HAKI ZA BINADAMU NA UKIMWI

Kwa wanaojua kimombo hebu tukumbushane kidoogo juu ya historia ya Haki za Binadamu na UKIMWI.

HUMAN RIGHTS AND HIV/AIDS

History of the recognition of the importance of human rights in the context of HIV.The World Health Organization held an international consultation on health legislation and Ethics in the field of HIV/AIDS in April 1988 at Oslo. It advocated bringing down barriers between people who were infected and those who were not infected and placing actual barriers (e.g. condoms) between individuals and the virus. On 1988, 13 may, the World Health Assembly passed resolution WHA 41.24 entitled ‘Avoidance of discrimination in relation to HIV infected people and people with HIV/AIDS’ which underlined how vital respect for human rights was for the success of national AIDS prevention and control programmes and urged member state to avoid discriminatory action in the provision of services, employment, and travel.In July 1989, the first international consultation on AIDS and Human rights was organized by the United Nation Centre for Human Rights in cooperation with the WHO/GPA.The report of the consultation highlighted the human rights issues raised in the context of HIV/AIDS and proposed the elaboration of guidelines.United Nation Commission on Human Rights at its annual services since 1990 has also adopted numerous resolution on Human Rights and HIV which among other thing, confirm that discrimination on the basis of HIV/AIDS status, actual or presumed is prohibited by existing international human rights standards and clarify that the term or other status used in non discrimination clauses of such text should be interpreted to include health status such as HIV/AIDS.Numerous Charters and declarations which specifically or generally recognized the Human Rights of PLHA have been adopted at national and international conference and meetings among them are Declaration of the Rights of People with HIV/ and AIDS UK.1991, Paris Declaration, World Summit, and Charter on HIV and AIDS 1992, South Africa AIDS Consortium Charter on Rights on HIV, 1 December 1992 and others. Human Rights provides a legal framework within which national laws, policies, and services can be formulated and assessed as well as an approach to design of policy and programmes. It is incumbent upon the government worldwide to translate their international commitment to rights of PLHA into national laws and policies that promote and ensure the basic rights to people living with HIV/AIDS.Discrimination against PLHA remain pervasive it is essential to have supportive laws, policies and programmes that prevent and mitigate violence, stigma and discrimination and that promote gender equality, human rights and social justice. Laws and policies on non discrimination should specifically mention HIV/AIDS. National policies and laws on HIV/AIDS stigma and discrimination:In general the constitutional of United Republic of Tanzania 1977 provide for protection of rights for PLHA.But in specific terms, there appear not to be any legislation that directly targets PLHA rights. It has to be noted that Tanzania was part of the Nation that issues Declaration of Commitment of the United Nations General Assembly Special Session on AIDS (UNGASS) that carry clauses some of which directly promote and protect PLHA rights.Other than laws, there are policies that guide development in the country and which can potentially fuel or arrest HIV/AIDS related stigma and discrimination. Below are the strength and limitation of policies and laws in as far as they promote the rights of those infected and affect by HIV/AIDS.Community development policy 1996The aim of this policy is to place the ordinary member of the community (and the family as the smallest unit of the community) at the centre of development. The policy provides full participation of community member to the development activities. One of its focus is responding to and meeting the needs of special groups of women, children and youth in order to reduce their workload strengthen family income generation project and enable them to participate in decision making and ownership of family property. It is marginally the policy address the concern of persons infected and affected by HIV/AIDS.However, in the policy there is no mention of HIV/AIDS anywhere in the policy document, since AIDS is recognized development issue. It is understandable that whereas AIDS was already reported in Tanzania, at the time of drafting the policy. The Tanzania government had not yet evolved a solid response to HIV and AIDS as is the case today. Now the policy need to be revised to incorporate HIV/AIDS, which will insure that PLHA rights to actively participate in development is restored and protected.The Constitution of United Republic of Tanzania 1977.Part III of the Constitution of the United Republic of Tanzania provides in Article 12-24 basic rights of every citizen. The constitution makes a very pronouncement on any form of discrimination in article 12(2) which states that ´´no law enacted by any authority in the united shall make any provision that is discriminatory either of itself or in its effect``. Again in Article 12(4) ´´no person shall be discriminated against by any person or any authority acting under any law or in the discharge of the function or business of any state office``.Discrimination is explained in article 13(5) as a means to satisfy the needs, rights or other requirements of different persons on the basis of their nationality, tribe, place of origin, political opinion, color, religion or station in life such that certain categories of people are treated differently or are accorded opportunities or advantages outside the specified conditions or the prescribed necessary qualification. Not withstanding Article 12(2), in absence of a reference to condition of health the word´´station in life`` which is contained in the above definition may also refer to the condition of being a PLHA.Constitution also further provides for equality before the law in Article 13, the right to life in Article 14, individual freedom in Article 15 and privacy in Article 16.Constitution also provides for freedom of movement in Article 17 and in Article 18-19 provides for the right to work. It is clear therefore that the constitution carries general clauses that can be applied in the protection of the right of PLHA.However, as it is the case in most developing countries, people’s awareness and knowledge of the policy and legal frameworks are quite limited to the extent that even parties that are aggrieved cannot easily seek redress.The attainment of just and human society requires that all individual and organization both respect human rights and dignity and observe those principle of humanity which reflects Universal human values shared by religion and cultures throughout the world.Respect for the rights to life and to the highest attainable standards of health and for the principle of non-discrimination requires state to ensure that all sectors of society receive appropriate information and education on HIV/AIDS and that particular attention is paid to reaching people in remote location and members of disadvantaged groups.Segregation, isolation or quarantine of persons in prison, schools, hospitals or elsewhere merely on the ground of HIV/AIDS is unacceptable.The national Multi-Sectoral Strategic Framework on HIV/AIDS 2003-2007(NMSSF) The NMSSF operationalizes the national HIV/AIDS (2001). As Tanzania is a signatory to the millennium development goals of (2000) and participated in issuing the UNGASS Declaration of commitment, the NMSSF is in line with the two international commitments to development and management of HIV/AIDS respectively.In its third and fourth areas, the NMSSF provides for care and support and mitigation of social and economic impact of HIV/AIDS. The NMSSF considers stigma and discrimination as some of the cross cutting AIDS issues. The policy recognizes that the rights against AIDS are an integral part of the efforts aimed at eradicating poverty. Such commitment at policy level ensures that participation of PLHA in development is guaranteed. Provision for the mitigation of the economic impact also ensures that PLHA have a guarantee means of livelihood and that their right to continued employment as long as is possible is also guaranteed.5:3 Awareness of National Policies and Laws on Stigma and Discrimination. Lack of awareness of the national policies and laws on HIV/AIDS related stigma and discrimination is one of the weaknesses of these policies and propagates marginalization of PLHA. In Biharamulo District the awareness of policies and laws on PLHA rights is much lower, with only a few participants and being able to mention some of the PLHA rights.5:4 Enforcement of Policies and Laws on stigma and Discrimination.It is difficult if not possible to enforce rights and laws that one is hardly aware of and among a population with little awareness and knowledge of the laws supposed to be enforced. Ideally before enforcement, there should be awareness raising and public education of the right of PLHA.Available literature suggest that a right-respecting climate encourages voluntary testing, counseling, education, treatment and disclose about HIV, all measure necessary to stop the epidemic. A repressive measure on the other hand, stigmatized people with HIV and population at risk and perpetuates discrimination against them.The failure to protect human rights of people infected with HIV encourages secrecy about HIV, driving high-risk populations underground away from education, testing and counseling services, where HIV will be unknowingly spread.5:5:The application of specific human rights in the context of the HIV epidemic.-Non discrimination and equality before the lawThe Constitution of United Republic of Tanzania 1977 guarantee the right of non discrimination and equality before the law.Artical 13(1) state all person are equal before the law and entitled without any discrimination to protection and equality before the law. Also 13(2) state that no law enacted by any authority in the United Republic shall make any provision that is discriminatory either of itself or in its effect.However, International Human Rights Law guarantee the rights to equal protection before the law and freedom from discrimination on any ground such as race, colour, sex, language, religion, political, or other opinion, national or social origin, property, birth, or other status. Discrimination on any of the ground is not only wrong in itself but also creates and sustains conditions leading to societal vulnerability to infection by HIV including lack of access to enabling environment that will promote behavioral change and enable people to coupe with HIV. Groups suffering from discrimination, which also disable them in the context of HIV, are women, children, those living in poverty, minorities, indigeneous people, migrants, refugees and internally, displaced person, people with disability, prisoners, sex workers, and infected drug users. Response to the state should include the implementation of laws and policies to eliminate discrimination including where it occur against these groups.-Human Rights of women. Discrimination against women, de facto and de jure, renders them disproportionately vulnerable to HIV/AIDS. Women subordination in the family and in public life is one of the root causes of the rapidly increasing rates of infection among women. Systematic discrimination based on gender also impair women’s ability to deal with the consequences of their own infection and or infection in the family in social, economic and personal terms with regards to prevention of infection the rights of women and girls to the highest attainable standards of physical and mental health, to education to freedom of expression, to freely applied to include equal access to HIV related information, education, means of prevention and health services. Even such information are available women’s and girls are often unable to negotiate sex or to avoid HIV related consequences of the sexual practices of their husbands or partners as a result of social and sexual subordination, economic dependence on a relationship and cultural attitudes. The protection of sexual and reproduction rights of women and girls is therefore critical. This includes the rights of women to have control over and to decide freely and responsibility, free to coercion, discrimination and violence, on matters related to their sexuality including sexual and reproductive health.In order to empower women to leave relationship or employment which threaten them with HIV infection and to coupe if they or their family members are infected with HIV, state should ensure women’s rights to inter alia legal capacity and equality within the family in matters such as divorce, inheritance, child custody, property and employment rights in particular, equal remuneration of men and women for work of equal value.HIV prevention and care for women are often undermined by pervasive misconceptions about HIV transmission and epidemiology. There is a tendency to stigmatized women as vectors of disease irrespective of the sources of infection as a result women who are or are perceived to be HIV positive face violence and discrimination in both public and in private life.Convention (CEDAW) obliges states parties to address all aspects of gender based discrimination in law, policy and practice. States are also required to take appropriate measures to modify social and cultural patterns which are based on ideas of superiority or inferiority and stereotyped rules for men and women.-Human Rights of ChildrenThe rights to children are protected by all international human rights, instruments and in particular under the convention on the rights of the child which established an international definition of the child as every human being below the age of 18 years unless under the law applicable to the child, majority is attained earlier.The convention reaffirms that children are entitled to many of the rights that protect that of adult.(e.g. rights to life, non-discrimination, integrity of the person, liberty and security, privacy, expression, association and assembly, education and health. Many of these rights are relevant to HIV infection, care and support for children, such as freedom from trafficking, prostitution, sexual exploitation and sexual abuse since since sexual violence against children among other thing increase their vulnerability to HIV/AIDS. Under the convention the rights to non-discrimination and privacy for children living with HIV and finally the rights of children to the actors in their own development and to express opinion and have them taken into account in making decision about their lives should empower children to be involved in the design and implementation of HIV related programmes for children.-Right to privacy.

