HIV/AIDS Pandemic in Tanzania: Situational Analysis in Human Rights and Legal Perspectives.
A Paper Presented During the World Aids Day at Ubungo Plaza Hotel, 29th, November, 2010
Theme of the Day: Universal Access and Human Rights
“Lights of Rights”
BY ONESMO OLENGURUMWA
“It is imperative to remember that for the growing number of people worldwide who lack access to adequate health care, as well as to the basic needs for health and well being, those advances lack meaning; HIV remains a death sentence.” Professor Priscilla Wald
Fundamental social rights, including the right to education, health services, clean water and other essential elements, are paramount to fully enjoy other human rights, including the right to life and the right to development. Like other rights, social rights are also guaranteed by the International Covenant on Economic, Social and Cultural Rights of 1966, which was ratified by Tanzania in 1976. This paper reports the level of implementation of health right HIV/AIDS in particular, focusing on legal protection and challenges, with the view of making positive suggestions for change.
HIV/AIDS takes the lives of millions of people every year, making it one of the most destructive pandemics in history. Since the emergence of AIDS as a major health emergency, the epidemic has had a serious and, in many places, devastating effect on human rights and development. In Tanzania, HIV/AIDS has caused an increase in orphaned children, the breaking of families and marriages, a rise in poverty and the disappearance of much of the labour force. HIV/AIDS has a devastating effect, especially in developing countries.
There are many human rights issues related to HIV/AIDS, including legal protection, gender-based violence, marital rape, the right to life, the right to health, the right to work, rights of minority and vulnerable groups. My paper will concentrate on some of the key human rights issues mentioned above and legal protection at National level. This paper will specifically address human rights and legal issues visa vies situational analysis from the ground. The promotion and legal protection of human rights is an essential part of curbing the transmission of HIV and reducing the impact of AIDS on people’s lives.
The review made by the African Peer Review Mechanism (APRM) technical assessment team argues that social services began to decline after economic crises in the 1980s. To revamp the status of social services in the country, various development strategies were put in place after 2000. These included the Development Vision 2025 policy, Poverty Reduction Strategy (PRS) and later MKUKUTA . These strategies are critical for the more effective provision of social servirces, especially health, education, water and HIV/AIDS control and treatment.
2.0 HIV/AIDS Legal Regime and Challenges
HIV/AIDS as global pandemic has attracted attention of international and national concern. Since the eruption of this deadly disease there are issues of human rights that have been associated with HIV/AIDS infection such as stigmatization, discrimination in employment, in decision making and right to health and social and legal guarantees. In response of these human rights issues under international arena there are number of international legal instrument which respond to the general protection on HIV/AIDS victims.
It includes the following, The Declaration of Commitment on HIV/AIDS (Global Crisis – Global Action); The United Nations Millennium Development Goals (MDGs),The General Comment 14 of the Committee on Economic, Social and Cultural Rights, The Commission on Human Rights Resolutions on the Right to the Highest attainable Standard of Health and An ILO Code of Practiceon HIV/AIDS and the world of work of 2001.
The International Guidelines on HIV/AIDS and Human Rights, 2006 Consolidated Version – UNAIDS and OHCHR confirm the relationship between HIV/AIDS and human rights. It states that, the relationship between the two is profound because the vulnerability due to HIV infection and its impact feeds on violations of human rights, including discrimination against women and violations which create and sustain poverty. In turn, HIV begets human rights violations, such as further discrimination, and violence. The LHRC most recent surveys and other studies and other studies including he Tanzania Women Lawyers Association (TAWLA), 2003 report recognized that Tanzania is characterized by a pluralistic legal system which result into a set of laws like , Islamic Law, Hindu Law, and customary which still pose challenges to effort taken to address HIV-AIDS pandemic in Tanzania.
2.1 Constitution of the United Republic of Tanzania of 1977
The right to health is crucial because it is part and parcel of the right to life, the Constitution of the United Republic of Tanzania of 1977 does not recognize it as one of the fundamental and positive right. However, states have obligation under international human rights instruments to recognize and protect it and ensure availability of physical and mental health to their people, adequate health and medical care for all.
