Source of illustrative picture: Citi newsroom
WHAT HAVE WE DONE? WHAT MORE CAN WE DO?
By Lina Jere, Ngela Munalula and Andrew Mukuwa
Exactly one week ago, on Wednesday 1st December, 2021, we celebrated World AIDS Day under the theme “END INEQUALITIES. END AIDS. END PANDEMICS”. The World AIDS Day is commemorated to increase awareness about HIV and AIDS, to show support for those living with HIV and AIDS, and to remember those who have died from AIDS related diseases.
Zambia has over the years made strides to curb the HIV and AIDS epidemic. According to UNAIDS, annual HIV infections (for all ages) in Zambia have declined from 60,000 in 2010 to 51,000 in 2019. Annual AIDS-related deaths have also declined significantly from 24,000 in 2010 to 19,000 in 2019, a decline of about 30 per cent[1].
During the commemoration of World AIDS Day, the Commission published a weekly article entitled “ a ZLDC Reflection on the 2021 World AIDS day- “End inequalities. End AIDS. End Pandemics” which sought to highlight issues for consideration under the theme and to inspire discussion amongst readers. This article is a continuation of the previous article. It seeks to provide the legal framework on HIV and AIDS in Zambia according to this year’s World AIDS Day theme, and concludes with recommendations on ‘what more can we do’ to ensure that the country meets the international goal of ending AIDS by 2030.
What have we done?
End Inequalities
United Nations human rights bodies have stated that inequality should be seen and acted on as a central human rights concern[2]. It can come in many forms including gender, ethnicity, education, disability and economic inequality. Some populations are especially affected by inequality because of intersectionality, such as being poor and female, living in a rural area and being disabled, or being uneducated and being HIV positive.
Zambia’s HIV/AIDS epidemic is influenced by gender-inequality, social norms that encourage multiple concurrent partnerships and unequal distribution of wealth[3]. Gender inequality for instance causes women to face barriers in the negotiation of safer sex, because of unequal power dynamics with men[4]. Unequal distribution of wealth on the other hand results in the poor having inadequate access to HIV information and other sexual and reproductive health services[5]. The inverse, that HIV/AIDS propagates inequalities is also true, as for instance, the early years of the HIV/AIDS epidemic in Zambia were marked with economic hardships on families with the demise of productive adults[6].
The law attempts to end inequalities that propagate HIV/AIDS through Acts of Parliament that include:
i.Constitution of Zambia which states that no person shall be treated in a discriminatory manner by any person. The forms of discrimination in the Constitution include sex and disability. Where a person is discriminated against, the Constitution provides that that person may apply for redress to the High Court. It also requires 50% of all appointments and nominations to public office to be of women, and that there should be equitable representation of youth and persons with disabilities.
A comparison was carried out with the Constitution of South Africa and it was found that it has gone further to provide for the right to have access to health care services, regardless of status. Health care services provide people with access to HIV prevention strategies and is one of the basic human rights to which people living with HIV/AIDS are entitled.
ii. Gender Equity and Equality Act[7] which promotes equality between the sexes and provides for affirmative action in favor of women in areas in which they have been historically disadvantaged. In relation to HIV/AIDS, it states that a woman has a right to adequate sexual and reproductive health, which includes the right to access sexual and reproductive health services, and to be protected from sexually transmitted infection. These provisions are necessary given statistics that indicate that prevalence of HIV/AIDS is higher among women (14.2%) compared to men (7.5%)[8].
iii. Persons with Disabilities Act[9] which aims to ensure that persons with disabilities are enabled to enjoy the same rights and opportunities as the rest of society, and provides for affirmative action to undo historical disadvantages that they have faced. It, among other things, requires public institutions and services including those that are key to ending HIV and Aids such as health and education institutions and services to be accessible to persons with disabilities, by ensuring that needs of persons with disabilities are taken into account in the design, construction, and operation of buildings and services.
Other correlations between HIV/AIDS and disability are that people living with HIV may develop impairments as the disease progresses; and may be considered to have a disability when social, economic, political or other barriers hinder their full and effective participation in society on an equal basis with others[10]. The International Guidelines on HIV/AIDS and Human Rights therefore require disability laws to be revised to include HIV and AIDS in their definition of disability[11].
iv. Citizens Economic Empowerment Act[12] which was enacted to promote the empowerment of citizens that are or have been marginalized or disadvantaged and whose access to economic resources and development capacity has been constrained due to various factors including sex, educational background, status and disability. The Act enhances equity, ownership and control of the means of production by marginalised citizens by, among other things, offering affordable loans and technical support in business development.
