Values, Policies and Rights

This report provides an analysis of research on cases of sterilisation of HIV positive women in Namibia. A series of focus groups and interviews produced evidence that the authors report suggesting that a number of HIV positive women were being forced into sterilisation by hospital staff. The research was conducted between 21 January 2008 and 22 of April 2008 with a total of 230 HIV positive women. Women participated in focus groups and interviews about their experiences. The analysis takes a rights-based approach and presents a detailed account of Namibia’s obligations under international and regional human rights law. The evidence from the focus groups is argued to indicate that these rights have been violated. The report uncovered many types of discrimination against HIV-positive mothers, such as being coerced into using injectable contraceptives, failure to obtain consent for sterilisation and obtaining consent under duress. The authors call on all relevant parties, especially the Ministries of Health and Justice, address this violation of human rights immediately.

The AIDS Law Project, one of South Africa's leading HIV and AIDS rights campaigners, has ceased to exist in its present form. Instead it has become part of Section27, a non-profit organisation that will focus on all 'the socio-economic conditions that undermine human dignity and development, prevent poor people from reaching their full potential and lead to the spread of diseases that have a disproportionate impact on the vulnerable and marginalised'. Section27 gets its name from the section in the country’s Constitution that states everyone has the right to access to health care services, enough food and water and social security. The organisation faces a potential legal battle over the right to use the name, Section27, as the Companies and Intellectual Properties Registration Organisation (CIPRO) claims that this name is the preserve of government only. Director Mark Heywood explained the change: 'To sustain the response to HIV, reduce new infections and ensure sustained access to treatment, it is necessary to campaign for equity, equality and quality in the health system.' Head of litigation services Adila Hassan said the new organisation will still focus on HIV/AIDS but also on the 'underlying determinants of health, and to do this we will be focusing on education and sufficient food as two such determinants'. Section27 will also defend the Constitution and its foundational values.

Children under 18 are legal minors who, in South African law, are not fully capable of acting independently without assistance from parents/legal guardians. However, in recognition of the evolving capacity of children, there are exceptional circumstances where the law has granted minors the capacity to act independently. This paper describes legal norms for child consent to health-related interventions in South Africa, and argues that the South African parliament has taken an inconsistent approach to: the capacity of children to consent; the persons able to consent when children do not have capacity; and restrictions on the autonomy of children or their proxies to consent. In addition, the rationale for the differing age limitations, capacity requirements and public policy restrictions has not been specified. The paper argues that these inconsistencies make it difficult for stakeholders interacting with children to ensure that they act lawfully.

This document presents ten reasons why exposing or transmitting HIV to someone else should not be criminalised. It argues that criminalising HIV transmission is justified only when individuals purposely or maliciously transmit HIV with the intent to harm others. In these rare cases, existing criminal laws can and should be used, rather than passing HIV-specific laws. Furthermore, applying criminal law to HIV exposure or transmission does not reduce the spread of HIV, undermines HIV prevention efforts and promotes fear and stigma. Instead of providing justice to women, applying criminal law to HIV exposure or transmission endangers and further oppresses them. It points out that laws criminalising HIV exposure and transmission are drafted and applied too broadly, and often punish behavior that is not blameworthy. They are often applied unfairly, selectively and ineffectively, and ignore the real challenges of HIV prevention. Rather than introducing laws criminalising HIV exposure and transmission, legislators must reform laws that stand in the way of HIV prevention and treatment, and instead take a human-rights position in response to the problem.