Speech HIV judges forum

Jun 23, 2015


18 June 2015

Hounourable Justice Dingake, Honorable Justices from Botswana, Ghana, Kenya, Lesotho, Malawi, Mauritius, Namibia, Nigeria, Swaziland, Uganda, Zambia, Zimbabwe and South Africa.

Ms Tilly Sellers:  Team Lead, HIV, Health and Development Practice, UNDP Africa Region. Other UNDP Colleagues.

And all other esteemed participants: All Protocols observed.

On behalf of UNDP and its South Africa Country Office, let me welcome you to this Second Meeting of the Africa Regional Judges’ Forum on HIV, Human Rights and the Law.

I hope that you have travelled comfortably and wish you a successful two days’ of deliberations.

This meeting follows from the earlier meeting held in Johannesburg in October 2014 and I am pleased to welcome not only Hon. Justices who participated in the earlier meeting, but also a number of Hon. Judges who are attending this meeting for the first time.

As we know, our region – Sub-Saharan Africa – continues to account for the highest burden of HIV globally.

As we successfully address the epidemic globally; we understand more and more that the effect of the epidemic is on people who are criminalised, and/or marginalised because of who they are and what they do. For example, studies show that sex workers (SW), men who have sex with men (MSM) and people who use drugs (PWUD); people in prisons and migrant populations; continue to be at higher risk of acquiring HIV in all epidemic scenarios. In addition young women and girls continue be at greater risk of HIV in our part of the world.

We also know that the HIV epidemic in Africa continues to raise new and complex legal and human rights’ issues and challenges every day: often through legislation that either do not address, or actively curtail human rights of people most at risk of and most affected by HIV including people living with the virus.

Understanding that the HIV response in the continent needs the active engagement of the Judiciary, and following up from advice given us by a number of Honourable Judges from Africa, we are proud to support this space for Judges to engage with each other on the issue of HIV and AIDS in a collegial environment. This is, in a nutshell, the Africa Regional Africa Judges’ Forum on HIV, Human Rights and the Law.

Allow me at this juncture, to say something about the situation in South Africa. South Africa has a robust constitution and laws that protect the rights of people living with HIV. The Constitution prohibits discrimination and protects people’s right to privacy and confidentiality. Some of the laws that protect the rights of people living with HIV include:

·        Section 54(1)(a) of the Employment Equity Act (EEA), which provides that no person may be unfairly discriminated against on the basis of their HIV status.

·        Section 187(1)(f) of the Labour Relations Act , which provides that employees with HIV-Aids may not be dismissed because of their status.


The biggest challenge, however, is not enacting relevant HIV sensitive legislation and policies, but rather how to practically enforce and implement these laws and policies. Despite its progressive constitution and legislative framework, stigma and discrimination and the violation of the rights of people living with HIV still persist. The High Level Taskforce for Women, Girls, Gender Equality and HIV for Eastern and Southern Africa (HLTF) visited South Africa in 2012 and noted that there was a huge disjuncture between macro level legislation and policy and realities at community and grassroots levels where attitudes and practices were not aligned to the constitution and other policies.


Many people in South Africa continue to feel threatened on account of their gender, sexual orientation or HIV status. Gender inequalities, discrimination and sexual violence are still rife. For example, the Human Sciences research Council Study (2012) showed that HIV incidence rate in females aged 15-24 is 4 times greater than in males the same age. The impact of HIV on women and girls versus men and boys are intrinsically related to gender inequality and unequal power relations, to gender-based violence (GBV) and to stigma and discrimination. Several Medical Research Council Studies have also consistently shown, a positive relationship between the perpetration of violence and HIV infection. This is particularly evident in women and girls living with HIV.

South Africa’s Constitution is the only one on the continent that protects the rights of sexual minorities and the South African Justice System prosecutes the breach of these rights, though the wheels of justice often turn slowly. Yet, stigma against sexual minorities has taken a particularly brutal form in a series of murders and ”corrective” rape of gays and lesbians.


