Right Time to Engage with the African Regional Human Rights System on HIV and Health

Patrick Eba

Many commentators in the 1980s dismissed the African Charter on Human and Peoples’ Rights (African Charter) as “a false dawn for the promotion and protection of human rights in Africa”.[1] This pessimism arose from the African Charter’s substantive flaws and gaps. These include: the potential for States to “misuse” the language of duties to curtail rights; the limitations of rights provided in the so-called “claw-back” clauses, and the lack of an effective protection mandate for the African Commission on Human and Peoples’ Rights (African Commission)−−its supervisory body established in 1987.[2]

Fast-forward 30 years, the African Commission has breathed life into the almost stillborn African Charter, turning it into an effective tool for the protection and promotion of human rights on the continent. Breaking the shackles of its imperfections, the African Commission has undone the limitation of the claw-back clauses to recognise implied rights not explicitly mentioned in the African Charter and to assert its promotional and protective mandates.[3] As a result, the African Commission has earned respect and praise despite its structural, financial, and human resources challenges.

One of these moments of praise came on 27 January 2018 when the African Commission launched its first-ever comprehensive review on HIV titled, “HIV, the Law and Human Rights in the African Human Rights System: Key Challenges and Opportunities for Rights-Based Responses to HIV”.[4]

A committee on HIV and human rights in Africa

The African Commission was slow to respond to the human rights challenges raised by HIV. It took until 2001 for it to make its first meaningful pronouncement on the epidemic when it adopted a resolution on HIV which it described as “a threat against human rights and humanity”.[5] Change began in May 2010 when, at the instigation of civil society organisations, the African Commission established a Committee on the Protection of the Rights of People Living with HIV and Those at Risk, Vulnerable to and Affected by HIV (HIV Committee). It has three members of the African Commission and six independent experts with experience on HIV and the law.[6] The HIV Committee is granted broad powers, including to respond to allegations of HIV-related human rights violations and to undertake fact-finding missions on these violations.[7]

Since its inception, the HIV Committee has conducted country visits to Kenya, Cameroon, Cote d’Ivoire, and Namibia to engage governments, civil society and others on HIV-related human rights challenges and progress in these countries.[8] While these developments are positive, the HIV Committee is yet to use the full extent of its mandate to advance HIV-related human rights in Africa, especially in relation to addressing individual situations of human rights violations.

A ground-breaking report on HIV and human rights

The African Commission undertook a comprehensive study on HIV, human rights and the law to address the gaps in its work as well as to increase understanding and actions on the HIV-related human rights challenges facing African countries. The subsequent report on HIV and human rights stands out because of both its process and content. The process for developing the report was initiated in 2014 with the adoption by the African Commission of Resolution 290 on “the Need to Conduct a Study on HIV, the Law and Human Rights”.[9] It involved desk research, five consultations, and online submissions that enabled the engagement of over 200 organisations and individuals working on HIV in Africa and globally, including governments, national human rights institutions, medical practitioners, public health specialists, civil society organisations, and other international institutions with expertise on human rights, health, and HIV.[10] Importantly, the African Commission also engaged with and heard the lived experiences and perspectives of people living with HIV, sex workers, men who have sex with men, and transgender persons who are criminalised in the great majority of countries in Africa.

The final report was adopted by the African Commission during its 61st Ordinary Session in November 2017. It offers a comprehensive description of the challenges and progress in advancing rights-based responses to HIV in Africa. In its overview of the HIV epidemic in Africa, the report expresses concerns about the unequal progress within and between countries, and it spotlights the vulnerability and limited access to services for women, young people, children, prisoners, sex workers, people who use drugs, gay men and men who have sex with men, and transgender persons.[11]

The report identifies key human rights norms relevant to HIV including the right to life, health, non-discrimination, and describes how they have been interpreted by the African and global human rights mechanisms in relation to HIV and health.[12] This description provides powerful analysis and language that can assist policy makers, civil society, lawyers, judges, and others in their efforts to advance the protection of human rights in the context of HIV and health.

