AIDS: OUR COURTS AND AFRICAN GOVERNMENTS

INTRODUCTION

The world is still being ravaged by the AIDS epidemic. Tears are constantly flowing for those we have lost and those living with HIV/AIDS. Hopefully someday the Red Ribbon and AIDS will be just a memory but until then we must remember and raise awareness about the myths and facts of the epidemic and the year 2008 World Aids Day is a perfect opportunity to do so.

As the World AIDS day 2008 approaches with the main theme “Leadership” for 2007 and 2008 with the slogan “Stop AIDS: Keep the Promise” for World AIDS day observances through 2010, I am using this opportunity to raise awareness of HIV/AIDS by highlighting the history and other salient issues that affect the fight against HIV/AIDS especially in Africa and in Nigeria in particular factoring in the role of the judiciary in the process as one of the things I can do to support the World AIDS day as prescribed by the World AIDS Campaign which took over the responsibility from the UNAIDS in 2005.

The tagline Leadership encourages leaders at all levels to stop AIDS. Building on the 2006 theme of Accountability, leadership highlights the discrepancy between the commitments that have been made to halt the spread of AIDS, and actions taken to follow them through. Leadership empowers everyone – individuals, organisations, governments – to lead in the response to AIDS.

HISTORY

The pandemic known as HIV/AIDS has decimated whole African villages especially in East and Central Africa since it came to the limelight in the early 1980s even though there are shards of evidence that tend to show that diagnoses or deaths from HIV/AIDS may have been recorded in 1959 in the Congo and in 1969 when a young American died in St. Louis and again in 1976 when a Norwegian sailor died of the same ailment. Not much of this disease was known in the 1970’s which has appropriately been dubbed the decade of silence, nothing was done and the disease spread as many more people got infected. Some scientists even believe that HIV (the virus that causes AIDS) probably transferred to human’s in Africa around 1930 and that HIV probably entered the American subcontinent through Haiti around 1966 when some infected immigrant from the Congolese war emigrated to Haiti.

HIV may have entered the US through Haiti around 1970, when African doctors began to see in opportunistic infections and wasting whilst western scientists and doctors remain ignorant of the growing epidemic. By 1981 AIDS was detected in California and New York and the first cases were among gaymen and then injecting drug users. In 1981 AIDS was reported among haemophiliacs and Haitians in the USA and in several European countries. The name “AIDS” – Acquired Immune Deficiency Syndrome – is created and community organisations in the USA and the UK began to promote safer sex among gay men who were infected in large numbers at this time.

The year 1983 was a turning point and alarm bells began to ring as AIDS is reported among non - drug using women and children. As a result, experts became more confident that the cause of AIDS is infectious. Three thousand AIDS cases had been reported in the USA and one thousand had died.

In 1984, scientists identified HIV (initially called HTLV – III or LAV) as the cause of AIDS and Western scientists became aware that AIDS was widespread in parts of Africa. In 1985, an HIV test is licensed for screening blood supplies even as AIDS was found in China, and has therefore been seen in all parts of the world.

By 1986 AIDS had become a global phenomenon and the seriousness of the pandemic began to dawn even on the pessimistic as more than 38, 000 cases of AIDS was reported from more than 85 countries. Uganda, one African country where the disease was rife began promoting sexual behaviour change in response to the AIDS pandemic. A year later, AZT became the first drug approved for the treatment of the disease and the UK and other countries increasingly acted to raise awareness of AIDS. In 1988, the American government conducted a national AIDS education campaign. Health ministers from around the world met to discuss and establish a world AIDS day.

Despite these initiatives, the infection rate grew scandalously such that by 1990, an estimated 8 million people were living with HIV worldwide, an astronomical increase from 38, 000 reported worldwide just four years earlier in 1986.

However in 1993, an unpalatable dimension was introduced into the AIDS saga when the approved AZT by the west is shown to be of no benefit to those in the early stages of HIV infection, infact some have contended and even litigated the issue that AZT accelerated the onset of AIDS in HIV patients. It is equally worthy of note that in 1994 AZT was shown to reduce the risk of mother – to – child transmission of HIV in another study and infant HIV infections began to fall in developed countries, due to the use of AZT, it was claimed.

