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Judges welcome SADC Model Law on HIV/AIDS

Summary & Comment: Legal experts have hailed the newly adopted SADC Model Law on HIV, saying although it is a non-binding international law, it is persuasive and can guide countries as they develop or reform their own laws. - MM

Author: Moses Magadza, Windhoek Date Written: 27 October 2009
Primary Category: Health and AIDS Document Origin: AfricaFiles
Secondary Category: Southern Region Source URL: http://www.africafiles.org
Key Words: Botswana, law, human rights, HIV/AIDS

African Charter Article #16: Every individual shall have the right to enjoy the best attainable state of physical and mental health. (Click for full text...)

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Judges welcome SADC Model Law on HIV/AIDS


Top judges from east and southern Africa have welcomed the recently developed SADC Model Law on HIV/AIDS, saying it is a giant step forward in a region in which legal response to HIV/AIDS has been sluggish. Speaking in separate interviews at the end of a joint SADC Parliamentary Forum and SADC Tribunal workshop in Gaborone, recently, the judges said the SADC Model Law on HIV was comprehensive and said some aspects of it could be adapted or adopted by national legislatures all over the SADC region.

Botswana’s High Court Judge, Dr Key Dingake, said the Model Law was comprehensive and covered broad areas.  He encouraged the region’s countries to study it and figure out which aspects they could bring into their own domestic legal systems. Justice Dingake said the SADC Model Law on HIV complied with international human rights and best practices. “It doesn’t follow that countries must transplant lock-stock-and-barrel the Model Law into their national legal systems.  All they need to do is see which parts they may incorporate.  The Model Law guarantees respect for human rights,” he said.

A retired Judge with Kenya’s Court of Appeal, Lady Justice Effie Owour, said although during the workshop participants found difficulties about the “enforceability of the so-called Model Law”, towards the end there was consensus that its main use would be to guide governments craft their own laws. “There are very good aspects in this Model Law.  We (in Kenya) are actually going to look at it and see if we can use it to fill gaps in our own laws.  We have a Bill on HIV in our country and we will see how we can strengthen it by taking aspects of this Model Law – if one can call it a law,” she said. She said while some people took issue with its tone, what mattered was the substantive use of the ‘Model law’.  She called for greater lobbying of national governments so that they legislate around HIV/AIDS.

Namibia’s High Court Judge, Nate Ndauendapo also welcomed the SADC Model Law on HIV and said the whole workshop had been “an eye-opener”. “It was an eye-opener in that for me, the statistics that were revealed there about HIV infection in the SADC region were really shocking.  I was not aware about the extent of the epidemic in southern Africa.  The second aspect for me was the lack of legislation in southern Africa to deal with HIV issues especially relating to discrimination against people with HIV/AIDS.  I have looked at the SADC Model Law on HIV.  It is a good document.  My view is that all member states of SADC need to seriously and urgently look at how we can incorporate aspects of it into our domestic laws.  The sooner we do it, the better,” he said.

Judge Ndauendapo said there was need for more sensitization of judges on HIV related issues “so that they adopt a sensitive and modern approach to HIV/AIDS issues”. “I think there is need for judicial activism but there is also need to develop common understanding on various issues.  When we discussed, for instance provision of condoms to prisoners, there were very divergent views.  About 30 years ago, the use of condoms in prisons was not a big issue.  Now with AIDS, we must be progressive in our approach to combating the disease.  The reality is that people are having sex in prisons and we have a duty to protect them.  Once they serve their sentences, prisoners go back into the society,” he said.

Botswana’s Attorney General, Hon Dr. Athalia Molokomme said she had also read the SADC Model Law on HIV with very keen interest and had found it impressive in its wide coverage of pertinent HIV-related issues and compliance with international human rights principles. “It is comprehensive in its articulation of rights, responsibilities and obligations of the state towards HIV/AIDS.  The SADC Treaty and other subsidiary community legislation enjoin member states to harmonize the laws of SADC member states in general in the context of regional integration.  The Model Law, which does not as yet have the status of a SADC document, provides a comprehensive framework for harmonization of HIV and human rights laws in southern Africa.  It is part of the SADC agenda, although it comes from an organization that brings together parliaments of the region, and not the SADC summit (but) to the extent that the Model Law is the product of the collective wisdom of our elected representative, speakers of parliamentarians working at the regional level, (it) remains an important reference point and sounding board for legislative reforms,” Hon Molokomme said.

Malawi’s Justice Isaac Mtambo, who is also a Judge with the SADC Tribunal, also welcomed the SADC Model Law on HIV and said although it was not binding, it was “persuasive”. “It is the kind of law that we would feel persuaded by when we make our judgments.  We can allude to it occasionally but it is not binding on us, no doubt,” he said. Justice Mtambo said the workshop had succeeded in bringing together people from various jurisdictions to exchange views on the SADC Model Law on HIV. His considered view is that more than 70 per cent of the SADC Model Law on HIV is relevant and could be incorporated into domestic legislations if member states so wished. Justice Edward Twea of Malawi described the SADC Model Law on HIV as “all encompassing”. “Even a country that would wish to take it as it is can do so.  However, the essence is not to have one law but to be uniform in our approaches.  The SADC Model Law on HIV is pointing the direction for us.  How far we go is up to us,” he said.

The (meeting) was held to discuss HIV/AIDS related legislation in the region with a view to establishing consistency and compliance with human rights law and commitments across domestic jurisdiction. Participants to this workshop were primarily legal professionals that included judges, magistrates and lawyers as well as key legislators. Discussions revolved around –but were not be limited to – an overview of the HIV/Epidemic and emerging public health concerns; the Southern Africa HIV/AIDS Model law and the extent to which it is consistent or in conflict with national laws; challenges in ensuring a rights-based approach in the war against HIV/AIDS; and case law on HIV/AIDS on rights of marginalized populations; disclosure of status; forced sterilization and mother-to-child transmission.

The relevance of the Model Law as well as contentious provisions in bills and laws being proposed in various parts of the region also come up for debate. At the 24th Plenary Assembly session of the Southern Africa Development Community Parliamentary Forum in Arusha, Tanzania, 20th  – 27th November 2008, 14   Presiding Officers and 59 Members of Parliament representing the parliaments of Angola, Botswana, Democratic Republic of Congo, Lesotho, Malawi, Mauritius, Mozambique, Namibia, Seychelles, South Africa, Swaziland, Tanzania, Zambia, and Zimbabwe unanimously adopted the Regional Model Law on HIV.

The Model Legislation is aimed at assisting member states - in particular policy makers and legislative drafters to address all the relevant areas in need of legislative reform without usurping the authority of national legislatures. An important benefit of the Model law is that it builds on the collective experiences of other legislatures, providing a pool of wisdom from which a particular legislature may select and adapt provisions to suit its own circumstances and needs.

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Disclaimer: Opinions expressed in this article are those of the writer(s) and not do necessarily reflect the views of the AfricaFiles' editors and network members. They are included in our material as a reflection of a diversity of views and a variety of issues. Material written specifically for AfricaFiles may be edited for length, clarity or inaccuracies.

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