Digest of Good Legislative Practices Relating to HIV/AIDS in Selected African Countries

1. Digest of Good Legislative Practices Relating to HIV/AIDS in Selected African Countries IIRA 5TH African Regional Congress, Cape Town 27 March, 2008 Jane Hodges Social dialogue, labour law and labour administration Branch International Labour Office www.ilo.org/public/english/dialogue/ifpdial/downloads/papers/digest.pdf

2. The Digest – An Overviewwww.ilo.org/public/english/dialogue/ifpdial/downloads/papers/digest.pdf • Aims & Methodology (bilingual English/French) • Commonalities • Extensive range of laws • Ratified Conventions & 2001 Code • National laws applicable to HIV/AIDS cases • Institutional responses • Innovative measures

3. The Digest • Aims to enhance compliance with legal frameworks relating to HIV and AIDS in the world of work • Aims to improve the handling of HIV/AIDS cases in the labour justice systems - better access to labour justice • Aims to facilitate UNGASS implementation • Compiles research of ‘good practices’ on HIV and AIDS in 14 African member States • Effective laws and policies tested in the real world of work and proven successful • Uses 2001 Code & ILS as benchmark for assessment of national laws • Is part of a Swedish Sida-funded programme to mitigate the effects of HIV and AIDS in sub-Saharan Africa

4. Commonalities • Influence of international human rights instruments, UN Bill of Rights, Universal Declaration of Human Rights, CEDAW • ILO Standards, Discrimination Convention 1958 (No. 111), Code of Practice 2001 well used • Gender dimension – weak in the examined legislation • Wide range of national legal instruments used in the legal response to HIV/AIDS (non-discrimination, prevention, care and treatment) • SADC member States including specific HIV/AIDS related provisions in the general labour/employment law – future SADC Model Law?

5. Constitutional provisions • Focus on fundamental human rights, equality and non-discrimination • Constitutions specify rights of particular relevance in the response to HIV/AIDS • The right to privacy • The right to a healthy environment • The right to earn a living • The right to development • The right to employment • The right to health • The right to education • The right to information • The right to freedom of association…and more

6. National labour laws • Broad range of useful laws to respond to HIV/AIDS: • Labour codes • Employment equity • Labour relations • Public service • Trade disputes • Sectoral matters (esp. mining sector) • Factories and occupational safety and health • Provision of equipment and a safe working environment • Workers’ compensation for occupational accidents and diseases • Education, vocational training and retraining, social security and social insurance • Many countries have specific laws that ban work-related testing or screening • Note the importance of providing information and counseling on HIV/AIDS in the context of education, vocational training and skills

7. Other relevant laws • In many countries strategies and policies on HIV/AIDS are set out in detail, e.g. National Strategic Policy & Plan. Yet….solid policy does yet not necessarily lead to adoption of a specific, holistic law to respond to the epidemic • Broad range of other laws are useful in responding to the epidemic • Public service legislation • Mining sector texts • Family law • Occupational Safety & Health texts • Laws protecting persons with disabilities • Jurisprudential expansion of the laws: 6/14 countries studied have cases (reported or not), mostly where the worker won (Bot.,B.F., DRC, Mal.,S.A., Zim.)…why so few?

8. Customary law • Certain practices protected and promoted by customary law have a negative impact on HIV/AIDS infected and affected persons, particularly in situations of women’s and girls’ lesser status/vulnerability under customary law • Yet…some customary practices help mitigate the impact of the disease on persons living with HIV/AIDS

9. Institutional responses • All of the 14 countries covered have legislated for national AIDS bodies, which are active on policy • Many have legislation for Ombud offices, human rights commissions and workplace committees…but do they attract cases related to HIV/AIDS discrimination? • Budget issues raised in some of the research, tricky to verify

10. Innovative approaches • Benin: Act No. 2005-31 (2005) • Prevention, management and control of HIV/AIDS • Fully integrates the fundamental principles of the ILO 2001 Code of Practice • Provides PLWHA rights that can be exercised in an employment relationship and enforced against the State • Obliges the State to create a “special fund for fighting and overcoming the effects of AIDS”