In 1995, it came to be realized that anything short of a concerted global effort will not save mankind from the scourge of this dreaded disease. The UN and other regional bodies began to take note and this led to the birth of the joint United Nations Programme on AIDS (UNAIDS) in 1995.

Between 1996 and the year 2000, supposed progress was made as a combination of antiretroviral treatment is shown to be highly effective against HIV. In developed countries, many people began taking the new treatment. AIDS deaths began to decline in developed countries, due to the new drugs. Brazil became the first developing country to begin providing free combination treatment. In other developing countries, only a tiny minority could access treatment for HIV. Annual global spending on AIDS in low – and middle – income countries was $ 300, 000,000.00 (Three Hundred Million Dollars).

Notwithstanding these concerted efforts, it is a sad commentary on the state of affairs and the race to rein in HIV/AIDS that at the turn of the century, in the year 2000, an estimated 30 million people were living with HIV worldwide.

The efforts has however continued and in 2001 at a UN special session, world leaders set long-term targets on HIV/AIDS and in 2002, the Global Fund was established to boost the response to AIDS, TB and Malaria and at about the same time Botswana began Africa’s first national AIDS treatment programme. By the year 2003 AIDS drugs became more affordable for developing countries as the “3 by 5” campaign is launched to widen access to AIDS treatment but the first AIDS vaccine to undergo a major trial is found to be ineffective.

In 2004, the US launched a major initiative called PEPFAR to combat AIDS worldwide. The statistics continued to be grim and the reality alarming. By 2005, an estimated 40 million people were living with HIV, 10 million more from five years earlier, including 25 million Africans and more that 21 million people had died of the dreaded disease since 1981. Today 28% of people in developing countries who need treatment for HIV are receiving it. Annual global spending on AIDS in low – and middle – income countries has risen to $ 1.8 billion dollars. It is estimated that $ 14.9 billion dollars would be needed for a truly effective response.

AIDS AND AFRICAN GOVERNMENTS

I have recounted the history of the pandemic since it became widely known but the interesting thing is that whilst the earliest known cases were recorded in the west, the reality today is that the poor continent of Africa is the one which has become mostly affected. Of the estimated 40 million people living with HIV worldwide, 25 million of them live in Africa. In Africa, the disease kills by the hundreds everyday, Children are made orphans, parents lose loved ones, the youth who is the driver of any economy and a beacon of hope for the future is being cut down in his prime by the disease. By the sheer force of nature, he is most sexually active and sex remains the principal avenue by which the disease may be contracted and in the same vein, he is the one likely to inject drugs to spice up his system.

In all this, what is our government doing to check this disease and buck the trend. African governments say they do not have the resources to fight the disease effectively, there are no funds to spend on research, there is no vaccine in sight and the prospects of getting one soon is bleak, most of Africa’s poor cannot afford antiretroviral drugs and Thabo Mbeki added a curious dimension to the debate when he questioned the utility of antiretroviral drugs and the legal battle that ensued between the Government of South Africa and the big multinational pharmaceuticals which will not make the drugs cheap and freely available did the cause no good. Apart from these and ill coordinated awareness campaigns and some workshops/seminars with discussions thrown into the mix for good measure at bilateral, multilateral and regional levels, there is no clear cut initiative and strategy on the part of African governments to fight the disease.

African governments may well not have the resources, but if the sleaze, waste and corruption that permeates most of its countries national life is halved by two and the resources thereby released dedicated to fighting the scourge of HIV/AIDS and other killer diseases such as malaria and TB on the continent, the day may not be far off when the continent will need no aid donor to fight disease. Even with the lean resources, Africa does not spend a fraction of what it expends on arms on the fight against disease. From Abuja to Pretoria, Abidjan to Kinshasa, Dafur to Kampala, Rabat to Mogadishu, the entire continent is mired in crisis. Infact, it has being stumbling from one war to the other and the wars are increasing in intensity. Witness the unspeakable human tragedy unfolding in Dafur today, Mogadishu has remained ungovernable since 1992 and other flashpoints are emerging by the day, the Niger delta region of Nigeria for example, the decades long resistance in Uganda is gathering momentum, hitherto stable Cote d Voire is teetering on the edge of collapse. Too much innocent blood has been shed all over the continent since 1960. There is hardly any African country that has not witnessed war of one kind or the other. Any wonder then the continent is a rife dumping ground of caches of small arms? That Dafur is happening before our very eyes, a mere decade after Rwanda is proof that the specie of human beings that inhabit this part of the world will never learn. Whatever happened to the “NEVER AGAIN” resolve after Rwanda?

