Report of the Meeting of Eminent African Jurists on HIV and the law in the 21st century

Published: December 10, 2009

From 10 – 12 December 2009, a meeting of eminent African jurists was held in
Johannesburg, South Africa to discuss HIV and the law in the 21st century. The primary
objectives of the meeting were to discuss the role of the law and the role of the judiciary in
responding to and mitigating vulnerability to HIV infection and the impact of the AIDS
epidemic across sub-Saharan Africa. Twenty-four judges from more than fifteen sub-
Saharan African countries participated. The meeting was co-organised by the International
Association of Women Judges (IAWJ), the International Commission of Jurists (ICJ), the
Joint United Nations Programme on HIV/AIDS (UNAIDS) and the United Nations
Development Programme (UNDP). As a local partner, the AIDS Law Project provided
technical and logistical support to the organisation of the meeting.

The major premise of the meeting was that law and its appropriate enforcement are
essential tools with which to create an enabling environment for effective responses to HIV
and to provide access to justice for those affected by HIV. In the context of sub-Saharan
Africa, which bears a disproportionate share of the global burden of HIV infections and
morbidity and mortality from AIDS, the law and the judiciary must be fully engaged to do the
utmost to help stem the tide of the epidemic. With this in mind, the meeting offered a unique
space for participants to discuss the law, judicial decision-making in the context of HIV, and
the impact of the law on the epidemic and those affected by it. Topics discussed included the
need to do more to open up the judicial system to those affected by and living with HIV, the
need for judges to have the latest information based on accurate and up-to-date scientific
evidence about the response to HIV, the particular needs of women seeking access to
justice in the context of HIV, how best to combat discrimination experienced by those living
with HIV and how best to adjudicate issues concerning the criminalisation of exposure to HIV
and/or transmission of HIV.

The philosophical architecture that framed the meeting was an acceptance of both the power
and the limits of the law. A strong theme that emerged was the ability of the law and, by
implication, the ability of judges who interpret and apply the law to play a transformative role
with regard to the social and legal response to HIV. A progressive approach to legal
interpretation, for example, can enable judges to ensure that people enjoy substantive rights
under general and constitutional law even in the absence of legislation that expressly
protects the rights of persons living with HIV.

At the same time, the judges demonstrated sensitivity towards the challenges inherent in the
relationship between the judiciary and the elected branches of government – the need in the
separation of powers for a healthy relationship between the judiciary, the executive and the
legislature, in which a strong judiciary ensures that all people, including those in minorities,
enjoy substantive rights.

Within this framework a range of more specific issues formed the basis of various
presentations, discussions and debate. The key themes discussed during the meeting
included the importance of evidence-informed decision making on HIV-related issues.
Presentations and discussions emphasised the importance of ensuring that judges have
access to appropriate and scientifically accurate information on HIV and that they base their
findings in HIV-related cases on such information and evidence. The meeting further
highlighted the fear, prejudices and stereotypes relating to HIV, to people living with HIV and
to those most at risk of HIV infection and how these too often translate into discriminatory
laws and law enforcement. Examples of evidence-informed decision-making were shared
and discussed to highlight how the law and the judiciary can challenge and defeat HIVrelated
myths, as well as prejudice and discrimination against people living with HIV.

The role of the law in addressing gender-based violence and promoting the realisation of
women’s rights was also discussed in the broader context of increasing legal literacy and
ensuring greater access to justice for women, people living with HIV and those most at risk
of HIV infection. Examples of judicial projects and civil society initiatives focussing on
ensuring access to justice were discussed. The meeting devoted specific attention to the role
of the criminal law in the AIDS response, especially the increasing recourse to overly-broad
legislation criminalising HIV transmission or exposure in many African countries. The
debates on this issue highlighted the potential negative impacts of the criminalisation of HIV
transmission and exposure on individual rights and on the AIDS response, but also
underlined the need for further awareness of the issue as certain members of the judiciary
found merits in the criminalisation of HIV transmission.

To crystallise the main discussions, conclusions and agreements reached during the
meeting, the participants adopted a Statement of Principles on HIV, the Law and the
Judiciary (see Annex A) as a guiding document for members of the judiciary in sub-Saharan
Africa in responding to HIV and AIDS.

While the meeting was an overwhelming success vis-à-vis its stated goals, participants
underlined that it represents only one of many steps that should be taken in the judicial
journey towards contributing positively in the response to HIV.

Full text of report available at link below –

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