained scheme all by herself.
Zille said in November 2011 that she was so worried
about the spread of HIV and its cost to the government that
she wants men who have multiple sexual partners and refuse
to use condoms to be charged with attempted murder. Zille
told a wellness summit hosted by the provincial health
department in Newlands on 08 November 2011 that it was
time the government shifted its exclusive focus from treating
diseases to preventing them and promoting wellness.
If she was quoted correctly, her statement represents a
frontal attack on the Rule of Law and the basic principles of
criminal law applicable in any democratic society.
If she said that men who have multiple sexual partners
and refused to use condoms should be charged with attempted
murder regardless of whether they are HIV positive and
regardless of whether they knew that they were HIV positive,
she was advocating the criminalisation of conduct that no
civilised society based on the Rule of Law and a respect for
human rights would criminalise.
A fundamental principle of the criminal law in a country
that adheres to the rule of law is that one could only be charged
and found guilty of a crime (or attempting to commit a crime)
if one could be proven to have had the intention to commit
the crime or (in exceptional cases) had the knowledge that
his or her actions could have resulted in the commissioning
of unlawful action and nevertheless negligently proceeded to
act. In South Africa, culpable homicide is the unlawful and
negligent killing of another. Attempted murder is committed
where one intends to kill somebody else, but fails in
doing so.
Merely potentially endangering the life of another can
never be culpable homicide or attempted murder and one
cannot be convicted of attempted culpable homicide. One can
only be convicted of attempted murder if it can be proven that
one had the intention to kill another but failed to do so. In
S v Naidoo, the SCA set out the position quite clearly:
What the crimes of murder and culpable homicide
have in common is a fatal outcome for a human being.
Absent a death, absent the particular crime. What they
55
ALQ March/April 2012
The law response to Helen Zille, the HIV populist…
56The law response to Helen Zille, the HIV populist…
March/April 2012 ALQ
do not have in common is that absent a death, there
may be a conviction of attempted murder, but not a
conviction of attempted culpable homicide. The reason
for the difference lies in the distinction between the two
forms of mensrea, which are essential elements of the
respective crimes of murder and culpable homicide.
The crime of murder cannot be said to have been
committed unless the act or omission of act, which caused
death, was intentionally committed or omitted and death was
the desired result, or, if not the desired result, at least actually
foreseen as a possible result the risk of occurrence of which
the accused recklessly undertook and acquiesced in. In short,
dolus in one or other of its manifestations (directus, eventualis,
indeterminatus, etc) is the kind of mensrea, which must have
existed. Where the act or omission is accompanied by such
dolus, but death does not in fact ensue, it is easy to understand
why the accused’s conduct should be visited nonetheless
with penal sanctions. A deliberate attempt to commit the
crime of murder cannot be ignored and left unsanctioned
simply because the perpetrator has failed to achieve his or
her objective.
Where it can be proven that a person intentionally tried to
kill another by infecting him or her with the HI virus (which
would be very difficult to prove), a person could be charged
with attempted murder. But where someone does not know
his or her HIV status and has sex without a condom, it could
never lead to a criminal conviction for attempted murder due
to the absence of intention. If somebody negligently transmits
HIV to another and that person actually dies, the person could
theoretically be charged with culpable homicide, but proving
the causal link between the sexual act and the death of the
person, as well as the negligence on the part of the accused,
would be almost impossible to do.
Given the fact that antiretrovirals are now widely
accessible, a person who responsibly gets tested and takes this
medicine will in all probability live a long and productive life,
which means that it would be almost impossible to prosecute
someone for attempted murder as the state would not be able
to show the causal link between the sexual act and the death.
In the age of ARVs, deliberately transmitting HIV to
another should not be viewed as attempted murder, because
one’s action would not lead to the death of the other person.
Where a person dies of an HIV-related illness, the accused
charged with his or her murder or with culpable homicide
would argue – that but for the failure of the deceased to take
ARVs – death would never have occurred, and that there was
hence no causal link between the sexual act and the death.