If our governments will not fight the disease, how on earth are they going to confront and handle the social, economic and political issues that are a consequential fall out of contracting the disease? In other words, what has our governments done about the human rights of persons living with HIV/AIDS (PLWHA)? PLWHA have had to face difficult challenges in the course of their everyday life, they face discrimination, and they are stigmatized thereby aggravating the impact of the disease on them and on the society in several ways.

CONSTITUTIONAL PROVISIONS AND INTERNATIONAL HUMAN RIGHTS INSTRUMENTS

Good a thing, it has become accepted that for the epidemic to be curbed, the human rights of PLWHA must be respected and protected in the society. PLWHA are human beings and as such they are entitled to the basic rights which every person is entitled to. All the rights guaranteed by the 1999 Constitution of the Federal Republic of Nigeria are as a matter of course guaranteed to PLWHA.

There are some international and regional human right instruments which are important in protecting the right of PLWHA. Some of these instruments are:

(i) International Guideline on HIV/AIDS and Human Rights.

(ii) The International Covenant on Economic, Social and Cultural Rights (ICESCR).

(iii) The International Covenant on Civil and Political Rights (ICCPR).

(iv) The convention on Elimination of all Forms of Racial Discrimination.

(v) The Convention on Elimination of all Forms of Discrimination Against Women (CEDAW).

(vi) The Convention on the Rights of the Child.

(vii) The Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment.

(viii) The African Charter on Human and Peoples’ Rights (ACHPR).

(ix) Various International Labour Organisations Conventions and Recommendations.

As laudable as the Constitutional provisions and the international and regional human rights instruments are, they are observed more in the breach in many countries. Nigeria for example has ratified most of the international instruments and copiously provides for the protection of fundamental human rights in Chapter IV of the Constitution but the reality is that in Nigeria PLWHA are openly discriminated against and stigmatised in the work place, place of education, in employment, in prison, in healthcare and even in the home that should otherwise be a shield and a fortress for PLWHA. It has been reported that a High Court Judge in Nigeria once ruled that a plaintiff, who had tested positive to HIV could only be allowed into the court room to give evidence if a medical expert satisfied the court that her presence will not endanger the lives of other people in the court room. What an unbelievable ignorance on the part of an elite judge. Recently, it took the intervention of the Ministry of Education to stop a private University in Nigeria which insisted on an HIV test as a prerequisite for enrolling in the University.

THE GREAT GOOD OUR COURTS CAN DO

In a country like Nigeria, where discrimination is widespread as a result of socio – cultural factors and unfounded prejudices, it is imperative that the law courts should brace up and be in the vanguard of the protection of the human rights of PLWHA as has been done in other jurisdictions. A few examples of the proactive role the courts have played in other jurisdictions may suffice here.

On May 10, 2000 in N v. Minister of Defence (Case No. 1LC 24/98), a Namibian court ruled that the Namibian Defence Force (NDF) was guilty of unfair discrimination for refusing to enlist a man solely on the basis of his HIV status. In Hammel/Malaxos (25 November 1993, No. 73032000370929), a Canadian court found that the defendant (a Dentist) in refusing to treat the plaintiff because he was seropositive, had committed a discriminatory act contrary to the Quebec Charter of Human Rights and Freedom, and awarded the plaintiff $ 1,000.00 in damages.

In Pacific Western Airlines Ltd. v. Canadian Airline Flight Attendants Association (1987) 28 L.A.C (3d) 291 (Can. Arb. Bd.), the court found that the employers conduct was wrongfully discriminatory: dismissing an employee from his job solely on the basis of his HIV status is unjustified. A case that coincidentally and interestingly answers the Nigerian judge is the Florida case of Peacock (In the matter of), 59 B.R 568 (Banker S.D. Fla. 1986) where the issue arose whether the fact that a person is HIV positive will require special precautions against contagion to be taken in the court room. The court emphatically answered no stating that no special precautions need be taken reasoning that HIV is not spread by casual contact, so there is no need for precautions to be taken in the court room.