The constitution of United Republic of Tanzania 1977 state inter alia under Article 16(1) that every person to respect and protection of his person, the privacy of his own person, his family and of his matrimonial life, and respect and protection of his residence and private communication. Article 17 of the International Covenant on Civil and Political Rights provide that no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, or to unlawful attacks on his honor and reputation. Every one has the rights to the protection of the law against such interference or attacks.

The rights to privacy encompasses obligation to respect physical privacy, including the obligations to seeks informed consent to HIV testing and privacy information including the need to respect confidentiality of all information relating to persons HIV status. The duty of the state to protect the right of privacy therefore include obligation to guarantee that adequate safeguard are in place to ensure that no testing occur without informed consent , that confidentiality is protected particularly in health and social welfare settings, and that information on HIV status is not disclosed to third party without the consent of the individual. -Right to liberty of movement.Article 17(1) of the Constitution of United Republic of Tanzania 1977 provide the rights of freedom of movement by stating that every citizen of United Republic of Tanzania has the rights to freedom of movement in the United Republic and the right to live any part of the United Republic, to leave and enter the country and the right not to be orced to leave or be expelled from the United Republic.

The rights to liberty of movement encompasses the right to every one lawful within a territory of a state to liberty of movement within that state to liberty of movement within that state and the freedom to disclose his or her residence as well as the right of nationals to enter and leave their own country. There is no public health rationale for restricting liberty of movement or choice of residence on the ground of HIV status.According to current International health regulation the only disease which requires a certificate for international travel is yellow fever. Therefore any restriction on these rights based on suspected or real HIV status alone including HIV screening of international travelers are Discriminatory and cannot be justified by public health concern.-Right to liberty and security of person.Article 9 of the International Covenant on Civil and Political Rights provide that every one has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived his liberty except on such grounds and in accordance with such procedure as are established by law. These rights should never be arbitrary interfered with, based merely on HIV status by using measures such as quarantine, detention in special areas, or isolation. No public health justification for such deprivation of liberty. -Right to education.Article 26 of the Universal Declaration of Human Rights state that, everyone has the right to education……Education shall be directed to the full development of human personality and to the strengthening of respect for human rights and fundamental freedom. It shall promote understanding, tolerance, and friendship…..This right includes three broad components which apply in the context of HIV/AIDS.

