African Commission on Human and Peoples' Rights Issues First General Comments, on Women's Health and HIV

During its 52nd Ordinary Session, the African Commission on Human and Peoples’ Rights (African Commission) adopted its first General Comments on any of its  legal instruments‘ meaning.   The General Comments pertain to Article 14(1)(d) and (e) of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (commonly referred to as the Maputo Protocol), recognizing women’s rights to protection from HIV and to information about their own health status and that of their partner.

Article 14 reads in relevant part:

1. States Parties shall ensure that the right to health of women, including sexual and reproductive health is respected and promoted.
This includes:
d) the right to self-protection and to be protected against sexually transmitted infections, including HIV/AIDS;
e) the right to be informed on one’s health status and on the health status of one’s partner, particularly if affected with sexually transmitted infections, including HIV/AIDS, in accordance with internationally recognised standards and best practices;

The Maputo Protocol is significant in its own right, as the first human rights instrument to explicitly address women’s reproductive rights and HIV.  See, e.g., General Comments, para. 6.

Addressing the Need for Guidance

The General Comments are a non-binding interpretation of the Maputo Protocol meant to guide States in their implementation of the Protocol’s legal obligations. The Comments were adopted pursuant to Article 45(1)(b) of the African Charter on Human and Peoples’ Rights (African Charter), which directs the African Commission to interpret the provisions of the African Charter.  As a protocol to the African Charter, the Maputo Protocol falls within the interpretative mandate of the Commission.  Therefore, the General Comments serve as the authoritative interpretation of Article 14 of the Protocol and will henceforth guide the Commission in its consideration of communications and State reports that relate to Article 14(1)(d) and (e).

Although human rights bodies including the Committee on Economic, Social and Cultural Rights have read other human rights instruments to include protection and respect for women’s reproductive health, only Article 14 of the Maputo Protocol is unique in explicitly recognizing this right in a legally binding instrument.  Legal recognition of these rights, particularly as they relate to HIV/AIDS, is critically important in Africa.  According to the General Comments, women and girls face a “disproportionate risk of HIV infection in Sub-Saharan Africa” with women making up fifty-nine percent of people living with HIV in the region and young women aged fifteen to twenty-four being eight times more likely than men to be living with HIV.  As the Comments note, this disparity is the result of a number of societal issues including physical and social barriers to healthcare, gender inequalities, and discrimination against women and girls. General Comments, para. 3.

While Article 14(1)(d) and (e) has been described by civil society as “revolutionary,” it has also been criticized for failing to provide guidance to States on how to meet their obligations under the Protocol.  Consequently, the African Commission’s Special Rapporteur on the Rights of Women in Africa undertook the drafting of General Comments interpreting the text of the Article.  The Special Rapporteur worked with the Centre for Human Rights at the University of Pretoria, which provided technical support and the Solidarity for African Women’s Rights Network and UNAIDS, which provided financial support.

Obligations to Protect Women’s Rights in Relation to HIV

The General Comments acknowledge the intersection between women’s rights under sections (1)(d) and (e) of Article 14 and their enjoyment of the other rights guaranteed in the Maputo Protocol.  Accordingly, the General Comments repeatedly stress the obligation of States to take the necessary measures to respect related rights of women, including the rights to access to information (including on available health services, sex, sexuality, HIV, and sexual and reproductive rights) and freedom from discrimination. In relation to Article 14(1)(d) the Comments state that the right to self-protection and to be protected from infection is “intrinsically linked to other women’s rights including the right to equality and non-discrimination, life, dignity, health, self-determination, privacy and the right to be free from all forms of violence.” General Comments, para. 11.

Information about One’s Own Health Status

The Comments provide fairly specific guidance on how States should fulfill their obligations under Article 14(1)(d) and (e).  The Comments state that Article 14(1)(e) “includes the rights of women to access adequate, reliable, non-discriminatory and comprehensive information about their health.”  Id., para. 13.  The Comments provide a non-exhaustive list of specific procedures falling within this right: access to HIV testing, CD4 count, viral-load, tuberculosis and cervical cancer screening as well as pre and post-test counseling. Id.  Rather than merely stating these procedures are to be applied in a non-discriminatory manner, the Comments explicitly state that these procedures are to be available “to all women irrespective of their marital status, including: young and adolescent women, older women, rural women, women who engage in sex work, women who use drugs, women living with HIV, migrant and refugee women, indigenous women, detained women, and women with physical and mental disabilities,” highlighting groups of women who have historically faced difficulty accessing reproductive health services due to physical access issues and social stigma.  Id., para. 15.  See also, Amnesty International‘I am at the lowest end of all’ : Rural women living with HIV face human rights abuses in South Africa (2008).

Information about the Health Status of One’s Partner

The Comments go into particular detail discussing the right to be informed of the health status of one’s partner.  Knowledge of one’s partner’s HIV-positive status can have serious implications for women’s rights. In some communities, men conceal their HIV positive status from their partners, putting their partners at risk of becoming infected themselves. See, e.g., Human Rights Watch.  But as the Comments note, “[c]aution should be exercised in relation to the conditions and environments under which the right to be informed on the health status of one’s partner may be exercised, in particular, where the revealing of a partner’s health status may result in negative consequences such as harassment, abandonment and violence.”  General Comments, para. 17.  Human rights organizations such as Human Rights Watch have found that in some Sub-Saharan African communities, women are blamed for infecting their partners with HIV—even where this is not actually the case—resulting in domestic violence and widows being forcibly evicted from their homes by their deceased husband’s relatives where the husband has died of AIDS.

Thus, the Comments stress that the decision to inform someone of his/her partner’s HIV-positive status “should be made in line with international standards” and in accordance with a number of principles articulated in the Comments.  General Comments, para. 19.  Among these principles are that “counselling of the HIV-positive person has failed to achieve appropriate behavioral changes,” “a real risk of HIV transmission to the partner(s) exists,” and follow-up is provided to ensure “the person living with HIV is not at risk of physical violence resulting from the notification.” Id.  The Comments also expressly state that “the revealing of a person’s health status by a third party outside the ambit of the abovementioned guidelines is unlawful and may lead to penal sanctions.” Id.

Access to Health Education and Services

Significant attention is devoted to States’ obligations to provide access to information and health services.  States should provide facts and rights-based information on HIV prevention and sexual and reproductive rights, including at the primary and secondary school levels.  In order to address the social context found in many States that “perpetuate[s] stereotypes harmful to women’s health and well-being,” these information programs “should address all taboos and misconceptions relating to sexual and reproductive health issues.” Id., para. 26.  This line of reasoning is not new; human rights treaties such as the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) obliged States to take all necessary measures to eliminate harmful traditional and cultural stereotypes that result in discrimination against women.  The General Comments also state that Article 14(1)(d) and (e) requires States to allocate adequate resources, acknowledging that women—particularly women living in rural communities—face difficulty accessing health services where health clinics are located far away and/or lack adequate resources. General Comments, paras. 24, 48.

State Implementation of the Maputo Protocol

The Comments provide that “failure by a State Party to comply with Article 14(1)(d) and (e) as clarified and enumerated in these General Comments will amount to a violation of the provisions of the said article.”  Id., para. 50.  The extent to which the Comments will be influential, however, is still an open question.  Implementation of the Maputo Protocol has been an issue since the Protocol entered into force in 2005.  To date, only twenty-eight of the fifty-four Member States of the African Union have ratified the Protocol, while an additional eighteen have signed without ratifying.  A number of States have made reservations to Article 14, although these largely have to do with Article 14(2), which addresses abortion.  Meanwhile, the Special Rapporteur on the Rights of Women has noted that no State Party has of yet complied with the African Commission’s guidelines in regards to discussing legislative and other measures adopted in relation to the Protocol in their State reports.

For additional information on the Maputo Protocol and the African Commission see Solidarity for African Women’s Rights, A Guide to Using the Protocol on the Rights of Women in Africa for Legal Action; Center for Reproductive Rights, The Protocol on the Rights of Women in Africa: An Instrument for Advancing Reproductive and Sexual Rights; and the IJRC page on the African Human Rights System.