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Experiences, good practices and lessons learned in supporting the implementation of the recommendations of the Global Commission on HIV and the Law

[Facilitator’s note: Please find below responses, received with many thanks, from Rosemary Kumwenda, UNDP Malawi and Rachel Morrison, UNDP Jamaica; to phase I of the e-discussion on “The Global Commission on HIV and the Law – Taking the Commission’s Recommendations Forward”. We look forward to receiving additional responses, which can be posted online here, or alternatively via email to Kindly note that the discussion platform is publicly accessible. The discussion platform can provide translations of contributions - use the ‘Google Translate’ button on the top of the screen and select the language of your choice.* Thank you.]

Rosemary Kumwenda, UNDP, Malawi:

Question 1: What actions have been taken in your country to follow-up on the findings and recommendations of the Commission or to promote an enabling legal environment for AIDS responses?  What good practices or lessons have emerged from these activities?

Actions in Malawi post Global Commission on HIV and the Law

Malawi is in the spotlight in the past two years because of has continuously registering significant progress in the national response to HIV as evidenced by results in the areas of prevention; treatment, care and support; impact mitigation and the legal, regulatory environment for HIV and AIDS response.

For example
Since 2010, the number of sites providing HIV testing and counseling services increased by more than 220% from 2006 and the number of tests undertaken per year increased by 260%.  Similarly, during the same period, the number of ante-natal clinics (ANCs) providing the minimum package increased by 820%, and the number of pregnant women attending ANC’s who were tested and counseled increased by 310%.  Malawi offers pregnant women a special programme,called Option B+ and since its roll-out from June 2011 to 2012, there has been a 748% increase in the number of pregnant and breastfeeding women startingantiretroviral therapy, from 1,257 to 10,663. There has been a decrease of 17% in the number of AIDS-related deaths and a decrease by 40% of the number of child infections. Outside antenatal programme, there has been a sharp increase in people registered for treatment from 18,442 in July 2011 to 29,707 in the third quarter of 2012, an increase of almost 100%. The number of sites providing treatment rose from 303 in June 2011 to 641 in September 2012, again an increase of more than 100%.

Enabling environment for AIDS response
A number of key documents have been developed using the evidence from the Global Commission on HIV and the Law report:  Malawi conducted a National Legal Regulatory Environment Assessment (LEA) of the National multisectoral response to HIV. The LEA report was nationally disseminated in October 2012 and apart from providing country specific evidence, the  LEAalso based its recommendations on the Global commission report on HV and the Law. The National dissemination was coupled by dissemination of the Global commission report by the UNDP Regional Service Centre. The summary recommendations and fact sheet has been used in the 4 Regional disseminations conducted for all 28 districts in Malawi. Further, the Parliamentary committee on HIV and AIDS and the Chairpersons of key committees of parliament have been targeted and have full knowledge of the Global commission report on HIV and the Law and LEA recommendations.
Documents that have used the Global Commission on HIV and the Law and LEA Recommendations:

(a) The National HIV and AIDS Policy. UNDP supported the revision and finalization of the policy by ensuring that recommendations of the Global commission on HIV and the Law and Legal Environment Assessment recommendations were used to strengthen a rights based national HIV policy.

(b) The National HIV and AIDS Strategic Plan (2012-2016) was also revised and finalized and is aligned to the National HIV and AIDS policy. These strategic documents will be launched shortly in 2013 by Her Excellency the President of Malawi, who is also the Minister responsible forHIV and AIDS.

(c) The draft HIV prevention and management Bill is currently being revised and is also financially and technically supported by UNDP and UNAIDS. The 2008 version of the draft HIV Bill had provisions which are contentious from the human rights point of view.  It included: a
number of provisions proposed that limit the rights of people, such as: (i) compulsory HIV testing for a range of populations such as testing of persons charged with sexual offences, sex workers, persons in polygamous unions,pregnant women and their sexual partners or spouses, and blood and tissue donors; (ii) disclosures of HIV status by health care workers; and (iii) the criminalization of HIV transmission.

So far the Government is leading the review process and is conducting consultations with key stakeholders.

The Minister of Justice issued a moratorium on the enforcement on criminalization of homosexual activities in view of public health and health for all to ensure universal access to services. This was announced after the dissemination of the LEA during a panel discussion organized by Centre for Development of People (Cedep) and broadcast live on Zodiak radio station.

Further, there have been numerous debates and dialogues on issues of sexual minorities in the country, including an awareness and advocacy session for religious leaders conducted by Human rights CSOs.

