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2nd Meeting of the African Regional Judges' Forum on HIV, Human Rights and the Law

The second meeting of the African Regional Judges' Forum on HIV, Human Rights and the Law was held on 18-19 June in Johannesburg, South Africa. Twenty-three judges representing the senior judiciary from 13 African countries participated in the Forum. Jurisdictions represented included the judiciary of Botswana, Ghana, Kenya, Lesotho, Malawi, Mauritius, Namibia, Nigeria, South Africa, Swaziland, Uganda, Zambia and Zimbabwe. The second meeting therefore had representation from Eastern, Southern and Western Africa and from the Small Island nations.

The agenda was determined by the Judges' Forum and the 2-day deliberations included detailed discussions on (a) the final report of the Global Commission on HIV, Human Rights and the Law; (b) rights of incarcerated populations including their health rights and rights to access to treatment; (c) the question and rights of people with disability in the context of HIV; (d) access to medicines for PLHIV and engaging the courts in ensuring access based on utilising the flexibilities incorporated in the TRIPS Doha Declaration; (e) understanding the science of transmission of HIV to adjudicate cases linked to sexual violence and HIV status; and (f) transgender people and their issues in the context of laws and access to services in particular, and the rights of LGBTI people generally.

The Forum discussed these issues in a collegial environment and called on experts to make brief submissions/presentations on specific issues to initiate discussion. Experts called upon included lawyers, a civil society representative, a representative from the transgender community and an expert on HIV science. All sessions were chaired by the judges. Three senior judges made presentations on the issue of disability, on the issue of prisoners' rights to treatment and on the rights of LGBTI people – drawing on their vast judicial experience and case law. The device of a 'mock-trial' was also utilised by the Forum to stimulate discussion. In addition, a dynamic repository of documents containing rulings on HIV-related human rights issues, scientific information, guidance and tools and international treaties was launched and shared with the Judiciary present. The repository can be found here.

At the end of the two-day meeting, the Judges' Forum identified a number of key areas for taking the process forward and these include the following:

  • The judges expressed that this Forum continue and meet again by March 2016 and directed UNDP RSC Africa to continue as its secretariat.
  • They expressed that this gathering of Judges become expert trainers so that they can bring awareness to other judges within their jurisdictions; and initiate similar forum(s) in-country. They advised that all level of judiciary receive such training including the lower judiciary and the magistracy. They further expressed that this be initiated in country with assistance from UNDP country offices.
  • This Forum expressed the need to have more time during the meetings and advised that the next Forum cover 3 days and focus more time on issues like disability; transgender people and criminalization of HIV transmission and overboard laws; statutory rape and transmission of HIV; scientific issues in countries where DNA testing is a problem when it comes to sentencing; and the issue of using/introducing scientific evidence in situations when it is not presented in court within the case.
  • In addition, the Forum directed the secretariat to assist in developing a proper work plan for them which identifies the next steps. It advised that reference material be made more accessible and lauded the launch of the repository of documents. It directed UNDP RSC Africa to make it easier for the Forum to communicate, pose questions and request for reference material through a common email or e-group.
  • It also directed that it was important to include lawyers, the civil society and affected populations during Forum meetings and advised the inclusion of representatives from national law commissions to the forum.