Article 12 of the Bill of Rights enshrined in the Constitution recognizes the principle of equality of all human beings and equality before the law as stipulated in hereinbelow;
12.- (1) All human beings are born free, and are all equal. (2) Every person is entitled to recognition and respect for his dignity
Artice 14 quarantes the right to life; Every person has the right to live and to the protection of his life by the society in accordance with law. By recognizing antidiscrimination principles human rights of people living with Article 16.(1) quarantees the right to privacy; Every person is entitled 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 communications.
Artlcle 22.(1) and (ii) ensures that every citizens has the right to work regarles his or her status; every citizen is entitled to equal opportunity and right on equal terms to hold any office or discharge any function under the state authority.
Article 24 (1) expressly stipulate that subject to the provisions of the relevant laws of
the land, every person is entitled to own property, and has a right to the protection of his property held in accordance with law.
HIV/AIDS are well protected under the Constitution of the united republic of Tanzania. The issue to be considered in this context is enforcement of these human rights to adequately address stigmatization and discrimination of people living with HIV and AIDS (PLHA) by communities and in various sectors.All above mention Costitutinal provision when construed widely and in human rights perspective they all provide legal protection to People living with HIV. Exprience from the practice shows that there are some laws and traditional pracitices which pose ostacles to some effort taken to combact HIV in Tanzania. Others cannot access the health facilities due culture and some laws or provision of the laws found in operation. Some of vulnerable groups are women, children , trug trafficors , prisoners and minority groups like mobile communities and homesexuals.
Customary law means any rule or body of rules whereby rights and duties are acquired or imposed, established in Tanzania and accepted by such community in general as having the force of law.As the results some of the practces backed by customary law became a great challenge in the battle against HIV.For instance, Women in southern regions and lakes zones regions have no say in economic issues and issues of in heritance. When a husband dies and leaves a widow, all properties left by the deceased husband will not be on the widow’s possession. Mtenda Katubu Secretary, at the Mtwara Paralegal Centre, told LHRC researcher that the problems of inheritance to widows are rampant in the region as every day they receive complaints from widows.
Customary practices and attitudes continue to put women at a higher risk of HIV/AIDS infection. Speaking on the same problem of family instability Mr Mtembwa, Nola Southern Regions Coordinator said that family conflict is a serious problem in the regions, and families do not last long due to traditional behaviours in southern regions.
‘Men tend to marry many women in series; today he marries Mwajuma and then after five years deserts Mwajuma and marries Aisha and so on...” Said Mtebwa
Speaking on the matter with the same tone Nachingwea DC Elias Goroi
attributed the problem of family instability with culture as most of the tribes here are matrilineal.Goroi proclaimed that men tend to marry during farming season and divorce during harvest.
“‘Huku watu wanaoa wakati wa kilimo na wakati wakuvuna wanaachana. na
wanawake nao wanajivunia kuwa na vyuo 9 vingi” Said DC Goroi
Relatevely, Islamic Law and other religious beliefs also mark as another threat to efferts taken ensure accessibility to HIV and AIDS healthy services and other soco-economic rights as stated in the Bill of Rights.For instance Islamic law empowers the courts to apply the rules of Islamic law to Africans who follo Islamic Law in maters of marriage, divorce, guardianship, inheritance, succession, and wakf. Religiuous instutions also prohibit the use of some of HIV/AIDS servises like the use of condom.
Human rights activists in Tanzania have been emphasizing the importance of ensuring then constitutionalization and justifiability of social rights as part of achieving real development. The only way to ensure that such rights are not eroded by ordinary legislation or the administration of justice is to enshrine these rights in the Constitution.The effective legal protection in respect of social security and other benefits for workers (and non-workers) living with HIV, including specific life insurance, pension, health insurance, termination and death benefits. It is a call of LHRC that these rights to form part of constitution hence enforceable through Basic and Duties Enforment Act of 1994.Having these rights into enforceable part of the Constitution will make the government responsible for the social welfare of its people.
2.2 The Basic Rights and Duties Enforcement Act No. 33 (1994)
This is an act to provide for the procedure for enforcement of constitutional basic rights and duties and for related matters. Thus, if any person alleges that any of the provisions of section 12 to 29 of the Constitution has been, is being, or is likely to be contravened in relation to him, he may, without prejudice to any other action with respect to the same matter that is lawfully available, apply to the High Court for redress.
