HIV/AIDS Legal Audit of Ghana laws and policies

1. HIV/AIDS Legal Audit of Ghana laws and policies 9th March 2010 Nana Oye Lithur Antonia Clarke Betty Akumatey Wendy Abbey Emmanuel Howard

2. Introduction • Legislative Audit • Purpose: to identify and assess the content and implementation of HIV and AIDs related laws in Ghana and assess compliance with intl. law and the extent to which socio-cultural norms enhances HIV vulnerability • Two substantive parts: • Chapters relating to specific areas of legal governance; and • Assessment of Institutions mandated to protect human rights • Chronology of laws and policies

3. Methodology • The Legislative Audit process • Identified laws, desktop research of current laws and policies, qualitative analysis for scope and efficacy of implementation • Conducted interviews with state, civil society implementators and reviewed Annual Reports from 2007 of key institutions • Case studies collected from primary and secondary sources including interviews with various stakeholders and FGDs with MARPS and traditional authorities. Secondary sources included media releases and newspaper reports • For institutional assessment ,28 insts. targeted, questionnaires were administered to 16 institutions and interviews conducted with 5 institutions from the justice, civil society, government, faith based orgs. • Pre-validation meeting with stakeholders to test research tools • Limitations: • Time and resource constraints, • Obtaining information on implementation of laws

4. PART I Legal Audit Chapters

5. Introduction (cont.) Sexual and Transmission Offences Anti-discrimination Privacy and Confidentiality Criminalised PLHIV Legislative Audit Chapter content Employment Prison/ Correctional Law Regulation of Healthcare Professionals and Ethical Research Public Health Customary tradnal Practices Gender Children and OVCs

6. Anti-discrimination • Positive Aspects of normative framework: • General Protection (Art. 15, 17, 29 Constitution, Persons with Disability Act) • National HIV/AIDS Policy: objectives include reducing S&D, respecting rights of PLHIV • Workplace and healthcare policies prohibit S&D • General law mandates representative complaints, speedy redress, free legal assistance, confidentiality of proceedings (HCCPR, CHRAJ Act) • General protection of human rights with power to investigate (CHRAJ)

7. Anti-discrimination • Gaps: • No protection from S&D on basis of profession (e.g. CSW) • Pre-employment screening for HIV prohibited but still occurs (Police Service, Armed Forces) • Potential for S&D under Infectious Diseases Ordinance and Immigration Act eg. Right to abode status of foreign nationals revoked by HCt.,if person’s activities prejudicial to public health, restrictions to personal liberty for PLHIVs under art. 14 of 1992 constitution • Criminalisation of particular groups (e.g. MSM and CSWs) • No specific laws regarding PLHIV, no guidelines from CHRAJ or Legal Aid to facilitate free legal assistance for PLHIVs

8. Sexual and Transmission Offences • Positive Aspects: • Transfer of HIV is not a unique offence under Criminal Offences Act (incorporated as harm, reducing S&D) • Intentional, willful transfer of HIV by a sexual partner is a form of domestic violence (Domestic Violence Act) • Several provisions in place to protect against exploitation (anti-child labour and human trafficking laws)

9. Sexual and Transmission Offences • Gaps: • No legal provisions on transmission of HIV and unclear law regarding punishment for willful and negligent transmission of HIV • Unclear reconciliation between willful and consensual transmission (e.g. between spouses and discordant spouses, an issue for HIV) • Enhanced vulnerability of HIV partner due to Matrimonial Causes Act, marriage null and void on basis of HIV • Connection between exploitation, trafficking and HIV not researched, no legal provisions • No law or policy mandating victims of sexual violence who may be exposed to HIV infection to be treated with PEP, no guidelines by GHS on how healthcare facilities should treat rape and sexual abuse victims, protocol for gender-based violence?

10. Privacy and Confidentiality • Positive Aspects: • Confidential communications protected (Constitution, Evidence Decree) • Media and healthcare law/policies uphold privacy, ref. to Data protection Act, Electronic Comm. Act,2008 Natl. Comm. Reg.2003, LI. 1719(categories of persons who may receive info and cannot disclose clearly outlined by law) • Prohibition on disclosure to sexual partner by healthcare professionals covered by law but Evidence Decree, GHS Code of Ethics conflicts with HIV Policy on disclosure • Privacy in general proceedings (HCCPR, CHRAJ Act) • Access to confidential sexual and reproductive health services (National Guidelines on HIV Counseling and National Reproductive Health Policy)

11. Privacy and Confidentiality • Gaps: • Partners who are cohabiting at risk of breach of privacy, they do not have the same confidentiality privileges implications for protection from HIV infection • No explicit guidelines on the media respecting right to privacy • No sanctions for health workers who fail to respect privacy • No protection on the basis of sexual orientation, Natl. HIV/AIDs Policy does not identify MSM as a ‘vulnerable’ group. • Lack of public awareness on privacy provisions • Lack of HIV/AIDS specific law

12. Case Study: Access to PEP for rape victims As part of its HIV/AIDS anti-stigma project, CDD Ghana undertook a one month anecdotal monitoring exercise on selected Magistrate, Circuit Courts and Police Stations in the Greater Accra and Eastern Region in November 2009. The data, although not representative, showed several deficiencies in the treatment of rape and defilement cases. In the Koforidua Municipality, for example, the report showed that in four defilement and two rape cases, the victims were sent to the hospital for evaluation, but none were referred to an HIV/AIDS Centre for PEP within the 72 hours stipulated period. Furthermore, neither the police nor victims were aware of the existence of PEP. SOURCE: CDD Anti-Stigma Project, Report on Court Monitoring, November 2009.

13. Criminalisation of MARPs:MSM, CSW, FSW, IDU,PLHIVs • Positive Aspects: • It is not illegal to be a prostitute in Ghana and criminals are granted necessities of health and life • There is no discrimination amongst victims of sex offences from specific groups in the Criminal Offences Act • MOH facilitates distribution of condoms, there is no law that either provides for or prevents condom distribution • Presidential Pardon is available for compassionate release of prisoners • Under Narcotics Act an accused can be granted a lighter sentence where special circumstances exist but otherwise there is no diversion to healthcare sector under Criminal Offences Act • Mental Health Decree provides for rehabilitation of addicted IDUs

14. Criminalised MARPS • Gaps: • Criminalisation of CSW,MSM,IDUs discourages them from seeking treatment • Sentencing administered at judge’s discretion and no diversion to healthcare sector • No clear referral of convicted IDUs for treatment • Inadequate research and information on IDUs and no needle exchange programme • Homosexuality criminalised (Criminal Offences Act) and heavily stigmatised • No law to ensure access to PEP • GAC’s NSF II pledge to protect rights of MARPs not fully fulfilled

15. Prison/Correctional Laws • Positive Aspects: • Informal access to education in prisons • Draft HIV/AIDS Policy for Prisons in place • Prison Policy mandates counselling and provision of information on HIV/AIDS • Availability of VCT • Availability of treatment • Confidentiality of status maintained by medical examiner • Presidential Pardon may authorise release on compassionate grounds

16. Prison/Correctional Laws • Gaps: • No supply of HIV prevention items such as condoms, bleach or clean syringes for prisoners • Disclosure of status can occur unintentionally (exclusion from certain prison activities) • No legal protection for prisoners who are subject to rape, sexual violence and coercion and may contract the HIV virus • TB and AIDs highest causes of deaths in prisons

17. Case study on provision of condoms in prisons The GPS were interviewed about the means in place to prevent the transmission of HIV/AIDS in prisons. When asked specifically about the distribution of condoms in all-male prisons, the GPS responded that “homosexuality is illegal in Ghana…giving condoms to inmates implies the Ghana Prison Service is condoning an illegality.” Instead, the GPS focuses on education to prevent HIV transmission. Whist education plays a key role in preventing transmission, the failure of the GPS to cover all possibilities of transmission means that their approach is inadequate. SOURCE: Joanne Bennett Jeffers, Maj-Britt Dohlie and Nana OyeLithur. 2010. Assessment: Legal and Regulatory Framework Affecting Treatment of and Services for Most At Risk Populations in Ghana. Washington, DC: Futures Group, Health Policy Initiative, Task Order 1.

18. Employment • Positive Aspects: • National HIV/AIDS Policy prohibits pre-employment screening • All workplaces must be clean and sanitary (Labour Act) • Worker’s Compensation legislation could be used to provide remedies for occupational transmission of HIV • Broad prohibition on unfair termination (Labour Act) • Workplace Policy protects social security of HIV+ workers • Provision of general information to workers (including roaming workers) • No exclusion from certain professions on basis of sero-status • Encouragement of private companies to develop HIV-specific workplace policies

19. Employment • Gaps: • Lack of Policy implementation re: screening (e.g. Armed Forces) • No employment security provisions relating to HIV status • No specific laws for HIV/AIDS-related employment issues

20. Public Health • Positive Aspects: • Prohibition on segregation except where it is in public interest (Infectious Diseases Ordinance) • Provision of information, including safe sexual practice education (Reproductive Health Strategy) • Quality assurance standards for health service providers • Guidelines for provision of ART • Screening of blood products (National Blood Policy) • National HIV/AIDS Policy mandates pre- and post-test counselling

21. Public Health • Gaps: • Basis of segregation “in the public interest” not clearly defined • No general duty to provide HIV/AIDS-related information to general public • No law or policy that mandates informed consent to HIV testing • No formal legal instrument to govern blood donation