11. Innovative approaches • Botswana: The Public Service Code of Conduct on HIV/AIDS in the Workplace (2001) • To promote consistent responses to the epidemic in the public service • To create an environment that is free from discrimination and stigmatization • Burkina Faso: Labour Court Decision No. 173 (2004) • Unfair and abusive dismissal

12. Innovative approaches • Cameroon: Decision No. 0008/MSP/CAB (2005)  • Biological examinations and medical follow-up for PLWHA and receiving anti-retroviral drugs • Elaborates on specific medical tests for PLWHA and receiving ARV treatment that are subsidized by the State • Reduces the cost of biological examinations and has had a significant impact in the response to HIV/AIDS in Cameroon

13. Innovative approaches • Ethiopia: Article 39 of Labour Proclamation No. 377/2003 • Article 2 of the Proclamation provides for the amendment of the Labour Proclamation No. 494/2006 and: • Provides PLWHA to the right of severance pay at the termination of employment

14. Innovative approaches • Lesotho: The 2006 amendments to the Labour Code and the 2007 guidelines • Cover the aspects that the ILO recommends as a minimum for inclusion in a holistic, complete text on HIV/AIDS

15. Innovative approaches • Malawi: The Industrial Relations Court’s sole decision on HIV/AIDS discrimination in the workplace (2004) • No laws specifically address this aspect of HIV/AIDS, yet the Court refers to Malawi’s ratification of Convention No. 111 • Places a constitutional duty on the State to pass protective legislation and formulate national policy that gives effect to fundamental rights entrenched in the Convention and the African Charter on Human and Peoples’ Rights…watch this space!

16. Innovative approaches • Mauritius:The review of national legislation in the context of a UNDP “Gender and Women’s Empowerment” Project (2005) • Acknowledges the link between gender and HIV/AIDS • Recommends legislation be reviewed to strengthen protections against discrimination based on real or perceived HIV status

17. Innovative approaches • Mozambique:National Assembly Bill (2006) • authorizing State provision of a basic meal to each HIV/AIDS patient in the country • Brings attention to the overall wellness of women and men on ARV treatment • Acknowledges the improved receptiveness to treatment and the ability of the person to continue to work if they so wish

18. Innovative approaches • Nigeria: The National HIV/AIDS Workplace Policy for the Education Sector • Emphasize on information and training leading to behaviour change • Message against stigmatization and discrimination • RDC: The national Constitution • Guarantee of equality of PLWHA

19. Innovative approaches • South Africa: The legislation and national policy for learners • Provisions on non-discrimination against learners on the basis of HIV/AIDS status • Regulate the supply and use of safety equipment, includes awareness-raising on HIV/AIDS and STIs, measures for preventing HIV transmission in contact sports, privacy and confidentiality issues • Provide for the rights and responsibilities of parents, teachers, and learners and aim to create a supportive and non-discriminatory environment

20. Innovative approaches • Togo: Act N° 2005-012, Chapter VI “The protection of persons vulnerable to HIV/AIDS” • Protection of persons with respect to HIV/AIDS • Sensitive to the gender dimension of the epidemic • Gives women the right to refuse unprotected sexual relations, also within the marriage • Obligation to use male or female condoms

21. Innovative approaches • Zimbabwe: Patents Act, section 34, The Government declaration of a six-month “period of emergency (HIV/AIDS)” • Underpins specific labour laws on AIDS • Enabled the make and use of patented drugs for treatment of PLWHA • Enabled the import of generic drugs used in the treatment of PLWHA

22. What does this research say? • Regulatory framework and revision of labour laws needed • Need for harmonization of relevant laws is obvious • Legislation specifically on HIV and AIDS in the workplace needed(holistic) • The various labour court and constitutional cases –such as the South African Hoffmann decision – have had a strong positive influence on other judicial decisions • Stigma attached to the revelation of HIV status may impact on the forwarding of complaints • Good practice is demonstrated when a broad constitutional provision is backed up with a dedicated law on the subject that includes a Chapter or Division reflecting the specific needs of the world of work • Good practice is highlighted when various institutions work together to pool their strengths

23. Thank you Here’s the web link once again: www.ilo.org/public/ english/dialogue/ifpdial/downloads/ papers/digest.pdf