End AIDS
Zambia is working towards achieving the United Nations Fast-Track strategy to end the AIDS epidemic by 2030. To this end, the country may utilise the law as one of the tools that are available to it. .
The Acts that would aid towards ending the spread of HIV/Aids include the-
i. Employment Code Act[13] which requires an employer to put in place a HIV/Aids policy. An HIV/AIDS policy can be used to address epidemic drivers through workplace programs[14].The International Labour Organization’s Code of practice on HIV and AIDS and the Southern African Development Community code of good practice on HIV and AIDS and Employment provide guiding principles on how workplaces should respond to HIV/AIDS.
ii. Education Act[15] which enables the Minister responsible for Education to ensure that the school curriculum is comprehensive, balanced, integrated, diversified and relevant. This provision facilitated the introduction of comprehensive sexuality education into Zambia’s education curriculum in 2014. Comprehensive sexuality education focuses on puberty, HIV prevention, gender equality, sexual and reproductive health, relationships and human rights[16].
iii. Anti-Gender Based Violence Act[17] which states that sexual contact by a person who is aware of being infected with HIV or any other sexually transmitted infection with another person without that other person being given prior information of the infection is a form of gender based violence. Disclosure of HIV status to one’s sexual partner is known to promote HIV testing, encourage HIV risk reduction, increase opportunity for social support and ultimately facilitate long term plans to ensure HIV prevention and management[18].
iv. National HIV/AIDS/STI/TB Council Act[19] which establishes the National HIV and AIDS STI /TB Council with the mandate to coordinate and monitor the national response to HIV. This Act reflects the multi-sectoral approach to combating HIV/Aids that Zambia has adopted. The multi-sectoral approach is needed as phenomena, such as the HIV/Aids epidemic, do not take place in isolation, and may extend far beyond their immediate consequences[20]. The Council therefore engages civil society, private sector, public sector and development partners in conducting their work.
v. Penal Code Act[21] which makes it illegal for any person to unlawfully or negligently do any act which that person knows or has reason to believe is likely to spread the infection of any disease dangerous to life. A person who believes that they have been infected with HIV/AIDS may therefore report the person that they believe infected them to the police and that person may be charged with an offense under the Penal Code Act.
Regarding HIV positive inmates, in the case of Mwanza and Another v Attorney General the Supreme Court held that the State was in continuous violation of the prisoners’ right to life, right to protection from inhuman and degrading treatment and right to special dietary needs as persons living with HIV. It ordered the State to take immediate measures to decongest the Lusaka Central Correctional facility and increase the allocation of resources to the prison to improve the nutrition of prisoners. The Supreme Court further ordered the State to report on the measures taken at the opening of each new court session.[22] However, the Zambia Correctional Service has had challenges in the implementation of the judgment, particularly with regards to nutrition for inmates, due to financial constraints.
Other strategies that have been employed to end HIV/AIDS include the National HIV/Aids Strategic Framework 2017 to 2021 which is designed to provide opportunities for stakeholders to actively participate in the implementation of evidence-based HIV and AIDS programmes; and the National Health Policy 2012 which provides for increasing access to quality HIV and AIDS and STIs interventions for prevention, treatment and care.[23]. The government also introduced a new treatment to reduce the spread of HIV and wipe out AIDS entirely by 2030.The national HIV response has supported the Post-Exposure Prophylaxis (PEP) to prevent HIV infection from developing in people exposed to the virus.[24]The most controversial intervention was the introduction of a compulsory HIV Testing, Counseling and Treatment policy in 2017 which was criticised for compromising the right to bodily integrity. Bodily integrity refers to the ability for one to make decisions over their body, and has been interpreted to be part of the right to security of the person, freedom from torture and cruel, inhuman, and degrading treatment, and the right to the highest attainable standard of health.
A comparison with laws that have been enacted in other countries to end HIV/AIDS was conducted. It was found that Kenya, Vietnam and New South Wales are amongst the countries that have enacted specific legislation to address HIV/AIDS. Kenya enacted the HIV and AIDS Prevention and Control Act No. 14 of 2006, which prohibits compulsory testing of people; requires the government to promote public awareness about causes, modes of transmission, means of prevention and control of HIV and AIDS; requires every testing centre to provide pre and post-test counseling; provides for confidentiality of records that relate HIV status with the identity of a person; outlines what would amount to discrimination against persons living with HIV and penalties for the discrimination; and outlines guidelines for undertaking HIV research.