Firstly, both children and adults have the right to receive HIV related education, particularly regarding prevention and care. Access to education concerning HIV is an essential life saving components of effective prevention and care programs. It is a state obligation to ensure that in every cultural and religious tradition that appropriate means are found so that effective HIV information is included in education programs inside and outside schools.Secondly, state should ensure that both children and adult living with HIV are not discriminated denied access to education, including access to schools, universities, scholarship, and international education or subject to restriction because of their HIV stutas.There is no public health rationale for such measures since there is no risk of transmitting HIV casually in education settings. Thirdly, state should through education, promote, understanding, respect, tolerance and non discrimination in relation to PLHA.-Right to participate in political and cultural life.Realization of the right to take part in the conduct of public affairs as well as in cultural life is essential to guaranteeing participation by those most affected by HIV in the development and implementation of HIV related policies and programmes. These human rights are reinforced by the principle of participatory democracy; this assumes the involvement of PLHA and their families, women, children and groups vulnerable to HIV in designing and implementing programs that will be most effective by being tailored to the specific needs of these groups. It is essential that PLHA remain fully integrated in the political, economic, social and cultural aspects of community life.PLHA have the right to their cultural identity and to various forms of creativity, both as a means of artistic, expression and as a therapeutic activity.-Right to an adequate standard of living and social security services. Article 26 the Universal Declaration of Human Rights 1948 state that, Everyone has the right to a standard of living adequate for the health and well being of himself and his family, including food, clothing, housing, and medical care, and necessary social services, and the right to security in the event of employment, sickness, disability, widowhood, old age, or other lack of livelihood in circumstances beyond his control.Enjoyment of the rights to an adequate standard of living is essential to reduce vulnerability to the risk and consequences of HIV infection. It is particularly relevant to meeting the needs of PLHA and or their families, who have become impoverished by HIV/AIDS as a result of increased morbidity due to AIDS and or discrimination which can result in unemployment, homelessness, and poverty. If state introduce priority ranking to those services for resources allocation purpose, then PLHA and person with comparable conditions and disabilities should qualify for preferential treatment due to their dire circumstances.State should take step to ensure that PLHA are not discriminatory denied an adequate standards of living and or social security and support services on the basis of their health status.-Right to workArticle 22(1) of the Constitution of United Republic of Tanzania provides that Every one has the right to work. Sub article 2 provides that every citizen is entitled equal opportunity and right on equal terms to hold any office or discharge any function under the state authority.Every one has the right to work ….and to just and favorable condition of work. The right to work entitles the right of every person to access to employment without any precondition except the necessary occupational qualification.This right is violated when one an applicant or employee is required to undergo mandatory testing of HIV and is refused employment or dismissed or refused access to employee benefits on the ground of a positive result.State should ensure that PLHA are allowed to work as long as they can carry out the function of the job. State obligation to prevent all forms of discrimination in the workplaces including on the ground of HIV, should extend to the private sectors.As part of favorable condition of work all employee have the right to safe and healthy working condition.-Freedom from Cruel, Inhuman, or Degrading treatment or Punishment. This right can rise in variety of ways in the context of HIV for example in treatment of prisoners.Imprisonment is punishment by deprivation of liberty but should not result in the loss of human rights or diginity.In particular state, through prison authority owes a duty of care to prisoners, including the duty to protect the right to life and to health of all prisoners in custody. Denial to prisoners of access to HIV related information, education and means of prevention (condoms, clean infection equipments), voluntary testing and counseling, confidentiality, and HIV related health care and access to voluntary participation in treatment trials could constitute cruel, inhuman or degrading treatment or punishment.The duty of care also comprises a duty to combat prison rape and other forms of sexual victimization which may result in HIV transmission. Human rights based approach to programming are key to the successful scaling up the response to HIV/AIDS. Human rights can be used to support more effective HIV/AIDS interventions. Central to a human rights based approach to HIV/AIDS are the principle of non-discrimination, equality and participation. Each is relevant to the strategies and approaches to reduce the risk, vulnerability and impact of HIV/AIDS on individual and population.