Just yesterday, we were honoured as a country to host the International Human Rights Day, on behalf of the United Nations Human Rights Commission. The significance of this event is not just the commemoration of the global struggle for the hegemony of human rights in our social, economic and political architecture. Very significantly is that it was for the first time that this event was hosted outside Geneva, the host of the United Nations head quarters, and that we in Africa in general and South Africa in particular, were chosen for this honour.
Many already know that our iconic leader, former President Nelson Mandela, has already taken front line role in tackling the HIV scourge in our country and on the global stage. We know of the use of his prison number, 46664, as a symbol against this disease. The basis of his intervention is not just that many people suffer and die, but in his own words, because he considers it to be a human rights issue. Ours is therefore not to pass judgement but to acknowledge that those infected and affected by the virus cannot be treated as cases of the same behavioural basket.
Often the case, jurists are perceived by society as implementing the law, and that therefore are rigid with regards to new developments. However, none other than jurists, are better positioned to understand the limitations of prevailing legal frameworks, and accordingly the basis and possibilities for shifting the frontiers of what is legally permissible and that which is legally impermissible.
But I am confident that our meeting here saliently concurs with former President Mandela in asserting that indeed issues pertaining to HIV are issues of human rights. The concept of human rights speaks to the modelling of social, economic and political relations, to holistically reflect the common vision of a society whose shared welfare demonstrates no prejudice, one against the other, in any way.
Our claim to a culture of human rights would therefore be incomplete if we disregard the incidence and impact of HIV in our times. Many times, people who suffer from HIV have no basis for legal recourse, because society took the stance that those infected have acquired self inflicted injury, and that the only recourse is to receive empathy from society, the private sector and government.
The incidence of HIV in our times is like a plague that has prolonged its existence for too many years, and despite the fact that we have made breakthroughs in space explorations, yet we still do not have solutions pertaining to the human physiology with regards to this dreaded disease.
There are various measures that communities through non-governmental organisations, private sector and governments, have taken to tackle the spread and impact of HIV. There is recognition that each sector can only do as much, and that the maximum positive impact against this disease requires the synergy of all humanity.
Our government has embraced the ABC strategy because it is potentially effective strategy if applied consistently. As government, we have the responsibility to ensure that policy measures enable all other role players to do their part effectively. For instance, government encourage the ABC strategy with regards to role of individuals through publicity campaigns and the distribution of free condoms. And with regards to the role of pharmaceuticals, government seek to ensure that the drugs they manufacture are affordable for the poor.
With regards to companies that employ people infected with HIV, government creates policies that would ensure that those infected are not discriminated against. Government must also ensure that research on issues of HIV is made easier through funding are related policy modelling. Our attitude towards those against whom we discriminate on the basis of their HIV status can be regarded as conduct that has consequences in law and one that affects those fundamental rights that must enjoy protection in the Constitution.
In this instance I refer to a case where a job applicant was denied employment by our national airline carrier, the South African Airways (SAA) on the grounds that the applicant was HIV positive. When this case came before the constitutional court, Ngcobo J in the case of Hoffmann v South African Airways observed as follows:
“At the heart of the prohibition of unfair discrimination is the recognition that under our constitution all human beings…must be accorded equal dignity”. Noting prejudice attendant to HIV positive people, the learned judge went on to say: “Prejudice can never justify unfair discrimination” and further that there are “cases in which prejudice was taken into consideration in denying the rights that we now take for granted”. He also said: “if as a nation we are to achieve the goal of equality that we have fashioned in our Constitution, we must never tolerate prejudice, either directly and indirectly”.
The constitutional court found that SAA’s decision constituted a violation of the appellant’s right to equality as provided for in terms of section nine of our Constitution which states as follows: “everyone is equal before the law and has the right to equal protection and benefit of the law”. Nothing demonstrates any clearer than the Hoffman judgment that SAA’s decision was indeed a brazen violation of fundamental rights merely because the job applicant was a virus carrier.
According to the AIDS Law project, over the years, the South African National Defence Force (SANDF) has justified its HIV exclusion policy on grounds such as the following, and I quote:
* The military has a legal duty to protect the Republic and people with HIV undermine its ability to fulfil this responsibility
* That people living with HIV are not suited medically or mentally and will therefore be unable to tolerate stress, physical exercise or adverse weather conditions
* There is a need to keep HIV prevalence low in the military
* HIV positive people pose a risk to other soldiers
* The need to comply with the United Nations regulations that they allege prohibit the deployment of people with HIV as peacekeepers.