Vietnam enacted a similar law called the Law on HIV/AIDS Prevention and Control (No. 64/2006/QH11). It provides for rights of persons living with HIV/AIDS which include the right to enjoy medical treatment and health care. The Act further obligates the state to support scientific research, experts exchange and training, and technology transfer in HIV/AIDS prevention and control.
In New South Wales, Australia, the Anti-Discrimination Act makes it unlawful for a person “by a public act, to incite hatred towards, serious contempt for, or severe ridicule of ” anyone living with HIV or thought to be HIV-positive[25].
End Pandemics
A pandemic is the worldwide spread of a new disease[26], with the most significant in recent times being the coronavirus (COVID-19). UNAIDS highlighted the fact that inequalities that drive HIV/AIDS also drive other pandemics. For instance, similar to HIV/AIDS, poverty negatively impacts on one’s access to health services and information that would aid in preventing misinformation and the spread of COVID-19. If Zambia fails to end inequalities, it risks failing to end AIDS by 2030, and prolonging the COVID-19 pandemic.
Another interconnection between COVID-19 and HIV/AIDS is that COVID-19 changed the manner in which the world conducted business, particularly in relation to physical interaction. At the start of the first wave, there was a disruption to HIV/AIDS testing and other services. Strategies that were used to ensure that COVID- 19 did not derail the objective of ending HIV/AIDS included the integration of COVID-19 and HIV activities, and the adaptation of HIV/AIDS services to accommodate the stay-at-home regulations[27].
The primary law that provided for COVID-19 response was the Public Health (Infected Areas) (Coronavirus Disease 2019) Regulations, SI No. 22 of 2020 and its amendments, which among other things, required authorization of an authorised officer to hold a public gathering.
Other regulations came in the form of government direction, most recently, the declaration on 30th November, that all persons should provide evidence of vaccine before entering government buildings and that civil servants and public officers should be vaccinated before being allowed to be admitted to work. This, in operation, compels vaccination by all including persons living with HIV/AIDS.
What More Can We Do?
i.There is evidence to the effect that inequalities cause sectors of society to become more vulnerable to HIV/AIDS infection and compromise treatment, by lowering access to sexual health services, and agency to engage in preventative strategies. There is a need to implement the provisions of the law that provide for affirmative action, with a view to enhancing equality. These laws include the Constitution, the Gender Equity and Equality Act, the Persons with Disabilities Act and the Citizens Economic Empowerment Act.
ii.The Employment Code Act requires an employer to have an HIV/AIDS policy, which can contribute to curbing inequalities and managing the impact of HIV/AIDS in the workplace through the prohibition of discrimination against employees that are HIV positive, or that are perceived to be HIV positive and the provision of prevention programs, among other things. However, the employment Code Act does not provide for consequences for non-adherence to the legal provision. It is therefore recommended that the provision be revised in order to provide a consequence for non-adherence, in order to compel employers to abide by the law.
iii. In Zambia, inequalities such as poverty, lack of education and living in a rural area compromise access to health services, which is particularly detrimental to prevention and treatment of HIV/AIDS. The South African Constitution attempts to increase access to health services by all, through the recognition and protection of the right to health. The Zambian Constitution does not expressly provide for this right. It is therefore recommended that the Constitution be amended by incorporating this right.
iv.Compulsory testing, counselling and treatment was introduced in 2017, as a tool to end HIV/AIDS by 2030. However, compulsory testing has been criticised for being an infringement of human rights including the right to bodily integrity[28]. The World Health Organisation and UNAIDS do not recommend mandatory, compulsory or coerced HIV testing of individuals on public health grounds[29].
Compulsory testing is also inconsistent with the National Strategy of HIV/AIDS which adopts a human-rights based approach in ending AIDS. Rights-based approaches promote the dignity of people living with HIV/AIDS and those that are vulnerable to it. The compulsory testing policy should therefore be reviewed to ensure that the country is consistent with international human rights standards, and that interventions in the fight against HIV/AIDS respect the dignity of persons living with HIV and those that are vulnerable to it.
v. There is need for the State to enact or strengthen anti-discrimination and other laws that protect persons living with HIV/AIDS. In this regard, similar to the Kenyan HIV and AIDS Prevention and Control Act, the Vietnamese Law on HIV/AIDS Prevention and Control, and the Australian Anti-Discrimination Act, consideration may be given to enacting a law that provides for progressive provisions relating to HIV/AIDS including confidentiality of records; penalties for discrimination against persons living with HIV; and rights of persons living with HIV/AIDS.
vi. There is a need to increase and continue with sensitisation on HIV and AIDS related issues to all groups of people including marginalised groups such as the poor, women, children, people living with disabilities and the uneducated to ensure information is equally distributed and easily accessed. Further, sensitisation should be carried out in local languages to mitigate the language barrier especially for people in rural areas to ensure all people have adequate access to HIV and AIDS information.