2.3 Anti-Trafficking in Persons Act, 2008
The Anti-Trafficking in Persons Act, 2008 prohibits all forms of trafficking including, but not limited to, transporting or receiving any person for the purposes of slavery, sexual exploitation, forced labor, pornography, and debt bondage. A person committing any crime outlined within this act is liable to be fined, imprisoned, or both. The maximum fine is 150 million shillings, and the maximum prison sentence is 20 years.
For example, in Biharamulo, there is a large number of children who work in the Busili gold mine. This was revealed during an opinion survey that was conducted by the LHRC in 2010. These children are at risk and are exposed to dangers such as HIV/AIDS and an unsafe working environment. There are also no schools in Busili to provide for their education. In this form of trafficking, there are existing agents who take children from rural areas and sell them to people in the cities. This form of business even occurs at the family level. It has been common in our working places to request that whoever goes to rural areas come back with a house girl or house boy.
Also, there is an informal trade that is being done by bar and pub owners to exploit and force women into prostitution. Waitresses are given jobs but on the condition that no salary will be given. Thus, the female waitresses have to find other means to get a salary. This practice is common in some street bars in Kinondoni and Temeke municipalities. It is also a habit for bar owners to use women as an attraction to customers. This is exploitation that is prohibited under the convention, because it is a form of trafficking in persons.The LHRC considers that both internal and external forms of trafficking in persons are inhuman and in violation of human rights, especially those of women and children.
2.4 HIV and AIDS (Prevention and Control) Act, 2008
The Tanzania Commission for AIDS (TACAIDS) was then established in 2002 to coordinate the multi-sectral response, bringing together all stakeholders including government, business and civil society to provide strategic guidance to HIV/AIDS programmes, projects and interventions In 2003, TACAIDS launched the first National Multisectoral Framework (NMSF) 2003-2007, which outlined all areas of focus for stakeholders including cross cutting themes like stigma and discrimination, as well as prevention, care and support and dealing with the socio-economic consequences of HIV and AIDS. Under each broad theme, certain strategic areas were identified (such as school based prevention or blood safety) and goals, challenges, targets and indicators of success were specified.
Tanzania HIV/AIDS legal initiatives were realized in 2008 by enacting the HIV and AIDS (Prevention and Control) Act, 2008. Prior this law it was guided by Tanzania’s National Policy on HIV/AIDS of 2001. The law provides for HIV prevention, care and treatment and protects the rights ofpeople living withHIV (PLHIV). Italso defi nes the rolesand responsibilities of all sectors inaddressing HIV.
The main issues adressed by the act among others were;
• The Government, political, religious, and traditional leaders and employers in the private sector shall advocate against stigma and discrimination of people living with HIV and AIDS, (4.2-b)
• A person shall not be compelled to undergo HIV testing (15.3)
• The Ministry [of Health] shall, where resources allow, take necessary steps to ensure the availability of antiretrovirals and other healthcare services and medicines … (24.2),
• A person shall not formulate a policy, enact a law or act in a manner that discriminates directly or by its implication personsliving with HIV and AIDS, orphans, or their families (28)
• A person shall not stigmatize or discriminate in any manner any other person on the grounds of such person’s actual,perceived, or suspected HIV and AIDS status (31)
• Any person living with HIV and AIDS shall, using available resources, have a right to the highest attainable standard of physical and mental health (33.1-a)
• Every local government authority shall design, formulate, establish, and coordinate mechanisms and strategic plans for ensuringthat the most vulnerable children within its respective area are afforded means to access education, basic healthcare, and livelihood services (34.1)
However, the law has failed to address criticla issues including; State support for legal aid systems specializing in HIV casework, possibly involving NGOs, legal aid centres , State support or inducements (e.g. tax reduction) to private sector law firms to provide free pro bono services to people living with HIV in areas such as anti-discrimination and disability, health-care rights (informed consent and confidentiality), property (wills, inheritance) and employment law, States should ensure that domestic legislation provides for prompt and effective remedies in cases whereby a person living with HIV is denied or not provided access to treatment, care and support and States should also ensure due process of law so that the merits of such complaints could be independently and impartially assessed.
