Stepping up the Pace on the Removal of Punitive Laws to Advance Human Rights and Gender Equality Presented By: Hon. Nana Oye Lithur Minister of Gender, Children and Social Protection, Ghana 4 DECEMBER 2015 HARARE, ZIMBABWE

OVERVIEW OF PRESENTATION · Legal provisions which undermine human rights and gender within the context of HIV and STIs Making a case for increasing efforts in decriminalization and respect for human rights and gender equality in the fight against HIV and STIs.

THE CONCEPT OF CRIMINALISATION Legal provisions undermining human rights and gender in the context of HIV and STI There are three core elements: Understanding offensive conduct Institutional authority to declare conduct offensive /punishment Penal consequences attached to offensive conduct

THE LEGAL REGIME Implementation of a country’s laws and policies plays a critical role in the national response. Protective legal environments improve the lives of people living with HIV, according to Global Commission on HIV and the Law’s 2012 report UN Member States adopted the ‘Political Declaration on HIV/AIDS’ in 2011, committing to reviewing national laws and practices that create barriers to effective HIV responses.

THE LEGAL REGIME Cont. Criminalisation occurs for:  non-consensual sex  transmission of HIV/AIDs  commercial sex work and soliciting  same-sex relations and sexual relations in close familial relations In Ghana, these are all criminalised under the Criminal Offences Act, 1960 (Act 29)

EVALUATION OF CRIMINALISATION LAWS Laws that punish sexual conduct have greater negative impact on persons who are either suffering from HIV and STIs or at risk of contracting HIV

MAPPING OF AFRICAN COUNTRIES WITH HIV ENACTED LAWS

26 African countries have overly broad and/ or vague HIV-specific criminal laws with other countries considering new HIV-specific criminal laws Definitions of ‘wilful transmission’ in Guinea, Guinea-Bissau, Mali and Niger are broad and could be applied to any kind of unprotected sexual contact

Ghana and HIV/AIDS laws Ghanaian criminal laws do not specifically address the transmission of HIV The National HIV/AIDS Policy indicates that the intentional transmission of the virus may be criminalised as a generic act of causing harm The law regarding the negligent transmission of the disease is less clear

ASSESSMENT OF GHANA LEGAL REGIMES IN RELATION TO HIV/AIDS Ghana has a draft HIV/AIDS Bill, currently before Parliament, an HIV/AIDs Policy, An HIV Strategic Plan and a MARPS Policy Bill will create an enabling environment for fighting HIV/AIDS

ASSESSMENT OF GHANA LEGAL REGIMES IN RELATION TO HIV/AIDS Ghana has a Key Population Policy Among other objectives the policy strives to educate the population about the causes, consequences and prevention of HIV/AIDS and other sexually transmitted diseases (STDs)

Human rights and Homosexuality Homosexuality abhorred as contrary to African traditional values and religion Globally, 40 percent of countries criminalize same-sex sexual relations Sub-Saharan Africa - every country has laws in place that criminalize at least one key population Source: IRIN Africa, Uganda.

South African Case Court Case on Access A new Section 15C was inserted into the South African Medicines and Related Substances Control Act (MRSCA) The primary purpose of this amendment was to enable South Africa to benefit from lower prices abroad for the same drugs

Amendment of the Penal Code for stiffer penalties for those charged with the offence of rape if they have HIV/AIDS Best Practices: Botswana

Senegal has succeeded in maintaining an HIV-prevalence rate of less than 1 % The country established the Programme National de Lutte contre le SIDA (National AIDS Program), 1986 under the Ministry of Health Best Practices: Senegal

National law and policy in many African countries may reflect the principles of gender equality de jure but Women’s and girls’ rights may lack actual protection de facto The Additional Protocol to the African Charter on Human and Peoples Rights provides a regional framework AFRICAN LEGAL REGIME ON GENDER EQUALITY

Gender Women’s and girls’ rights in the areas of rape, domestic violence, property and inheritance rights, right to education, economic empowerment not adequately protected. These rights linked up with custom and tradition AFRICAN LEGAL REGIME ON HUMAN RIGHTS PROTECTION