FOOT NOTES
[1] HIV/Aids Program retrieved from https://www.unicef.org/zambia/hivaids on 05/12/21
[2] Inequality a prominent concern for UN human rights monitors retrieved from https://www.universal-rights.org/by-invitation/inequality-a-prominent-concern-for-un-human-rights-monitors/ on 1/12/21
[3] National Health Policy
[4] https://www.unwomen.org/en/what-we-do/hiv-and-aids on 2/12/21
[5]Socio-economic inequality and HIV in South Africa retrieved from https://pubmed.ncbi.nlm.nih.gov/24180366/ on 2/12/21
[6] HIV/AIDS workplace policy addressing epidemic drivers through workplace programs retrieved from https://bmcpublichealth.biomedcentral.com/articles/10.1186/s12889-018-5072-yon 4/12/21
[7] Act No. 22 of 2015
[8] National Comprehensive Condom Strategy 2020-2025
[9] Act No. 6 of 2012
[10]Disability and HIV Policy Brief, retrieved on 8/12/21 from https://www.who.int/disabilities/jc1632_policy_brief_disability_en.pdf
[11] International Guidelines on HIV/AIDS and Human Rights 2006 Consolidated Version- Organized jointly by the Office of the United Nations High Commissioner for Human Rights and the Joint United Nations Programme on HIV/AIDS
[12] Act No.
[13] No.3 of 2019
[14] HIV/AIDS workplace policy addressing epidemic drivers through workplace programs retrieved from https://bmcpublichealth.biomedcentral.com/articles/10.1186/s12889-018-5072-yon 4/12/21
[15] Act No. 23 of 2011
[16] Comprehensive sexuality education in Zambia retrieved on 22/11/21 from https://www.unaids.org/en/resources/presscentre/featurestories/2016/november/20161109_zambia
[17] Act No. 1 of 2011
[18] Obermeyer CM, Baijal P, Pegurri E. Facilitating HIV disclosure across diverse settings: a review. Am J Public Health. 2011;101:1011–1023. [PMC free article] [PubMed] [Google Scholar
[19] No. 10 of 2002
[20] The Multisectoral Impact of the HIV/AIDS Epidemic – A Primer retrieved on 8/12/21 from https://www.kff.org/wp-content/uploads/2013/01/7661.pdf
[21] Chapter 87 of the Laws of Zambia
[22] Mwanza and Another v Attorney General (Selected Judgment No.33-2016 Appeal No. 153-2016)
[23]Ministerial Statement on HIV testing, Counseling and Treatment by the Non. Minister of Health, Dr. Chitalu Chilufya retrieved from https://www.parliament.gov.zm/sites/default/files/images/publication_docs/MINISTERIAL%20STATEMENT%20BY%20ON%20HIV%20TESTING.pdf on 4/12/21
[24] National HIV and AIDS strategic framework 2017- 2021. Retrieved from https://healtheducationresources.unesco.org/sites/default/files/resources/zmb_str_national_aids_strategic_framework_2017-2021_30may2017.pdf on 06/12/21
[25] Anti-Discrimination Act, New South Wales, Australia, 1977, Section 49ZXB & C. cited in Gable L et al., Legal Aspects of HIV/AIDS:
A Guide for Policy and Law Reform (Washington, D.C.: The World Bank, 2007), p. 47.
[26] What is a Pandemic? retrieved from https://www.healthdirect.gov.au/what-is-a-pandemic on 4/12/21
[27] Strength in numbers: data, partners and leadership create resilient HIV services during COVID-19 in Zambia retrieved from https://www.who.int/news-room/feature-stories/detail/strength-in-numbers-data-partners-and-leadership-create-resilient-hiv-services-during-covid-19-in-zambia on 4/12/21
[28] The right to bodily integrity is not specifically recognized under the ICCPR or ICESCR, but has been interpreted to be part of the right to security of the person, to freedom from torture and cruel, inhuman, and degrading treatment, and the right to the highest attainable standard of health- Health and Human Rights Resource Guide, retrived from https://www.hhrguide.org/2014/03/11/table-4-tb-and-the-right-to-bodily-integrity/ on 4/12/21
[29] WHO, UNAIDS statement on HIV testing services: new opportunities and ongoing challenges https://www.unaids.org/en/resources/presscentre/featurestories/2017/august/20170829_HIV-testing-services on 4/12/21