Final Communiqué of the Consultative Technical Meeting towards Commissioning a Study on “HIV, the Law and Human Rights in the African Human Rights System: Key Challenges, Best Practices and Opportunities for Rights-based Responses to HIV”

    1.     The African Commission on Human and Peoples’ Rights (“the Commission”), through its subsidiary mechanism, namely the Committee for the Protection of the Rights of People Living with HIV (PLHIV) and Those At Risk, Vulnerable to and Affected by HIV in Africa (“PLHIV Committee”), organized a Consultative Technical Meeting towards Commissioning a Study on “HIV, The Law and Human Rights in The African Human Rights System: Key Challenges, Best Practices and Opportunities for Rights-based Responses to HIV” (the Study), from 6 to 7 June 2014, in Pretoria, South Africa.

    2.     The Meeting, which was supported by UNAIDS, the Centre for Human Rights at the University of Pretoria and the Human Rights Development Initiative (HRDI), was convened:

    • within the mandate of the PLHIV Committee under Resolution ACHPR 163/XLVII to recommend concrete and effective strategies to better protect the rights of people living with HIV and those at risk”; and
    • for purposes of: analysing pertinent issues concerning human rights challenges faced by PLHIV within the context of discriminatory and/or punitive legal environments affecting PLHIV and persons at risk, vulnerable to and affected by HIV in Africa; as well as developing concrete and effective strategies for conducting a study on this subject, and generating appropriate supplementary legal instruments and tools that can both assist State Parties to the African Charter in creating enabling environments for human rights-based responses to HIV and serve as potent advocacy tools for other stakeholders in protecting the rights of PLHIV.

    3.     The Meeting had the following specific objectives, amongst others:

    •  To provide space for various stakeholders to review, discuss and document the challenges created by punitive legal environments towards effective responses to the HIV pandemic, and to deliberate on opportunities as well as best practices for a rights-based approach to HIV response for effective protection of the rights of PLHIV;
    • To create the momentum for the PLHIV Committee to take these issues forward including by putting in place a group of experts that would conduct the Study and also develop related supplementary legal instruments and advocacy tools;
    • To develop the terms of reference (ToRs) that would guide the experts in their conduct of the Study and the development of the supplementary legal instruments and advocacy tools, including the sources of funding and timelines; and
    • To draft a Resolution that would initiate the Study and commission the experts in accordance with the Commission’s procedures, to be presented for adoption by the Commission, at its 16th Extra-Ordinary Session to be held in July 2014, in Kigali, Rwanda.

     4.     The Meeting was attended by twenty-six (26) various stakeholders, including members of the Commission, expert members of the PLHIV Committee, the 2nd Vice-President of the African Committee of Experts on the Rights and Welfare of the Child (ACERCW), selected experts on the issue of HIV and human rights, as well as representatives of the Gender Unit of the Centre for Human Rights, the Centre for the Study of AIDS, based at the University of Pretoria, and HRDI.

     

    5.     The Meeting was chaired by Honourable Commissioner Lucy Asuagbor - Chairperson of the PLHIV Committee, and was co-facilitated by Honourable Commissioner Soyata Maiga - Member of the PLHIV Committee, and Ms. Karen Stefiszyn of the Gender Unit of the Centre for Human Rights.

     

    6.     The Meeting was serviced by Mrs. Abiola Idowu-Ojo, Ms. Prisca Chogero Mkama and Mr. Philbert Bayeka, from the Secretariat of the Commission.

     

    7.     The Meeting was divided into two (2) distinct sessions, preceded by a formal opening ceremony, where Honourable Commissioner Soyata Maiga made welcoming remarks, and Honourable Commissioner Lucy Asuagbor gave an opening speech and declared the Meeting open.

     

    8.     The substantive part of the meeting took the form of interactive sessions, comprising presentations by resource persons followed by plenary discussions, thematic group discussions and reporting to the plenary.

     

    9.     The presentations and discussions centred around: the legal and institutional frameworks for the protection of the rights of PLHIV in Africa; key issues pertaining to HIV, law and human rights; equality and non-discrimination in the context of HIV and the responsibilities of State Parties to the African Charter; sexual and reproductive health rights of women living with HIV in Africa and the responsibilities of State Parties to the African Charter; HIV testing and related human rights issues in Africa; an overview of the criminalisation of HIV transmission in Africa; populations at higher risk of HIV and related human rights issues in Africa; harmful cultural practices and traditional beliefs in the context of HIV; intellectual property rights and access to HIV medicine in Africa; and the work of the ACERCW on the rights and welfare of the African child in the context of HIV/AIDS.

     

    10.    The group discussions, which were themed along the lines of the key elements and expected outputs of the Meeting, focused on the following:

     

    ·        The Legal Environments for PLHIVs in Africa: Case Studies of Punitive Environments and Best Practices;

    ·        Strategies for rights-based responses to HIV by African States ; and

    ·        Modalities and Terms of Reference for conducting the Study, and the preparation of the Draft Resolution on the Study.

     

    11.   After the two-day Meeting, participants had:

     

    • deliberated upon and gained up-to-date knowledge on issues pertaining to HIV, Law and Human rights in Africa, especially in the context of legal environments affecting PLHIV and persons at risk, vulnerable to and affected by HIV;
    • conducted a preliminary analysis of the state of affairs on the continent as regards legal environments affecting PLHIVs, including: identifying key challenges such as laws, policies and practices mandating compulsory HIV testing, laws which criminalize HIV transmission in the absence of established scientific evidence harmful cultural practices, restrictive laws, policies and practices restricting sexual and reproductive health rights in the context of HIV; and formulated correlated recommendations to be taken on board in the context of the Study, including: the need for a deeper analysis of the role of the law within the context of HIV, the need to review the relationship between public health and human rights, the need to analyse the current criminalization laws and their impact, in order to demonstrate that criminalization does not prevent HIV transmission, as well as the need to interpret Article 17 of the Maputo Protocol which guarantees the right of women to live in a positive cultural context so as to delimit and contextualize the issue of harmful cultural practices;
    • made concrete proposals on strategies and tools that may be adopted at the levels of the Commission, State Parties to the African Charter and other stakeholders, for promoting rights-based responses to HIV/AIDS, and protecting the human rights of PLHIV, including by generating a preliminary draft of Guidelines on State Reporting on the protection of the Rights of People Living with, Vulnerable to and Affected by HIV within the context of Article the African Charter;
    • drawn up a roadmap for the Study, including by: designating a group of experts that would conduct the Study and develop the appropriate supplementary legal instruments and tools; preparing broad Terms of Reference for the Study; identifying the methodology for the Study; devising funding strategies, as well as other broad modalities for the Study; and drafting the Resolution   for initiating the Study, to be presented to the 16th Extra-Ordinary Session of the Commission for adoption.

    12.                        The Commission, through the PLHIV Committee, expresses its sincere and profound gratitude to UNAIDS, the Centre for Human Rights and HRDI, for the excellent financial, logistical and technical support provided towards the Meeting.

     

    Done in Pretoria, Republic of South Africa, this 7th Day of June, 2014

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