Gender Women and girls are at the greatest risk of gender- based violence, rape, incest and other forms of sexual abuse, more vulnerable to HIV/AIDs, more women HIV positive Situations of discrimination and negative perceptions of sex workers tend to push HIV- positive sex workers underground AFRICAN LEGAL REGIME ON HUMAN RIGHTS PROTECTION

Ghana and Gender The Government of Ghana is putting in place appropriate legal regime for mainstreaming of gender into socio- economic development Affirmative Action Bill Intestate Succession (30 years in existence)and Property Rights of Spouses Bills AFRICAN LEGAL REGIME ON HUMAN RIGHTS PROTECTION

South Africa, Rwanda and Ghana recognize rape in marriage as a crime. Research has shown that in numerous countries rape laws are generally very poorly enforced ANALYSIS OF SPECIFIC GENDER ISSUES IN AFRICA SEXUAL VIOLENCE

DOMESTIC VIOLENCE Domestic violence is poorly embodied in the law in most African countries with the exception of Senegal, South Africa and Zimbabwe In countries such as Kenya and Nigeria, there is no provision in the law to criminalize domestic violence ANALYSIS OF SPECIFIC GENDER ISSUES IN AFRICA Source: Africa On the Blog

Harmful Social Cultural Traditions Socio-cultural norms are some of the key issues that have rendered HIV prevention a challenge in most African cultures, e.g. widowhood-related rituals, sexual cleansing and female genital cutting SOCIAL AND CULTURAL CONSIDERATIONS TO HUMAN RIGHTS PROTECTION IN AFRICA

Marriage Gender inequality in marital relations, polygamy, especially in sexual decision-making, increases vulnerability to HIV transmission How can a married woman insist her husband uses a condom since he is having extra marital affairs? SOCIAL AND CULTURAL CONSIDERATIONS TO HUMAN RIGHTS PROTECTION IN AFRICA

Patriarchy Existing social systems in Africa which allows men to take primary responsibility and dominate in society and encourages multiple sexual partners for men inside and outside of marriage SOCIAL AND CULTURAL CONSIDERATIONS TO HUMAN RIGHTS PROTECTION IN AFRICA

Influencing Culture to Enhance HIV/AIDS Prevention Open dialogue with political traditional and religious leaders Influencing policies and legislation Place priority on community-based interventions SOCIAL AND CULTURAL CONSIDERATIONS TO HUMAN RIGHTS PROTECTION IN AFRICA

Harm Reduction Models Few countries in Sub- Saharan Africa include an explicit supportive reference to harm reduction in national policies on HIV or drug addiction Of the 158 countries reporting injecting drug use 91 of these include harm reduction in national policy TOWARDS A FRIENDLY LEGAL REGIME ON HIV AIDS

Needle and Syringe Exchange Programmes (NSPs) In 2014, 90 countries and territories implemented NSPs to varying degrees Kenya and Senegal have implemented NSPs since 2012 TOWARDS A FRIENDLY LEGAL REGIME ON HIV AIDS

Punitive laws in addressing HIV and STIs tend to do more harm than good The question remains how do we leverage our efforts towards decriminalisation of laws highlighted? Addressing Punitive Laws

Legal Reform Emphasis on Public Health and human rights depending on context Leverage efforts to repeal punitive laws - ADVOCACY Access to legal aid RECOMMENDATIONS Source: IRIN Africa, Kenya.

Address Gender inequality as a central element of the HIV/AIDS Response, Policy and programs Ensure women can claim their human rights free of coercion, discrimination, and violence RECOMMENDATIONS SPECIFIC ACTION POINTS Source: Ford Foundation.

Governments Must Conduct national legal audits of laws and initiate action to repeal, amend and or review laws to facilitate decriminalization of certain acts Institutions in charge of coordinating the national HIV/AIDS response must lead this advocacy process and present the hard evidence RECOMMENDATIONS SPECIFIC ACTION POINTS Cont.

Conclusion Criminalisation has done more harm than good in addressing HIV/AIDS and STIs Adopting a rights- based approach to addressing HIV / AIDS is the best approach. In certain national contexts, a public health approach is more pragmatic African countries must therefore commit to intensify national efforts to create enabling legal, social and policy frameworks to address HIV/AIDs