According to the AIDS Law project, Gilbert Marcus, SC, argued on behalf of South African Security Forces Union (SASFU) that these stereotype and unfairly discriminate against people with HIV. As the AIDS Law project helped to highlight, it was found out that there is no medical evidence to justify a blanket ban on all people with HIV. Instead the effect of the policy is to stigmatise people and undermine HIV prevention, treatment, care and support within the SANDF, this being the AIDS Law project’s views.
The issue of prejudice associated with the stigma of living with HIV is a worldwide challenge. Some have taken the matter further, by arguing that in order to de-stigmatise HIV and AIDS and help stop its spread, perhaps making it an informed disease could work. Here the interests of an individual vis-à-vis the right to privacy may be pitted against the public interests against the spread of the disease.
The question facing this meeting of esteemed jurists will be what does the law says in this regards? Alternatively, what should the law say in this regard?
On behalf of the South African government, the National Department of Health adopted the ten point plan whose highlights are the following key points:
* Provision of strategic leadership and creation of a social compact for better health outcomes
* Implementation of National Health Insurance (NHI)
* Improving the quality of health services
* Overhauling the healthcare system and improve its management
* Improved human resources planning, development and management
* Revitalisation of infrastructure
* Accelerate implementation of the HIV and AIDS and sexually transmitted infections. National strategic plan 2007 to 2011 and increase focus on TB and other communicable diseases.
* Mass mobilisation for better health for the population
* Review of drug policy
* Strengthen research and development.
The question is whether there are such measures so far taken enough to tackle the issue of HIV? What are the legal bases to ensure that no loop hole is exploited that may discriminate against people either infected or affected by HIV? I suppose this meeting of Eminent African Jurists is better positioned than any other to give practical answers to such questions, and broadly chart a way forward on the measures that must be implemented to alleviate the consequences of HIV and help fight with the hope of defeating this scourge.
In his address to the South African nation on the occasion of the recent commemoration of World AIDS Day, South African President Jacob Zuma outlined the following tasks facing our government and people:
* Every South African should know his or her HIV status
* All children under one year of age will get treatment if they test positive. Initiating treatment will therefore not be determined by the level of CD cells.
* All patients with both TB and HIV will get treatment with antiretroviral if their CD4 count is 350 or less. At present treatment is available when the CD4 count is less than 200. TB and HIV and AIDS will now be treated under one roof
* All pregnant HIV positive women with a CD4 count of 350 or with symptoms regardless of CD4 count will have access to treatment. At present HIV positive pregnant women are eligible for treatment if their CD4 count is less than 200
* All other pregnant women not falling into this category, but who are HIV positive, will be put on treatment at fourteen weeks of pregnancy to protect the baby. In the past this was only started during the last term of pregnancy
* In order to meet the need for testing and treatment, we will work to ensure that all the health institutions in the country are ready to receive and assist patients and not just a few accredited antiretroviral centres. Any citizen should be able to move into any health centre and ask for counselling, testing and even treatment if needed.
The President also announced government’s timeframe and said that the implementation of all these announcements is effective from April 2010. Institutions are hard at work to ensure that systems are in place by 31 March.
I am fully cognisant that our government’s strategy as announced by the President recently comes against the backdrop of past conflicting perspectives on what must constitute our national AIDS policy and strategy, to combat the spread of the disease, treat those already infected and attend to the social welfare of both those infected and affected.
I must say that there is now consensus on the issues of HIV than ever before, and having removed this unnecessary huddle in the fight against HIV, I am confident that we will make even greater strides towards achieving our goals.
One of the consequences of HIV is the huge numbers of orphans and child headed households. In this regard, government has social grants for indigent children, but the challenge is always to ensure that such grants serve their purposes and are not abused for other ends.
As the South African government, we established the South African National AIDS Council (SANAC) with the view of finding common ground on HIV strategies, through the leadership of government but involving the non-governmental organisations (NGO) sector as well as the private sector.
Since the law speaks to convention, then we do expect this meeting to help illuminate on the possible measures we can explore to ensure that all role players, as I have mentioned, do not just come into the party in the fight against HIV, but also to ensure that we are ad idem as it were, with regards to each and everyone’s responsibility.
As we meet here, I am mindful that we are the continent with the highest infliction of the HIV in the world. While China prides itself with the greatest economic growth of our times, launching it into the club of superpower status, we in Africa seem to be recognised of regressive aspects such as poverty, and in this case the high level of the incidence of HIV infections. I sincerely hope that this meeting with help our beloved continent to make a turn around on this human rights issue, as we collectively seek to reposition Africa as a success story.
I therefore take this opportunity to wish you well in your deliberations, and the continent awaits the outcomes of your esteemed perspectives.
I thank you!
Issued by: Department of Justice and Constitutional Development
12 December 2009
Source: Department of Justice and Constitutional Development (http://www.doj.gov.za/)