The Global Commission on HIV and the Law reports and the Legal Environment Assessment are being used for awareness creation, advocacy and planning purposes by Government CSOs and the private sector organizations workingon HIV programmes and projects.

Question 2: What have been the most difficult issues to address in supporting implementation of the Commission’s recommendations? What approaches have you used to deal with these challenges?

Controversial issues

Due to upcoming elections in Malawi in 2014,it appears that for political reasons, the evidence on decriminalization of same-sex behavior as it relates to public health objectives may not be translated into legislation in the run-up to the election.

The approaches we are using to deal with this challenge is multi pronged.

  • The Centre for Development of People (CEDEP) is a pro-minority rights organization that promotes the rights of gays and lesbians. The organization is conducting an MSM population size estimation study with support from UNDP, UNAIDS and UNFPA. The support is channeled through UNDP’s implementing partner The Department of Nutrition HIV and AIDS that has signed a memorandum of Understanding with CEDEP to conduct this study. The results of the study will provide evidence for programming and for service provision to this marginalized target group. NAC has also funded the organization for the first time in 2013. Further, CEDEP is now a member of the Global Task team that is developing the proposal under the new funding model.
  • A new technical working group has been formed with the aim: To develop a culture of human rights in Malawi by taking a leading role in advocating for protection and promotion of human  rights, including the right to health, for LGBTI people.  Malawi sex workers have formed and registered a sex workers Alliance and has been involved with advocacy for the rights, increased protection and access to services. Despite the successes highlighted above, Commercial sex workers and Malawi police officers are rated high on the list of group of people affected with HIV epidemic in the country.  Sex workers top the list with 70.7 percent whereas the cops are at 75 percent, according to the 2012 UNAIDS report.
  • The Malawi Prison Services commissioned an HIV prevalence survey which was funded by the United Nations Office on Drugs and Crime (UNODC) and the United National Population Fund (UNFPA). One of the key recommendations  is that the criminal justice system needs to reform to ensure that cases of remandees are heard and decided upon in a timely fashion and people committing less serious crimes can be sentenced to community services. The recommendations of this report are now part of the process of reviewing the Malawi Prison Act which has commenced.
  • The country is sending 3 senior Law enforcement officers to Nairobi for an international workshop to increased their awareness on the role of the law and the law enforcement officers in protecting the rights of people living with HIV and members of key populations in light of the findings of the Global Commission on Law and HIV.
  • Finally, Malawi took advantage of the launch of the UNAIDS / The Lancet Commission From AIDS to Sustainable Healthto ensure these difficult issues were raised in the official remarks of the UNAIDS Executive Director Michele Sidibé, critically advocating for the rights of ALL Malawians and by extension the key populations, and also through closed door advocacy at the highest level through the Administrator.  


Rachel Morrison, UNDP, Jamaica:

Question 1: What actions have been taken in your country to follow-up on the findings and recommendations of the Commission or to promote an enabling legal environment for AIDS responses?  What good practices or lessons have emerged from these activities?

The HIV and the Law project currently being undertaken by the UNDP Jamaica country office is a direct result of the work carried out by the Global Commission on HIV and the Law.  The National Strategic Plan on HIV for Jamaica 2012-2017 had recognized the enabling environment as a critical area requiring strengthening to facilitate the reduction in HIV infection amongst what it defined as its most vulnerable populations.  The commission through its work highlighted critical issues and identified gaps that needed to be addressed.

The recommendations from the Caribbean regional dialogue factored heavily in the decision to undertaken the four main output areas of the project:            

  • A detailed assessment of HIV-AIDS related domestic legislation and identification of gaps in compliance with international human rights instruments
  • A costed Plan of Action for amendment of HIV-related policy and legislation
  • Sensitization of parliamentarians to the direct and indirect effects of outdated, inconsistent, and discriminatory HIV-related laws on the incidence of HIV and AIDS in Jamaica
  • Capacity assessment of entities providing legal aid for persons vulnerable to HIV-related abuse of rights

Judicial Sensitization
The first activity under the project was undertaken in July of 2012, Justice Michael Kirby from the Global Commission on HIV and the Law was going to be in the region and the Chief Justice of Jamaica Mrs Zaila McCalla in partnership with the UNDP Jamaica country office saw this as an opportunity to begin the dialogue on HIV and the law with a group of Jamaican judges. A distinguished group of panellist were present including Mandeep Dhaliwal, Director HIV Health and Development Practice, (Acting)Head of the National HIV/STI Programme Dr Nichola Skyers, , Maurice Tomlinson, Legal Activist  and of course Justice Michael Kirby. The intention was to have the Jamaican Judiciary sensitized to the impact of outdated and discriminatory laws on HIV and other key issues raised within the scope of work of the Global Commission on HIV and the Law. There was strong support for the event and the initial discussions raised key issues on where areas of judicial reform needed to occur from the perspectives of the judiciary and who they saw as   the main gatekeepers of that process.