There are good reasons for this. In a constitutional
democracy – as opposed to a theocratic state – the criminal
law cannot be used to punish individuals merely for not
conforming to Judaeo-Christian moral standards regarding
sexual behaviour. If one criminalised all unprotected sex with
…the criminal law cannot be used
to punish individuals merely for not
conforming to Judaeo-Christian moral
standards regarding sexual behaviour…
one or several partners, one would be punishing people for
something that might never have happened (HIV infection,
leading to death) or for something they might not have
foreseen at all (as they might not have believed that they
were HIV positive at all or might not be HIV positive). One
would be punishing people for not behaving in a manner one
believes is appropriate – regardless of the consequences or
potential consequences.
The criminal law then becomes an oppressive and
authoritarian instrument of social control, turning large
numbers of ‘ordinary citizens’ into ‘instant criminals’.
Where the criminal law punishes behaviour not based on the
consequences or potential consequences of said behaviour, but
for its own sake and without taking into account the guilt of
the accused, the Rule of Law is fundamentally undermined.
Perhaps Premier Zille was misquoted or she ‘misspoke’.
Perhaps she meant to say that somebody who has multiple
sexual partners and knows that he is HIV positive, but
nevertheless fails to use a condom and then transmits HIV to
a partner, who later dies from AIDS-related illnesses, should
be charged with attempted murder.
Even so, this view is quite shockingly misinformed and
would have disastrous consequences. It would create an
incentive for some men not to get tested for HIV and hence
not to take ARVs. Not only would the men then die needlessly,
but those men would be also far more likely to transmit HIV
to their sexual partners. This is because an HIV positive
person on ARVs whose viral load becomes undetectable is far
less likely to transmit HIV, than one who is not on ARVs and
whose viral load is high.
Criminalising sexual behaviour in this way might therefore
increase the rate of HIV transmission. It will certainly not
decrease it.
FOOTNOTES:
1. An earlier of this article has been published on 10 November 2011
on the Constitutionally Speaking blog. [http://constitutionally
speaking.co.za]
…one would be punishing people
for not behaving in a manner one
believes is appropriate – regardless
of the consequences or potential
consequences…
57
ALQ March/April 2012
The law response to Helen Zille, the HIV populist…
Pierre de Vos is a constitutional law professor at the
Department of Public Law at the University of
Cape Town. For more information and/or comments,
please contact him at Pierre.DeVos@uct.ac.za.
58Oslo Declaration on HIV Criminalisation
March/April 2012 ALQ
1. A growing body of evidence suggests that the
criminalisation of HIV non-disclosure, potential exposure
and non-intentional transmission is doing more harm
than good in terms of its impact on public health and
human rights.2
2. A better alternative to the use of the criminal law are
measures that create an environment that enables
people to seek testing, support and timely treatment,
and to safely disclose their HIV status.3
3. Although there may be a limited role for criminal law in
rare cases in which people transmit HIV with malicious
intent, we prefer to see people living with HIV supported
and empowered from the moment of diagnosis, so that
even these rare cases may be prevented. This requires
a non-punitive, non-criminal HIV prevention approach
centred within communities, where expertise about, and
understanding of, HIV issues is best found.4
4. Existing HIV-specific criminal laws should be repealed,
in accordance with UNAIDS recommendations.5 If,
following a thorough evidence-informed national
review, HIV-related prosecutions are still deemed to
be necessary they should be based on principles of
proportionality, foreseeability, intent, causality and
non-discrimination; informed by the most-up-to-date
HIV-related science and medical information;
harm-based, rather than risk-of-harm based; and
be consistent with both public health goals and
international human rights obligations.6
5. Where the general law can be, or is being, used for
HIV-related prosecutions, the exact nature of the rights
and responsibilities of people living with HIV under the
law should be clarified, ideally through prosecutorial
and police guidelines, produced in consultation with
all key stakeholders, to ensure that police investigations
are appropriate and to ensure that people with HIV have
adequate access to justice.
We respectfully ask Ministries of Health and Justice and other
relevant policymakers and criminal justice system actors to
also take into account the following in any consideration
about whether or not to use criminal law in HIV-related cases:
6. HIV epidemics are driven by undiagnosed HIV infections,
not by people who know their HIV-positive status.7
Unprotected sex includes risking many possible
eventualities – positive and negative – including
the risk of acquiring sexually transmitted infections
such as HIV. Due to the high number of undiagnosed
infections, relying on disclosure to protect oneself – and
prosecuting people for non-disclosure – can and does
lead to a false sense of security.
7. HIV is just one of many sexually transmitted or
communicable diseases that can cause long-term harm.8
Singling out HIV with specific laws or prosecutions
further stigmatises people living with and affected by
HIV. HIV-related stigma is the greatest barrier to testing,
treatment uptake, disclosure and a country’s success in
‘getting to zero new infections, AIDS-related deaths and
zero discrimination’.9
Oslo Declaration on HIV Criminalisation1
59
ALQ March/April 2012
8. Criminal laws do not change behaviour rooted in
complex social issues, especially behaviour that is based
on desire and impacted by HIV-related stigma.10 Such
behaviour is changed by counselling and support for
people living with HIV that aims to achieve health,
dignity and empowerment.11
9. Neither the criminal justice system nor the media are
currently well-equipped to deal with HIV-related criminal
cases.12 Relevant authorities should ensure adequate
HIV-related training for police, prosecutors, defence
lawyers, judges, juries and the media.
10. Once a person’s HIV status has been involuntarily
disclosed in the media, it will always be available through
an internet search. People accused of HIV-related ‘crimes’
for which they are not (or should not be found) guilty
have a right to privacy. There is no public health benefit
in identifying such individuals in the media; if previous
partners need to be informed for public health purposes,
ethical and confidential partner notification protocols
should be followed.13
FOOTNOTES:
1. This Declaration has been prepared by international civil society in
Oslo, Norway on 13th February 2012.
2. UNAIDS. 2012. Report of the Expert Meeting on the Scientific,
Medical, Legal and Human Rights Aspects of Criminalisation of
HIV Non-disclosure, Exposure and Transmission, 31 August – 02
September 2011. Geneva, February 2012.
3. UNAIDS/UNDP. 2008. Policy Brief: Criminalization of HIV
Transmission . Geneva; Open Society Institute. 2008. Ten Reasons
to Oppose the Criminalization of HIV Exposure or Transmission;
IPPF,GNP+ and ICW. 2008. Verdict on a Virus. See also: IPPF.
Verdict on a Virus (documentary) 2011.
4. GNP+/UNAIDS. 2011. Positive Health Dignity and Prevention: A
Policy Framework . Amsterdam/Geneva.
5 UNAIDS/UNDP. 2008. Policy Brief: Criminalization of HIV
Transmission. Geneva, July 2008.
6. UNAIDS, 2012, op. cit.
7. Marks, G. et al. 2006. ‘Estimating sexual transmission of HIV from
persons aware and unaware that they are infected with the virus
in the USA’. In: AIDS 20(10):1447-50; Hall, HI et al. 2012. ‘HIV
transmissions from persons with HIV who are aware and unaware
of their infection, United States’. In: AIDS, 26, online edition. DOI:
10.1097/QAD013e328351f73f, 2012.
8. Bernard, EJ, Hanssens, C. et al. 2012. Criminalisation of HIV Nondisclosure,
Exposure and Transmission: Scientific, Medical, Legal
and Human Rights Issues; UNAIDS, Geneva, February 2012; Carter,
M. 2012. Hepatitis C surpasses HIV as a cause of death, Aidsmap.
com, 21 February 2012.
9. UNAIDS. 2010. Getting to Zero: 2011-2015 Strategy. Geneva,
December 2010.
10. Bernard, EJ & Bennett-Carlson, R. 2011. Criminalisation of HIV
Non-disclosure, Exposure and Transmission: Background and
Current Landscape. UNAIDS, Geneva.
11. GNP+/UNAIDS, 2011, op. cit.
12. Bernard & Bennett-Carlson, 2012, op. cit.
13. UNAIDS. 2000. Opening up the HIV/AIDS epidemic: Guidance
on encouraging beneficial disclosure, ethical partner counselling &
appropriate use of HIV case-reporting. Geneva.
Oslo Declaration on HIV Criminalisation
…any new HIV prevention strategy
requires carefully-developed
context-specific messaging…
For more information and/or to sign the Declaration,
please go to www.hivjustice.net/oslo/olso-declarartion.
60Demonstartors at ICASA
March/April 2012 ALQ
Supported by the Oxfam HIV and AIDS Programme
(South Africa)
www.aln.org.za
Editor & Photographer: Johanna Kehler (jkaln@mweb.co.za) • DTP Design: Melissa Smith (melissas1@telkomsa.net) • Printing: FA Print
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Marching at ICASA…