Section 47 provides that any person who intentionally transmits HIV to another person commits an offence, and on conviction shall be liable to imprisonment for a term of five years not exceeding five years. This provision can in one way the other hinder the access to HIV health facilities and treatement.The 2002 UNAIDS Policy option paper and international guideline on HIV /AIDS and Human Rights recommended that criminal or public health legislation should not include specific offences against deliberate and intentional transmission of HIV but should apply general criminal offences It is again against human rights to compel , through criminalization against people living with HIV/AIDS to disclose their HIV status. Therefore, criminalization process can be named as another obstacle hinder access to HIV/AIDS services to avoid being constantly monitored as a criminal.
2.5 Employment and Labour Relation Act of 2004
Noting that HIV and AIDS have a serious impact on society and economies, on the world of work in both the formal and informal sectors, on workers, their families and dependants, on the employers’ and workers’ organizations andon public and private enterprises, and undermine the attainment of decent work and sustainable development ILO adopted Recommendation, cited as the HIV and AIDS Recommendation of May, 2010. The recomendations expressly requires states among others to do the following:
4. Members should:
(a) adopt national policies and programmes on HIV and AIDS and the world of work and on occupational safety and health, where they do not already exist; and
(b) integrate their policies and programmes on HIV and AIDS and the world ofwork in development plans and poverty reduction strategies, including decent work, sustainable enterprises and income-generating strategies, as appropriate.
5. In developing the national policies and programmes, the competent authoritiesshould take into account the ILO code of practice on HIV/AIDS of 2001, and any subsequent revision, other relevant International Labour Organization instruments,
and other international guidelines adopted on this subject.
In 2001, the ILO adopted the Code of Practice on HIV/AIDS and the world of work, which has been widely accepted and used in many countries. In 2007, the Organization’s constituents decided that the time had come to raise the response of the world of work to HIV and AIDS to a different level through the development and adoption of an international labour standard It calls for the design and implementation of national tripartite workplace policies and programmes on HIV and AIDS to be integrated into overall national policies and strategies on HIV and AIDS and on development and social protection. It calls for respect for the fundamental human rights of all workers, including observance of the principle of gender equality and the right to be free from compulsory testing and disclosure of HIV status, while encouraging everyone to undertake voluntary confidential HIV counselling and testing as early as possible.The Recommendation also invites member States to implement its provisions through amendment or adoption of national legislation where appropriate.
Tanzania Tri-Partite Code of Conduct on HIV/AIDS at the work places was developed to support other international and National instruments. The main objective of the code is to provide a set of guidelines to address the HIV/AIDS at the workplace and within the framework of promoting decent work. The main function of the code is to develop concrete responses at enterprise, sectoral at national level by promoting dialogue and consultation with various stakeholders.
Also the Employment and Labour Relations Act, 2004 has provisions protecting the rights of HIV/AIDS workers at work place. Section 7 of the Act provides among others;
7.-(1) Every employer shall ensure that he promotes an equal Prohibiopportunity in employment and strives to eliminate discrimination in any employment policy or practice
(2) An employer s hall register, with t he Labour Commissioner, a plan to promote equal opportunity and to eliminate discrimination in the work place.
(4) No employer shall discriminate, directly or indirectly, against an employee, in any employment policy or practice, on any of the following grounds: (m) HIV/Aids; (n) Age; or (o) station of life.
2.5 The Penal Code of Tanzania
Section 225 of the Penal Code this law creates an offence of grievously bodily harm. Section five stipulate "grievous harm" means any harm which amounts to a maim or dangerous harm, or seriously or permanently injures health or which is likely so to injure health, or which extends to permanent disfigurement, or to any permanent or serious injury to any external or internal organ, member or sense.” This section can therefore be used to cover few exceptional cases on transmission of HIV/AIDS and no need of having any other law to criminalize against deliberate and intentional transmission of HIV/AIDS.
The penal created offences relating to sexual harassment including forced sex. But it does not recognize the offence of marital rape, which seems to be one of the factors for the GBV and HIV/AIDS. Therefore, both laws do not provide adequate protection of women against GBV and HIV infection. It is also unfortunate that most of the GBV cases are not reported to the police and few of those reported have not been seriously handled by the law enforcers.