In addition, key populations such as sex workers, MSM and prisoners in South Africa continue to experience stigma and discrimination.

To its credit, however, the South African government has attempted to address these challenges head on, in a number of ways, including by:

·        Rolling out an ambitious National HIV Counselling and Testing Campaign between 2011 and 2012, which was led by the President and which saw more than 20 million South Africans tested for HIV. Besides increasing awareness of testing for HIV this campaign, also aimed to decrease HIV-related stigma.

·        The Department of Justice and Constitutional Development is developing a ‘hate crimes’ Bill and is currently engaged in national consultations on the matter, however, this process has been rather slow. The Department is also reviewing current pieces of legislation that seek to strengthen the enabling environment to address issues of inequality and discrimination

·        SANAC is working with PLHIV to implement the Stigma Index to develop an objective indicator for monitoring stigma

·        The SANAC ‘Ensuring Protection of Human Rights and Improving Access to Justice’ Technical Task Team, which provides strategic technical guidance on policies addressing human rights and access to justice, has been revitalised and strengthened through the co-chairing of this committee by the Deputy Minister for Justice and Constitutional Development.

Furthermore, effective political leadership has contributed positively to demystifying HIV and creating an enabling environment for disclosure and support.

However, much more needs to be done.

While Hon. Justices respond to cases which come to them, their engagement is vital (as has been shown in Africa and elsewhere), through their interpretation of national Constitutions, of legislation, and of international and regional human rights treaties. Using these instruments, the judiciary in our continent have developed important jurisprudence or contributed towards law review and reform that recognises people’s rights and advances access to health care in the context of HIV. I understand this august gathering includes Hon. Justices whose rulings and judgements have indeed done just that: and I congratulate you and your commitments to the cause of justice and human rights.

Ladies and gentlemen,

This two-day meeting agenda includes discussions on a number of vital issues that were identified by the Hon. Judges themselves and will include, among others:

·        A reflection on the science surrounding key HIV populations,

·        Recent legislation, and challenges posed by them as well as on human-rights affirming judgements in the field of HIV and AIDS.

As you are already aware, UNDP is committed to, and continues to support follow up on the recommendations made by the Global Commission on HIV and the Law – the work of which is going to be discussed too during this meeting.

In South Africa, UNDP works within the Framework of the UN Joint Team on AIDS, a modality which brings together all UN agencies to provide an HIV response, based on each agency’s comparative advantage. In 2014, the UN Joint team responded to HIV, Human Rights and the Law in the following ways:

·        UNODC: Secured High level commitment from the National Department of Health, the South African National AIDS Council and the Central Drug Authority to advance harm reduction on the public agenda.

·        ILO: supported the South African National AIDS Council to establish an HIV and TB Legal Clinic in collaboration with the Human Rights Advocacy Group “SECTION-27” - to facilitate access to justice for PLHIV and Key Populations

·        UNFPA: finalized the review of the implementation of the 365 Days National Action Plan to End Gender Based Violence. The report was endorsed by the technical teams of the Social Cluster and the Justice, Crime Prevention and Security Cluster

·        UNAIDS Secretariat: assisted the Department of Social Development (DSD) to complete the gender review of the 9 Provincial Strategic Plans on HIV, STIs and TB.

·        UNDP: Support provided support to Her Rights Initiative (HRI) to develop an advocacy programme to address violence against women living with HIV.

We are therefore proud as UNDP, to be associated with and to support this African Judges’ Forum.

We sincerely hope that this Forum, led and convened by Senior Judges from African countries, would continue to be a space for judges to explore and discuss issues of HIV, human rights and the law, call for expert inputs, as well as share experiences and challenges relating to HIV law before the courts.

I thank you for your attention and once again, I welcome you to South Africa and wish you a fruitful meeting.

Thank you.

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