The Arbitrator in Centre d’ Accueil Sainte – Domitille v. Union des employes de Service, local 298 (F.T.Q.) (1989) T.A. 439 (Tribunal d’ Arbitrage) held that an employer does not have the right to require a medical examination where the purpose is merely to obtain evidence that the employee is HIV seropositive.

On 1, August, 2000, a Venezuelan court ordered the Universidad Pedagogica Experimental Libertadore (UPEL), a powerful, sprawling Government subsidized University with eight main campuses and twenty other units throughout the country, to stop requiring an HIV test for admission. A timely wake up call for the private university that recently attempted same in Nigeria.

In Davis v. Walker, U.S.D.C. N.D. Alabama, AIDS Litigation Reporter 12/28/87 (opinion) the issue was considered whether a Sheriff’s failure to test all in - coming inmates for HIV violated the plaintiffs civil rights. The court held that the failure to test did not violate the plaintiff’s civil rights. The court also determined that the sheriff’s decision was reasonable based on the manner in which the infection is spread. Given that the known routes to transmission required participating in conduct prohibited within the prison system, the court found that the sheriff could properly eschew screening and testing each inmate in favour of stringent enforcement of rules against homosexuality and intravenous drug use in the jail.

In Ter Neuzen v. Korn (1992) 3 W.W.R. 469 (BC Supreme Court), The plaintiff patient alleged that she had been infected with HIV during an artificial insemination procedure in January 1985 and that the infection was due to negligence on the part of the defendant gynecologist who performed the procedure. On 20 November 1991, a BC Supreme Court jury found the gynecologist liable and assessed damages of almost $900,000.00 (Nine Hundred Thousand Dollars) though the case went on appeal.

Again in Pittman v The Canadian Red Cross Society (1994) O.J. No. 463, the Ontario court of justice awarded the estate of a man who died of complications from AIDS as a result of “tainted blood”, his widow and four children the sum of $515,075 in compensation for the tainted blood received by the deceased in 1984.

In R v Wentzell, File No. C.R. 10888 (December 8, 1999, N.S. Co. Ct.), Wentzell pleaded guilty to criminal negligence causing bodily harm. He knew of his infection and had been advised not to have unprotected sex. The court invoked the principle of deterrence and Wentzell was sentenced to three years imprisonment with a recommendation that he receive all necessary treatment and counseling. In Venter v Nel 1997 4 SA 1014 (D), the court granted the plaintiff damages in the amount of R 344,399,06 on the ground that the defendant had infected her with HIV during sexual intercourse. Damages were granted for future medical expenses as well as for the possibility of a reduction in life expectancy, psychological stress, pain and suffering.

In Applicant v Administrator, Transvaal and Others, 1993 (4) SA 733, the court ordered that the “Applicant” receive the medication (Gancyclovir) that was initially promised to him by a provincial hospital which had prescribed the drug along with preparing the patient for its administration upon its reneging because of the cost of the drugs. Similarly in Biljon and Others v Minister of Correctional Services and Others, CPD, 1997. Unreported 117778/96, the court awarded Applicants (2 of 4) access to anti – retroviral therapy (ARV) after the court dismissed the prison authorities’ argument of budgetary constraints as a reason for not providing ARV.

CONCLUSION

These examples show the good the court can do in the cause of the eradication of HIV/AIDS and in the protection of PLWHA and the health and larger interests of society. Our courts have not yet been faced with these issues, we hope that when the time comes as it definitely will the court can learn a few things from these examples from abroad.

As for African governments, we noted earlier, the statistics and the consequences for Africa are grim; our governments must as a matter of priority start doing the right things if the Millennium development goals and ambitious economic targets (such as Nigeria’s Vision 2020) across the continent must be met. What can be more important than securing the future of our Children? If our governments see no reason to act fast, I will supply one and it is simple “the last child to be cured or protected against HIV/AIDS will probably be an African child”.

STEPHEN O. OBAJAJA is a partner in the Lagos law firm of Fountain Court Partners.

STEPHEN O. OBAJAJA

Fountain Court Partners

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