Even though the unnatural offences like prostitutions and home sexualities are prohibited by this law, but the minority group of LGBTI and sex workers who are said be highly victims of HIV should be given an opportunity to access health facilities including HIV services.
2.6 The Prison Standing Orders
The Prisons Standing Orders sets out guidelines for dealing with HIV/AIDS in prisons. The guidelines include applying all national guidelines on HIV/AIDS to prisons where facilities allow and providing for compulsory counseling before testing occurs.
However, observation at several prisons in the Morogoro region by the TLS fact-finding team (Kingolwara, Wami and Morogoro Central) revealed that prisons do not have specific guidelines at the prison or regional level to deal with HIV/AIDS within the prisons. There are a lack of facilities for testing in the prisons, so inmates do not receive regular testing as required by national guidelines. Also, there is little evidence of any counseling or information on HIV/AIDS prevention provided to prisoners.
All prisoners face threats to their fundamental human rights, but this is particularly true of prison inmates with special needs, including women, children, the elderly, persons with disabilities and persons living with HIV/AIDS. Special attention must be taken to ensure that these groups of prisoners have appropriate facilities to meet their needs and that all necessary health care is provided. Efforts must also be taken to ensure that these vulnerable groups are free from harassment and intimidation by prison guards and other prisoners. These prisoners already face many difficulties by virtue of being incarcerated, but these should not be exacerbated because they are members of groups with particular special needs and vulnerabilities.
3 HIV/AIDS Prevalence in Tanzania: Situational analysis
It is estimated that 5.7% of adults aged 15-49 years in Tanzania (6.6% of women and 4.6% of men), or approximately 1.5 million people in the country are currently infected with HIV. Approximately 10% of those infected with HIV are children. During an opinion survey in Kagera it was revealed that the statistics that are used at the national level are outdated and a new study of the HIV/AIDS rate needs to be done. For example, in 2009 HIV/AIDS prevalence in Kagera was 7.7% compared to 5.6% in 2007/08.In Kagera the prevalence of women with HIV/AIDS is 7.7% and among men it is 5.0%. By comparison with other districts, the Chato district has the highest rate with 12.1% prevalence, and Ngara the least amount with 4.2%.
During the LHRC survey it was shown that population is not a major factor contributing to the prevalence of HIV/AIDS. For example, as the chart below shows, the population of Ngara is higher compared to Chato. But the prevalence of HIV/AIDS in Chato is higher than compared to Ngara.
District People tested HIV Prevalence
Chato 8358 12.1%
Ngara 11,068 4.2%
Aloyce Baba, a Program officer at the HIV Clinton Foundation in Mtwara told the LHRC researcher that the rate of HIV in the region has dropped from 7.3% to 3.6%. He further noted that about 900-1000 people are annually becoming infected with HIV.
The LHRC urges TACAIDS to compile an annual HIV/AIDS statistics report that will be of assistance in the planning and development of various public and private institutions. As the study in one region shows an increase in HIV/AIDS prevalence from 5.6% to 7.7%, it is to be expected that the rates have similarly risen in other regions as well. We cant fight for rights without proper statistics from the ground.
The LHRC’s concern is that HIV/AIDS studies on prevalence should not be a basis for people to believe that the HIV/AIDS rate is falling. These figures have been taken from people who voluntarily present themselves for testing and counseling. The HIV/AIDS epidemic is still a threat to many people, especially young people and women who are especially at risk in terms of engaging in unsafe sex.
3.1 Availability of ARVs in the country.
The government has been providing free anti retro-viral drugs (ARVs) to persons affected with HIV/AIDS. In each region there are established centres that are coordinated by the Regional Aids Control Coordinators. Their key role is to ensure that there is an availability of ARVs according to the needs of each region. In 2009/2010 a total of 284,227 people living with HIV/AIDS were given ARVs. Out of this number, 20,959 children were given treatment.
Deputy Minister of Health and Social Welfare, Aisha Kigoda, said the government is working on a special plan to provide nutritious food to those already infected with the virus and will ensure that ARV drugs are easily available for all.
