July 2012
In 2006, a Namibian woman Hilma Nendongo was sterilized without her knowledge or consent while giving birth to a healthy baby boy via caesarian section. In a manner of minutes, the doctors arbitrarily took her medical choice, and the right to have more children, away. The procedure was performed because Hilma was HIV positive. Studies suggest that coercive and discriminatory practices in health care settings—including forced sterilizations and abortions among HIV-positive women—are prevalent in Namibia and in many other countries around the world. Most cases never see the light of day, but with the help of non-governmental organizations Hilma, along with 15 other HIV-positive women, used the law and the justice system as tools to assert their human rights. In 2009, they sued the Namibian government which continues to deny ill-treatment. The judgment is expected by the end of this month.
This story, told by Priti Patel from the Southern African Litigation Centre during the July International AIDS Conference in Washington, DC, is just one example of the intersection between law and public health with regard to HIV/AIDS, a nexus that the ABA Rule of Law Initiative (ABA ROLI) has proved committed to in recent years. In the coming weeks, ABA ROLI will publicly release its HIV/AIDS Legal Assessment Tool. The tool, which is funded by the U.S. Agency for International Development, is a mechanism for assessing a country’s compliance with relevant international human rights standards, the legal system’s ability to address HIV-related discrimination and the commitment of resources to ensure the rights of people living with HIV (PLHIV) and key populations.
“Law can be a powerful tool in ending the AIDS epidemic,” said Mandeep Dhaliwal of the Global Commission on HIV and the Law during the conference, which drew prominent voices from the worlds of science, diplomacy, law, politics, philanthropy and entertainment. Notable presenters included President Bill Clinton, World Bank President Jim Yong Kim, UNAIDS Executive Director Michel Sidibé, Bill Gates, Elton John, and U.S. Secretary of State Hillary Rodham Clinton, who reiterated the U.S. government’s commitment to an “AIDS-free generation.”
“Lawyers can make very significant contributions to the fight against HIV/AIDS,” explains ABA ROLI Senior Legal Analyst Paulina Rudnicka, who attended the conference. “There is no doubt that HIV-related discrimination hampers prevention efforts and forces people underground, increasing their vulnerability to HIV.” Rudnicka goes on to say that the elimination of discrimination is critical to curbing infection rates and that strengthening the rule of law and promoting human rights are key tools against the epidemic.
In designing the HIV/AIDS Legal Assessment Tool, ABA ROLI and external experts determined that the following five elements should be present in systems that effectively address the needs of PLHIV: (1) collection of country-specific information to identify important elements of the reform process; (2) legislative reform to develop a clear, fair, and human rights-oriented regulatory framework; (3) enhancing access to justice and essential services through legal awareness raising, specialized legal aid services, medical-legal partnerships, multifaceted referral systems, and strategic litigation; (4) strengthening the capacity of justice institutions to prevent and prosecute human rights violations and corruption in the health sector; (5) and empowering affected populations and civil society organizations to advance human rights through community-driven initiatives. The tool will be released in Fall 2012.
To learn more about the ABA Rule of Law Initiative’s research and assessment tools, contact us at rol@americanbar.org.