Resources Lesson 6: Some Case Studies and International Legal Instruments
To supplement the two major resources you will find in the introduction to this Topic, you might like to explore some of the cases reported by the Southern Africa Litigation Centre (SALC) who aim to promote human rights and the rule of law in Southern Africa.
This example demonstrate issues of prisoners' rights for TB.
Criminalisation as a Public Health approach:
KELIN, a Kenyan based organisation, has been challenging the effective criminalisation of TB in its courts - certain legal provisions are used by Public Health officials to seek court orders to detain TB patients.
In a number of countries there are legal provisions criminalising HIV transmission and exposure which thus impact on human rights and produce a negative public health impact. Legal challenges to these laws have included a 2015 constitutional challenge by Zimbabwe Lawyers for Human Rights in Zimbabwe. In 2015 the Kenyan High Court also declared a similar law - vague and overbroad and a violation of constitutional protections.
Informed consent: potential conflict between human rights concerns and Public Health benefit.
In Malawi, for example, all women who access antenatal care are tested for HIV. The testing is considered “opt-out” in the sense that it is provided unless the patient explicitly declines the test. From a human rights perspective this raises very troubling concerns on informed consent, particularly when a wealth of research indicates the restraints on women seeking care to fully understand that they have a right (and to exercise it) to refuse the testing. Many studies show that women in these situations fear being denied other forms of health and antenatal care (the need for which brings them to the facility to start) if they refuse testing. Women are in addition often the first to be identified as HIV-positive in relationships because of this antenatal testing, which often leads to assumptions of the woman being the transmitting partner, risking violence, abandonment etc. However, in some measure due to this programme, Malawi has seen drastic reductions in mother-to-child transmission of HIV as pregnant mothers who are HIV-positive are identified timeously and can be initiated on appropriate treatment and counselled on practices to reduce transmission risk (eg not breast feeding after the child’s birth). In research by SALC, women’s rights groups recognise the conflict here where there are clear and undeniable public health benefits in the midst of infringements of women’s autonomy in a manner they recognise as discriminatory. Another examples are forced testing of sex workers, and coercive sterilisation of HIV positive women.
Reproductive health: In Uganda, there has been a constitutional petition on the right to reproductive health services following the government’s failure to provide essential maternal health commodities in government facilities.
Migrant health: There is consensus on the public health need to provide for the healthcare needs of migrants, including undocumented migrants. The legal environment, however, is arbitrary and discriminatory against migrants. In 2015 in Namibia, the government overnight raised the price of accessing ART for migrant workers (mainly women) leaving most unable to access treatment. The Botswana government also refuses to provide ART to refugees and asylum seekers despite adopting an encampment policy for these groups of migrants.
International legal instruments
These underpin the application of Human Rights internationally, and are of considerable importance - they can be downloaded as files below. We do not have room for the many national legal instruments which also exist.
The Universal Declaration of Human Rights: Art 12(2), Art 25
International Covenant on Economic, Social and Cultural Rights: Art 12
Convention on the Rights of the Child: Art 24
Convention on the Elimination of All forms of Discrimination Against Women: Art 11(1)(f), Art 12
Convention on the Elimination of all Forms of Racial Discrimination: Art 5(e)(iv)
Convention on the Protection of All Migrant Workers and their Families: Art 28, Art 43(1)(e), Art 45(1)(c), Art 70