It also discusses the practice of the African regional human rights system on HIV. It documents the extent to which the African Commission has addressed HIV in its resolutions, state reporting, and case law. The report laments the limited attention to HIV by the African Court, and the African Committee of Experts on the rights and welfare of the Child. In an extensive conclusion in this section, it reflects on the reasons for the limited focus on HIV by the African regional system.[13]

There is also an in-depth analysis of HIV-related thematic areas and populations affected by the epidemic. These themes and populations covered in the report are:

  • Inequality and discrimination towards people living with HIV;
  • Compulsory and other forms of coerced HIV testing;
  • Challenges to access to treatment, including restrictive intellectual property regimes;
  • Criminalisation of HIV non-disclosure, exposure and transmission;
  • Civil society space and HIV;
  • Conflict and HIV;
  • The funding crisis and its impact on human rights issues and civil society;
  • Women and girls;
  • Children and adolescents;
  • Persons with disabilities;
  • Indigenous persons;
  • Migrants, refugees and internally displaced persons; and
  • Key populations in need of specific protection and access to HIV and health services (i.e. gay men and other men who have sex with men, sex workers, transgender people, people who use drugs and prisoners).[14]

Good practice covering legislative protection, progressive judicial decisions, and specific programmes to advance access to HIV services are presented from African countries. The report concludes with extensive and practical recommendations to African States, regional and national human rights bodies, civil society, the media, and religious and traditional leaders. There are indicative questions and issues on HIV to guide State periodic reporting to the African Commission in an annex. It also includes an accountability tool that could also be used by civil society organisations when preparing shadow reports to the African Commission.[15]

Where next?

At the launch of the report at the 30th Summit of African Union (AU), participants including the Chairperson of the African Commission, the UNAIDS Executive Director, the AU Commissioner for Political Affairs, the Vice-President of Botswana, and civil society representatives, stressed the significance of the report and its recommendations. While these recommendations are directed at a wide range of stakeholders, the African Commission remains a central actor for promoting and monitoring progress on HIV-related human rights. Through its HIV Committee, the African Commission can engage States, national human rights institutions, civil society, and donors in actions to advance the report’s conclusions and recommendations.

The African Commission needs support and funding to advance this work. Historically, it has relied on partner support to advance human rights issues. Civil society, donors, and other actors working on HIV and health should now seize the opportunity of the report to engage and support the Commission and its HIV Committee.

In recent years, the African Commission has faced challenges in its work on issues closely related to HIV, especially on sexual orientation and gender identity. For instance, it faced political pressure over granting observer status to the Coalition of African Lesbians in 2015.[16] At this year’s AU Summit where the HIV report was launched, the independence of the African Commission was threatened by suggestions its work should be supervised by a political body. Although rejected, the final decision of the AU’s Executive Council expresses concern about the “non-implementation of Executive Council decision […] on the withdrawal of the observer status from the Coalition of African Lesbians” and “urgently requests the convening of a joint retreat between the Permanent Representatives’ Committee and the [African Commission] to resolve various concerns expressed”.[17] This decision signals challenges ahead for the Commission and other regional African human rights mechanisms.

Accordingly, urgent efforts are needed to implement the recommendations in the ground-breaking report on HIV and the law, and to advance the work of African Commission on HIV and human rights. Although the African Commission has been resilient, it needs support and engagement today more than ever to overcome historic and emerging challenges to its work. Its voice and authority is needed for the protection and dignity of all, including in relation to HIV and health.

Patrick Eba is senior human rights and law adviser at UNAIDS, the Joint United Nations Programme on HIV/AIDS, Geneva.

Please address correspondence to Patrick Eba. Email: ebap@unaids.org.

[1] African Charter on Human and Peoples’ Rights, adopted on 27 June 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force on October 1986; G Naldi, “Future trends in human rights in Africa: the increased role of the OAU?,” in M. Evans and R. Murray (eds), The African Charter on Human and Peoples’ Rights. The system in practice, 1986-2000 (Cambridge: Cambridge University Press, 2002), pp. 5-6.

