‘This Time for Africa’ is the title of Shakira’s song for the FIFA World Cup 2010 that was held in South Africa. It was time for South Africa to show the world that the Apartheid era was left behind. The country changed to a democracy after the parliamentary elections and victory of the ANC in 1994 and they had a fast growing economy. It was time South Africa showed the world that they could organize a World Cup and that they were working on a new future. And they still are.
Even though the biggest economy of the African continent is working on a new future, the country is still facing a lot of social problems. Lately, the news showed us the mine strikes in the platinum industry. These strikes can have an impact on other sectors as well, which is not preferable in a country like South Africa. Furthermore, there is unemployment and poverty, but still one of South Africa’s biggest problems is the people infected and affected by HIV/AIDS.
This blog will focus on South Africa, but with a special attention to HIV/AIDS. I will start with describing the HIV/AIDS situation in the country and the assistance of international organizations, like the WHO and UNAIDS, in fighting the disease. Then I will provide a brief overview of the HIV-related law in South Africa and compare this with the legislation in other countries in the world. Finally, I will conclude with a story of working in a South African township for a community based non-governmental organization that provides in HIV/AIDS treatment, prevention and education.
South Africa and HIV/AIDS
HIV/AIDS in South Africa is a prominent health concern; South Africa is believed to have more people with HIV/AIDS than any other country in the world. The human immunodeficiency virus (HIV) is a retrovirus that infects cells of the immune system, destroying or impairing their function. As the infection progresses, the immune system becomes weaker, and the person becomes more susceptible for infections. The most advanced stage of HIV infection is acquired immunodeficiency syndrome (AIDS). It can take 10-15 years for an HIV-infected person to develop AIDS; antiretroviral drugs (ARV’s) can slow down the process even further. HIV is transmitted through unprotected sexual intercourse, transfusion of blood, sharing of needles, and between a mother and her infant during pregnancy, childbirth or breastfeeding.
The government of South Africa cooperates with local organizations and communities to fight this disease. They also get support from a global level. At the core of these global efforts to combat the disease is the World Health Organization (WHO). The WHO was officially recognized by the UN as the lead agency in combating HIV/AIDS through 1987 and 1988 UN Economic and Social Council (ECOSOC) resolutions, highlighting the need for a lead agency to gain donor support and leadership in response to the disease. At the moment, the WHO works together with the taskforce UNAIDS and they develop norms and standards for the treatment, prevention and education of HIV/AIDS.
Unfortunately, since the discovering of the disease in South Africa in 1983, the government has been very slow in reacting to the problem of HIV/AIDS.
Problems in South Africa with HIV/AIDS
It is exactly this poor leadership that makes an effective fighting of the disease difficult. The knowledge of the South African government concerning for example transmission of HIV is lacking and in the beginning, they did not want to believe that HIV causes AIDS. But in 2010, under president Jacob Zuma, the government has made huge effort to catch up. They released new national guidelines more in line with the recommendations of the WHO. Now antiretroviral treatment (ARV) can be provided on a nation-wide basis which means that HIV-positive people can be treated in an earlier stadium.
But poor leadership is not the only reason why living with HIV/AIDS in South Africa is difficult. Those individuals living with HIV/AIDS are confronted with stigma related to the disease and therefore feel to ashamed to talk about the disease, educate themselves, or seek testing and treatment. This in turn leads to discrimination. In South Africa, women have been cast out of their villages because of positive HIV status, children have been denied schooling and access to medical treatment, and HIV-positive individuals have been denied employment or fired from their jobs. Poverty also works in favour of the disease as well as the fact that South Africa has eleven official languages, which makes the education about the disease even harder.
Finally, the South African Constitution recognizes customary law and the courts in South Africa are required to enforce customary law. Customary law affects the transmission of HIV/AIDS, because in some cultures men may have numerous sexual partners, while women may not. Customary law also allows polygamy which enables men to have more than one wife. Polygamous relationships have the potential to spread HIV rapidly.
But do South Africans have a right to be taken care of? How can those rights be exercised?
HIV-related law in South Africa
Strangely enough, it seems that South Africa’s legal framework for protecting those with HIV/AIDS is progressive. In South Africa, these protections can be found in the Constitution (1996) and in the statutes. The Constitution guarantees privacy and equal protection rights. It also guarantees the right to access of healthcare. No medical professional can refuse to treat someone because of positive HIV-status. The statute, for example, grants HIV-positive individuals rights in the workplace.
South Africa does not criminalize HIV transmission while other countries have laws that have some criminalizing effect on sexual behavior that may transmit HIV. These laws, for example in the United States, make it possible to prosecute HIV- positive individuals for engaging in behavior that could transmit the virus. In the Netherlands there has been one prosecution for intentional HIV transmission under existing laws and so the Supreme Court suggested that the legislators should create a new law. Most international organizations and communities are against criminal punishment, especially in developing countries. The effect of criminal punishment is highly dependent on the HIV-environment, which is different in every country.
But, in the light of South Africa’s Constitution, it should be no problem to implement more public health laws in the future.
Waterberg Welfare Society
The Waterberg Welfare Society is a community based non-governmental organization which provides help and support for those infected and affected with HIV/AIDS. They do this through providing HIV/AIDS awareness, prevention, education and treatment, through their hospice and youth center facilities as well as through different outreach programs. The WWS is situated in the rural Limpopo town of Vaalwater with its township Leseding and rural farm communities. It is a socially deprived area with high unemployment, high HIV prevalence as well as issues of substance abuse and teenage pregnancy on the rise.
Ebba Fagerberg, whom I interviewed for this blog, volunteers for the WWS. She told me that this local NGO really makes a difference in their community. South Africa’s HIV/AIDS epidemic is mostly concentrated in its townships, so there is a need for organizations like the Waterberg Welfare Society. Fighting HIV/AIDS cannot be done by the government only.
It is clear that the fight against HIV/AIDS is not finished. The fight against HIV/AIDS is marked by struggle, like the history of the country. Some people think that the African philosophy ‘Ubuntu’ can help so that people will help each other. Education is also a very important step. People in South Africa should become more aware of the risks of HIV/AIDS. Therefore, it is important that the South African government works together with international organizations and local communities, like the WWS. In 2010, the government took a big step forward with ARV drugs and now it is time to move on; to really fight the disease. This time, for Africa!
A selection of relevant publications from the Peace Palace Library collection
- Bessler, J.D., "In the Spirit of Ubuntu: Enforcing the Rights of Orphans and Vulnerable Children Affected by HIV/AIDS in South Africa", Hastings International and Comparative Law Review, 31 (2008), No. 1, pp. 33-113.
- Harman, S., Global Health Governance, London, Routledge, 2012.
- Heneke, M., "An Analysis of HIV-Related Law in South Africa: Progressive in Text, Unproductive in practice", Transnational Law and Contemporary Problems, 18 (2009), No. 3, pp. 751-776.
- Mubangizi, J., "The Right to Health Care in the Specific Context of Access to HIV/AIDS Medicines: What can South Africa and Uganda Learn from Each Other?", African Human Rights Law Journal, 10 (2010), No. 1, pp. 105-134.