22. Regulation of Healthcare Professionals and Ethical Research • Positive Aspects: • Remedies offered for breach of health professional standards • Independent body for complaints (CHRAJ, MDC, NMC) • Few limitations on media through censorship legislation • Confidentiality of research participants ensured

23. Regulation of Healthcare Professionals and Ethical Research • Gaps: • No legal basis to ensure scientific validity of research • No legal protection for research participants • There is limited knowledge about the ability to file complaints

24. Children and OVCs • Positive Aspects: • Various legal and policy frameworks in place to protect children and prevent OVCs from exploitation (incl. mistreatment, defilement, trafficking) • Policies in place to educate children on HIV/AIDS-related issues • National policy (overseen by GAC) to treat OVCs affected by HIV and educate communities • Violence against girls is criminalised and policies in place to protect them • Policies to end discriminatory customary practices (e.g. forced marriage)

25. Children and OVCs • Gaps: • No legal framework for protection of children affected by HIV/AIDS leads to lack of policy implementation • Children are treated no differently than adults in the healthcare system • No clear guidelines for PEP for child victims of sexual abuse • Ineffective implementation of laws and policies to protect children from labor, child trafficking, sex offences • No HIV/AIDS-specific education

26. Case study on sex offences and children Defilement cases are sometimes settled out of court or not prosecuted because parents of victims are pressured not to or are given monetary compensation by perpetrators. Ghana’s Third, Fourth and Fifth Report for UN CEDAW, 2006.

27. Gender • Positive Aspects: • Several policies in place to address gender issues • Policy to educate women on health-related issues • Policy on PMTCT • Criminalisation of abuse of women, including sexual abuse by a husband or de facto partner (Criminal Offences Act, Domestic Violence Act) • Development of microfinance projects

28. Gender • Gaps: • Inadequate implementation of laws to protect women • Gender inequalities and problems with socio-cultural norms • Need for education programs to address violence against women

29. Case Study on forced marriage and abduction CASE STUDY: Forced marriage A 19 year old girl, MahadSeidu was working in Accra as a head porter. She was kidnapped, tied in chains, padlocked and concealed under the seat of a tro-tro bound for a location 723km north of Accra. She was to be forced into marriage with a business man. A team of policemen from the MTTU rescued her before the truck set off and arrested two men. The kidnappers claimed to have been sent by the girl’s parents to Accra to take her back to the village to be married off. They were successfully prosecuted, convicted and sentenced. SOURCE: HRAC, ‘Report on Policy Mapping Study into Existing Legal and Policy Framework Addressing Violence Against Girls in Schools.’ 2010.

30. Recommendations for Legislative and Policy Change • Need for HIV/AIDS-specific law • More focus on rights of MARPs and de-criminalisation of their activities • Specific law on discrimination • Repeal article 14 on restrictions to personal liberty • Effective monitoring of laws and policies to strengthen protection of PLHIVs and reduce vulnerability to HIV • Amend laws that perpetuate discrimination against PLHIVs, eg., MCA • Education and sensitisation of communities and PLHIVs on the rights of PLHIV • Clarification of laws and policies relating to HIV/AIDS • Legal empowerment of women

31. Recommendations for Legislative and Policy Change • CHRAJ, Legal Aid Scheme, DOVVSU to facilitate free legal resource for PLs and MARPS • Review policies on pre-employment screening • Review policy on pre-employment screening • Clarify law and policy on willful, negligent, unintentional transmission of HIV and disclosure of HIV status to co-habiting partners and spouses • Provide PEP on national basis under the Ghana Health Service in collaboration with DOVVSU for victims of sexual abuse • Strengthen privacy and confidentiality laws to protect rights of PLHIVs • Prison Service should consider provision of condoms for prisoners • Justice system must consider diversion programmes for IDUs as an option to incarceration

32. PART II Institutional Responses

33. PART III Conclusion

34. Conclusion • Is an HIV/AIDS specific law needed to ensure effective implementation of policy and protection of the rights of PLHIV? • Government should use this study as a basis for legislative reform and policy development • Call for greater focus on MARPS groups

35. Acknowledgements • HRAC compiled Audit with help of many people at various organisations: • MDAs (MoJ, MOE, MOH, MCC, GHS, CHRAJ, NCCE, Ghana Police Service, GPS, Ghana Labour Commission, National Media Commission, GAC, LAS, DoSW, District and Juvenile Courts,GHS) • NGOs (CDDG, USAID, CPEHR, Ark Foundation,WISE, World Vision Ghana) • Multi-lateral Organisations(USAID, UNICEF, UNAIDS) • Others (Lithur Brew Law Firm, Korle Bu Teaching Hospital, Fever’s Unit)

36. Questions?