[2] M. Mutua “The African Human Rights System: A critical evalutation”, p. 3. Available at http://hdr.undp.org/sites/default/files/mutua.pdf; See also M. Evans and R. Murray (eds), The African Charter on Human and Peoples’ Rights. The system in practice, 1986-2000 (Cambridge: Cambridge University Press, 2002).

[3] F. Viljoen, International human rights law in Africa, Second edition (Oxford: Oxford university Press, 2012), p. 289.

[4] African Commission on Human and Peoples’ Rights, HIV, the Law and Human Rights in the African Human Rights System: Key Challenges and Opportunities for Rights-Based Responses to HIV, 2018. Available at http://www.achpr.org/files/news/2017/12/d317/africancommission_hiv_report_full_eng.pdf. UNAIDS “African human rights body urges renewed efforts on human rights in response to HIV” (January 31, 2018). Available at http://www.unaids.org/en/resources/presscentre/featurestories/2018/january/20180130_african-human-rights; AIDS and Rights Alliance for Southern Africa, African Men for Sexual Health and Rights, South African Litigation Centre, “Human rights organisations applaud African Commission’s launch of HIV Report” (December 10, 2017). Available at http://www.arasa.info/news/media-statement-human-rights-organisations-applaud-african-commissions-launch-hiv-report/.

[5] African Commission on Human and Peoples’ Rights, Resolution 53 on HIV/AIDS as a Threat Against Human Rights and Humanity, ACHPR /Res.53(XXIX)01, adopted during the 29th Ordinary Session in Tripoli, the Great Socialist Peoples’ Libyan Arab Jamahiriya, from 23rd April to 7th May 2001.

[6] African Commission on Human and Peoples’ Rights, Resolution 325 on the Appointment of the Chairperson of the Committee on the Protection of the Rights of People Living with HIV (PLHIV) and those at Risk, Vulnerable to and Affected by HIV, ACHPR/Res.325 (LVII) 2015, adopted at the 57th Ordinary Session held in Banjul, The Gambia, from 4 to 18 November 2015.

[7] African Commission on Human and Peoples’ Rights, Resolution 163 on the Establishment of a Committee on the Protection of the Rights of People Living With HIV (PLHIV) and Those at Risk, Vulnerable to and Affected by HIV, CADHP/Rés.163 (XLVII)10, adopted during the 47th Ordinary Session in Banjul, The Gambia, from 12 to 26 May 2010.

[8] Committee on the Protection of the Rights of People Living With HIV (PLHIV) and Those at Risk, Vulnerable to and Affected by HIV, available at http://www.achpr.org/mechanisms/hiv-aids/.

[9] African Commission on Human and Peoples’ Rights, Resolution 290 on the Need to Conduct a Study on HIV, the Law and Human Rights, ACHPR/Res.290 (EXT.OS/XVI) adopted during the 16th Extraordinary Session held from 20 to 29 July 2014 in Kigali, Republic of Rwanda.

[10] Key organisations that provided technical and financial support to the development of the report are the Joint United Nations Programmes on HIV/AIDS (UNAIDS), African Men for Sexual Health and Rights (AMSHeR), the AIDS and Rights Alliance for Southern Africa (ARASA) and the Southern African Litigation Centre (SALC).

[11] See chapter 2 of the HIV report (see note 5).

[12] See chapter 3 of the HIV report (see note 5).

[13] See chapter 4 of the HIV report (see note 5).

[14] See chapter 5 of the HIV report (see note 5).

[15] See note 5, pp 99-102.

[16] For a description of these issues, see Ending violence and other human rights violations based on sexual orientation and gender identity. A joint dialogue of the African Commission on Human and Peoples’ Rights, Inter-American Commission on Human Rights and United Nations (Pretoria: Pretoria University Law Press, 2016), p. 41. Available at http://www.chr.up.ac.za/index.php/centre-news-a-events-2016/1617-african-commission-launches-joint-report-on-sexual-orientation-and-gender-identity-.html.

[17] African Union, Decision on the African Commission on Human and Peoples’ Rights, Doc. EX.CL/1058(XXXII), 32nd Ordinary Session of the Executive Council, 25-26 January 2018, Addis Ababa, Ethiopia.