While in Kagera the Regional AIDS Control Coordinator told LHRC researchers,
“Dawa zinapatikana kwa wingi na ila nilipata malalamiko toka wilaya ya Ngara kwamba dawa zilichelewa kufika, toka ofisi za kanda za Medical Stores Department Mwanza, pia serikali inabadilisha aina ya dawa mara kwa mara hii nayo siyo nzuri”
3.1 Voluntary HIV Counselling and Testing (VCT)
In 2009/10 a total of 7.3 million people attended HIV testing and counseling, and a total of 5,000 VCT councilors were trained. Also, a total of 160,430 victims were attended to by household health care workers in 110 districts. An opinion survey of the LHRC in Mtwara revealed that there are not enough centers for HIV testing, meaning that the majority of people in the country do not have the opportunity to know their HIV status.
3.1 How much is spent for HIV/AIDS
The total of all expenditures on HIV and AIDS interventions by the government and development partners in 2010 is expected to go above 600 billions Tsh. A comparison to the total government expenditures for financial year reveals that there has been an annual increase in total government expenditures on HIV/AIDS.
The table above shows that there is lot of money invested for the purposes of paying for medical supplies and services and drugs, employment allowances, training and seminars. However, these expenditures do not necessarily reflect an increase in HIV/AIDS awareness and prevention measures on the community level.
3.3 HIV/AIDS, Gender Based Violence and Social Equalities
The most vulnerable group to contracting HIV in Tanzania has shown to be married women, who are the least likely to have protected sex and the most likely to be exposed to infection. Gender inequality and the failure to respect the rights of women and girls are significant factors in the HIV/AIDS pandemic in many regions of the world. For example, the subordination of women to men in private and public life often prevent women and girls from negotiating safe sex practices.
For example the figures below from the Lindi rural district indicate the number of people who attended for HIV counseling and testing. As the figures show, the number of women is very high compared to men, implying that women are more vulnerable to HIV than men.
Number of people attended in VCT in Lindi rural district January – May, 2010 at VCT Centres and mobile VCT service popularly known as (NJIA YA MKOBA)
Month Below 14 14-25 25-49 Over 50 Grand total
Male Female Male Female Male Female Male Female Male Female total
January 10 8 46 309 132 449 24 36 212 802 1014
February 21 24 53 275 201 480 34 20 309 799 1108
March 9 7 51 319 281 521 28 13 269 860 1129
April 0 1 0 9 111 106 0 1 111 117 228
May 16 12 58 253 328 658 38 34 440 957 1397
Total attended VCT 56 52 208 1165 953 2214 124 104 1341 3535 4876
Total HIV + 2 5 8 21 58 147 10 13 78 186 264
The above extract from the District Medical Officer of Lindi shows that 72.5% of the total number of people who attended VCT were women and 70.5% of those who tested positive for HIV were women. This small sample represents the situation of the whole country in that women are more vulnerable to HIV than men. However, on the other hand, it can also be concluded that the will to attend virus counseling and testing among men is low compared to women, who must attend VCT during pregnancy.
The LHRC strongly recommends men should also show up for HIV counseling and testing. It has become a common habit for men to assume that because their partners have gone for VCT and tested negative, they must also be HIV-negative. This is an incorrect and wrong assumption to make as scientific experiments show that in a relationship one partner may test positive and the other negative for HIV.
I. The goverment in collaboration with other stakeholders should raise public awareness of the rights and guarantees included in various laws as discussed above, especially for PLHIV, and establishing mechanisms for legal redress and monitoring.
II. Harmonizing the law and National HIV/ AIDS Policy with other legal provisions, especially those relating to the most at-risk groups, including sex workers, injecting drug users, and men who have sex with men,
III. Thev East Africa Stats should come out with a a joint law to address better tcontroversial areas like criminalization of transimision of HIV/AIDS.Another controversial area is that in the Penal Codes of Kenya, Rwanda, Burundi and Tanzania prostitutes and gay men, who are considered vulnerable in HIV/Aids transmission, are not allowed access to treatment.
IV. Tanzania needs a new Costitution that will make social rights which include right to health justiciable and hence enforcialble in the court of law.
V. The goverment of Tanzania needs to eprove provision of social services in rural areas as the only was to improve accessibility to healthy facilities which are very crucial to PLWHV.
VI. In order eradicate the HIV/AIDS pandemic in Tanzania, the goverment should concetrate much to improve the life vulnerable groups who use to be the most people at risk.
“Lights For Rights”