Legal Assessment
Over the years there has been quite a bit of work done on HIV related legal reform in Jamaica. Therefore in the case of Jamaica the current legal assessment being undertaken by the UNDP Country Office in partnership with the National HIV/STI Programme would not be a foundational discovery analysis but rather a comprehensive updated assessment bringing all the issues under one heading. A key component of the assessment will be looking at the international political commitments made by the country in relation to HIV and identifying the gaps hindering the achievement of these targets in the local legal system. The assessment will be the backbone of the plan of action on legal reform, a key output of the HIV and the Law Project.

The plan of action will be established by the project’s Legal Review Steering Committee. This committee is made up of representatives comprising legal officers from five government ministries, NGO’s representing vulnerable groups, representatives from the National HIV programme and donor partners working in the areas of HIV legal reform. It is a smaller management group for a larger stakeholder group made up of all the key players working in HIV in Jamaica. It was important that from the very outset of the process the focus of how the results from the assessment would be used was clearly articulated. The result of this was that the need to have representation and direct participation by the legal representatives from the various ministries within which a number of punitive or discriminatory laws reside was critical. They would have direct knowledge on how to move laws and policies through the ministerial system and guide the technical steps in the reform process.  The Legal assessment is currently underway with the initial report expected in late September.

Capacity Assessment Legal Aid Services
At the Global Commission’s Regional dialogue the issue of the prohibitive costs of accessing justice was raised in quite a number of the submissions.  The mapping and assessment of legal aid services will be important for determining how strong a support system is in place for individuals wishing to take action against entities or persons responsible for violations. It is also a very important first step in identifying the kinds of services currently available and what areas require strengthening.  The results of the assessment will provide the foundation for further work in building the capacity of legal aid service provision in Jamaica. It will also provide guidance for NGO’s working with some of the most vulnerable groups who continue to be a first contact point for persons who have experienced discrimination. The assessment is slated to begin later this month.

Sensitization of Parliamentarians
In developing the project goals, parliamentarians were identified as a key stakeholder group that required special targeting because of their role in the legislative process.  The project recognised that law-makers’ understanding of the linkages between the HIV response and current provisions in law must be clear and comprehensive if they are to support HIV-related legal reform. The importance of involving politicians in legal reform and their continued education and sensitisation on the key issues was strongly highlighted in the findings in the Global Commission’s report.

The final steps in the passage of laws in Jamaica are the responsibility of the elected and designated representatives who make up the Jamaican Parliament. Under the Constitution the Parliament of Jamaica consists of Her Majesty, The Queen, the Senate and the House of Representatives.  Her Majesty’s representative in Jamaica is the Governor-General.  The Senate consists of twenty-one Senators, thirteen of whom are appointed by the Governor-General on the advice of the Prime Minister and eight on the advice of the Leader of the Opposition. The House of Representatives consists of sixty three elected Members who are known as Members of Parliament.  Forty-two of the Lower House members are from the governing People’s National Party (PNP) and twenty-one are from the Jamaica Labour Party (JLP) which forms the political opposition.

Under the project we are aiming to reach 20 per cent of parliamentarians with our sensitization activities. A conservative number which acknowledges outcomes from previous HIV related engagements and the ability to gain access to them for fruitful discussions.  As the Commission pointed out at the Caribbean Regional Dialogue identifying champions who will support and initiate discussions on HIV related legal reform is important and it is the intention that out of the initial sensitization of parliamentarians within the scope of this project these champions will be identified.  A draft strategy for the sensitization of parliamentarians has been developed and will be rolled out between September 2013 and December 2013.


*This e-discussion is organized by UNDP’s HIV, Health and Development-Net and the Network for UNDP’s Partnership with the Global Fund, and cross-posted on the UN Human Rights Policy Network – HuriTALK, DGP-Net, Gender-Net, the Asia Pacific Community of Practice on HIV, Gender and Human Rights (HIV-APCoP), the Joint United Nations Initiative on Mobility and HIV/AIDS in South East Asia (JUNIMA), the UNICEF HIV/AIDS Community of Practice, the Interagency Task Team HIV and Young People Community of Practice and the Global Commission on HIV and the Law mailing list.

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