Rights, responsibilities and the new Aids denialism

25 November 2011 by

Ironically, during the week when South Africa’s notorious “Secrecy Bill” was making its speedy way through parliament, Helen Zille, Leader of the opposition Democratic Alliance party in South Africa, struck a blow for freedom of expression by tackling one of the  most sensitive subjects on the Southern Africa agenda – Aids.

In short, Zille has created a storm in the Twittersphere and many other places besides by questioning the softly-softly culturally sensitive approach to Aids prevention in South Africa and contrasting it with the greater emphasis placed on individual responsibility in other countries.

In her her piece in the Cape Times  she points out that in Europe, North America, Australia and New Zealand, deliberate infection of others with HIV is an imprisonable crime. Far from being a violation of HIV sufferers’ rights, she notes the high proportion of Council of Europe countries which have criminalised people for having unprotected sex, knowing they were HIV-positive, without disclosing their status. To us there is nothing controversial about these measures.

Indeed the only Aids/HIV cases that have reached the Strasbourg Court have involved breaches of patients’ privacy, or claims against the state where infected blood transfusions have passed the virus on, and a range of cases about inadequacy of medical treatment in prison or in the destination state where the HIV positive applicant is seeking asylum. The one occasion where the disease itself and the state’s approach to it was the focus of the complaint was a Swedish case where the applicant complained that his compulsory isolation in hospital under the state’s infectious diseases legislation deprived him of his liberty contrary to Article 5 (Enhorn v Sweden (2005) 56529/00). He was successful – the measures taken, though lawful under Article 5 (the prevention of the spreading of infectious diseases) were too extreme given that there was no evidence or indication that during that period the applicant transmitted the HIV virus to anybody, or that he had sexual intercourse without first informing his partner about his HIV infection, or that he did not use a condom, or that he had any sexual relationship at all for that matter.

The UNAIDS International Guidelines on HIV/Aids and Human Rights 2006 advise states not to react with panic by locking up sufferers and subjecting people to randomised Aids tests. But even these guidelines recognise that in exceptional cases involving deliberate and dangerous behaviour, restrictions on liberty may be imposed. Such exceptional cases should be handled under ordinary provisions of public heath, or criminal laws, with appropriate due process protection. (Guideline 4, Section 21(a))

But, as Zille says, the cases of assault and other criminal proceedings following deliberate infection with HIV/Aids sound “shocking” in the South African context, which has a different response to the AIDS pandemic.

We tend instinctively to feel that the rights of the accused in the above examples were grossly violated. What about their privacy? How could their photos have been published in the papers? What about the stigma? Wouldn’t that discourage others from being tested? Wouldn’t it merely drive the pandemic underground, making it more difficult to beat?

But much harder questions need to be voiced, and answered, in Zille’s view, if South Africa is ever going to tackle its unenviable status as having the largest adult HIV-positive population in the world. Quoting from a work on the pandemic in Southern Africa by the scientist Helen Epstein, The Invisible Cure, Zille posits that

The root cause of our AIDS crisis is the entrenched culture of multiple concurrent sexual partners, aggravated by inter-generational sex.

Epstein has christened this culture the “Aids Superhighway”, and one of her conclusions are that the only countries in Africa that have turned the AIDS pandemic around are those that have focused on partner reduction. In the 1990s, in countries where partner reduction has taken place, like Kenya and Zimbabwe, the HIV rate declined. In South Africa, where condoms are emphasised as the main method of prevention, and no partner reduction has occurred, HIV rates rose.

We have focused on condom distribution and free treatment, because these interventions shift the responsibility away from the individual, onto the state.

So far, so uncontroversial – one might have thought. But Zille’s attempts to get this message across at various health summits in her bailiwick, the Western Cape, have unleashed a torrent of abuse. She quotes some of the Twitter responses, but saves our blushes by refraining from reproducing the “most disgusting”:

Said @Lo_Dee: “U r white. We are groomed for polygamy. Go say that in bloody Europe.”

And @Levinborn added this gem: “Outrageous! Hahaha you think u can police individual sexual activity?”

And @LegoTrip added: “Keep your laws off my penis!”

Zille reflects laconically that none of these “Twits” would not hesitate to demand free anti-retrovirals if they were diagnosed HIV-positive –

That is, if they ever bothered to get tested. These are the kind of people who reject the “nanny state” when it reminds them of their responsibilities, but demand that the “nanny state” address all their “rights”. For free.

The relative success of countries which respect the rights of HIV positive people in keeping the rate of infection down is because of a shift in stigma, from people living with HIV, to the actual behaviour that spreads HIV. Rights-based democracies are entitled to prescribe that citizens who are HIV-positive have a particular duty to disclose their status in situations where others could be at risk.

We must begin by challenging the pre-modern notion that unprotected sex with multiple, inter-generational concurrent sexual partners is a cultural right.  It is not.  In a modern urban context, it wreaks social devastation.  It drives the teenage pregnancy rate, entrenches poverty, spreads disease, destroys families, produces unwanted and neglected children.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Related posts:

1 comment;

  1. I seriously don’t think that the South African (and sadly to say most African) government(s) don’t take the spread of Aids seriously, possibly because it doesn’t affect them. and only the poorer elements of society.

Comments are closed.

Welcome to the UKHRB

This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates

Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.




This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: