Realising equality in access to hiv treatment for vulnerable and marginalised groups in africa

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E Durojaye?
1 Introduction
States should also take measures necessary to ensure for all persons, on a sustained and equal basis, the availability and accessibility of quality goods, services and information for HIV/AIDS prevention, treatment, care and support, including antiretroviral and other safe and effective medicines… (Revised Guideline 6 of the International Guidelines on HIV and Human Rights 2002)
Almost thirty years into the HIV/AIDS pandemic its negative effects (including loss of health, income and a source of living) have continued to threaten lives in most parts of the world, particularly sub-Saharan Africa. Although recent figures tend to show that the spread of the epidemic is declining or stabilising in many countries, the devastating effects of the epidemic have not abated. UNAIDS1 has reported that at the end of 2009 there were about 33 million people living with HIV worldwide. Of this figure, Africa accounts for about 23 million, that is, 68 percent of the people living with HIV.2 The report indicates that across the world, particularly in the hardest hit regions such as Africa, efforts targeted at reducing the spread of HIV are beginning to yield positive results. According to the report, HIV incidence has fallen by 25 percent between 2001 and 2009 in 33 countries, of which 22 are in sub-Saharan Africa.3 An estimated 2.6 million people were infected with HIV worldwide in 2009, about one fifth fewer than the 3.1 million people infected in 1999. In sub-Saharan Africa it is estimated that 1.8 million people were newly infected with HIV in 2009, fewer than the 2.2 million people newly infected in 2001.
More importantly, there have been remarkable achievements with regard to the number of people receiving HIV treatment worldwide. It is estimated that about 1.2 million people received HIV treatment in 2009 alone, representing an increase of about 30 percent in a single year.4 Overall, the number of people receiving HIV antiretroviral therapy in low and middle income countries has now increased to 5 million.5 This translates to about 35 percent of people in need of HIV treatment in the world. When compared with the about 230, 000 people receiving treatment in 2001, this is no doubt a significant improvement in ensuring access to treatment for those in need. This expansion in access to HIV treatment has led to about a 19 percent decrease in HIV-related deaths among children worldwide between 2004 and 2009.6 As the region hardest hit by the epidemic, sub-Saharan Africa recorded the greatest increase in the number of people receiving antiretroviral therapy in 2009, from 2.9 million people at the end of 2008 to 3.9 million people as at December of 2009, representing an increase of about 33 percent in a single year.7 Interestingly, the average number of people receiving treatment in sub-Saharan Africa is put at 37 percent (41 percent in Eastern and Southern Africa, and 25 percent in Western and Central Africa) compared with only 2 percent few years back.8 In some countries such as Botswana the antiretroviral therapy coverage has almost exceeded 90 percent, thus leading to sharp decline in AIDS-related deaths from 18, 000 in 2002 to 9, 100 in 2009.9
Despite these achievements, however, more efforts are still needed in Africa to realise universal access to HIV treatment for those in need. When compared with other regions (42 percent in Central and South America, 51 percent in Oceania, 48 percent in Caribbean and 19 percent in Eastern Europe and Central Asia), the number of people on ARV in Africa is still one of the lowest.10 More particularly, there is a need for African governments to improve access to HIV treatment for vulnerable and marginalised groups such as children, people living in rural areas, sex workers, men having sex with men (MSM) and prisoners.
Against this background, this article examines the relevance of the concept of equality in improving access to HIV treatment for vulnerable and marginalised groups in Africa. The article argues that though modest achievements have been made in expanding access to HIV treatment for those in need in Africa, this expansion has concentrated on the general population without focus on the needs of those most vulnerable and marginalised in society, especially children and sex workers. In conclusion, it is argued that if the aim of realising universal access to treatment for all by 2015 is to be achieved, it is imperative to ensure equal access to HIV treatment for disadvantaged groups such as children and sex workers.
2 The importance of equality in accessing health care services
Equality, like most legal terms, is incapable of a generally acceptable definition. This is because the term could mean different things to different scholars. However, it has been recognised that equality is tantamount to non-discrimination. Hence, an act of discrimination will lead to the violation of the right to equality.11 The principle of non-discrimination has been well recognised in most human rights instruments. For instance, article 2 of the African Charter on Human and Peoples' Rights (the African Charter) provides that every individual shall be entitled to enjoy all the rights guaranteed in the Charter without distinction as to race, sex, political belief, religious belief and other status.12 Furthermore, article 3 provides that all individuals shall be equal before the law and that they shall be entitled to equal protection of the law. In a number of cases the African Commission on Human and Peoples' Rights (the African Commission) has shed light on the importance of these provisions. For instance, in the Legal Resource Foundation v Zambia13, the Commission explained that the right to equality is important because people are expected to be treated equally before the law and are entitled to equal enjoyment of the rights available to other citizens. Moreover, the Commission noted that "equality or lack of it affects the capacity of one to enjoy many other rights".14 Similarly, the Human Rights Committee15 responsible for monitoring the implementation of the International Covenant on Civil and Political Rights (ICCPR) has noted that non-discrimination, together with equality before the law and equal protection of the law, forms a basic principle relating to the protection of human rights.

The classical conception of the notion of equality is often traced to Aristotle,16 who argues that likes should be treated alike and unlikes in proportion to their unalikeness. This has given rise to a distinction being made between formal and substantive equality. Formal equality - often referred to as mathematical, absolute or numerical equality - merely treats all members of society in the same way without taking into cognisance their specific differences. This approach is said to be blind to the socio-economic disparities that may exist in every society. Adherence to formal equality in the real sense does not guarantee true equality. Instead, it entrenches disparity. Dworking17 warning Americans that sameness of treatment does not ensure true equality and expresses the opinion that "we must take care not to use the Equal Protection Clause [of the 14th Amendment of the American Constitution] to cheat ourselves of equality". Implicit in this statement is that the mere assurance of (formal) equality may not address social injustice. On the other hand, the notion of substantive equality implies that every individual is treated in the same manner, taking into consideration each one's peculiar circumstances. In other words, substantive equality, differently from formal equality, aims at promoting social justice and egalitarianism in a society, particularly for the marginalised or vulnerable groups.18 The non-discrimination provisions guaranteed in the Convention on the Eliminations of All Forms of Discrimination against Women (CEDAW)19 and the Protocol to the African Charter on the Rights of Women (African Women's Protocol)20 are good examples of the notion of substantive equality.

Following from the above discussion, it is clear that realising equal access to health care for the disadvantaged groups in society requires that health care institutions must take into consideration the peculiar circumstances of these groups. In essence, a substantive equality approach in health care services is imperative to meeting the special needs of vulnerable and marginalised groups.21 Reinforcing this argument, Loenen has noted as follows: 22

a meaningful and convincing interpretation of the concept of discrimination starts from its historical genesis as principle directed at protecting groups, which have suffered from structural disadvantage, from patterns of exclusion, and not just from one negative incidental impact… Sensitive groups thus need stronger protection against classification with a negative impact… Such an asymmetrical conception of discrimination acknowledges harm caused by measures which disadvantage vulnerable and subordinate groups is, indeed, a greater evil which merits more suspicion than measures which disadvantage power and otherwise privilege groups.
It should be noted that the enjoyment of the right to health guaranteed in various human rights instruments23 can be realised only in the absence of any form of distinction or discrimination. For instance, article 12 of the International Covenant on Economic, Social and Cultural Rights (the ICESCR), the most comprehensive provision on the right to health, guarantees the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. According to the Committee on ESCR,24 the enjoyment of the right to health is dependent on other rights such as rights to life, privacy, dignity and non-discrimination. The Committee has further noted that an essential minimum core of the right to health includes realising access to health care services to all on a non-discriminatory basis. In the Committee's view, the Covenant proscribes: 25
any discrimination in access to health care and the underlying determinants of health, as well as to means and entitlements for their procurement, on the grounds of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, physical or mental disability, health status (including HIV/AIDS), sexual orientation, and civil, political, social or other status which has the effect of nullifying or impairing the equal enjoyment or exercise of the right to health.
More importantly, the Committee has reasoned that in realising the right to health for all, the equality of access to health care must be emphasised. Furthermore, with regard to access to health care services, states are obliged to eliminate discrimination on internationally prohibited grounds, especially the core content of the right to health. Undoubtedly, these explanations of the Committee tally with the notion of substantive equality in health care services.
With regard to the historically disadvantaged position of women, Cook and Howard have argued that developing an anti-discrimination theory can be useful in addressing the neglect of women's reproductive health and the detrimental impact of such neglect on the status of women in society.26 This is particularly true of the patriarchal nature of African society, where women's rights are accorded little or no respect, thus compromising their sexual and reproductive health needs. The decision of the South African Constitutional Court in the Minister of Health v Treatment Action Campaign and Others27 provides an indication of the relevance of equality to having access to health care services. In that case, the Court held that the failure of the South African government to provide antiretroviral therapy in public institutions to prevent mother-to-child transmission constituted a breach of its obligation under the national constitution and international law. Although the Constitutional Court did not directly apply the notion of equality in its judgment, nonetheless, the Court held that the failure of the South African government's policies to meet the need of those in dire need (HIV-positive pregnant women) rendered those policies unreasonable and constituted a breach of the government's obligation to realise the right to health of its citizens. This decision of the court would seem to lean towards the application of the principle of substantive equality in health care services.
More specifically, the Canadian Supreme Court has demonstrated the importance of substantive equality in access to health care services for vulnerable groups in Eldridge v British Columbia (Attorney-General)28. In that case, some of the issues before the Court were premised on whether or not sections 3, 5 and 9 of the Hospital Insurance Act and the Regulations infringed section 15(1) of the Canadian Charter of Rights by failing to require hospitals to provide medical interpreter services for the deaf. If the answer was in the affirmative, the Court wished to establish if the impugned provisions were saved under section 1 of the Charter. The Court held that the failure to make money available for sign-language interpretation that would equip hearing-impaired patients to communicate with health-service providers in the same way that unimpaired patients can, constitutes discrimination in violation of the Canadian Charter on Rights and Freedoms. According to the Court, the adverse effects of discrimination are relevant in the context of people with disabilities. The Court further explained that: 29
In the present case the adverse effects suffered by deaf persons stem not from the imposition of a burden not faced by the mainstream population, but rather from a failure to ensure that deaf persons benefit equally from a service offered to everyone. Once it is accepted that effective communication is an indispensable component of the delivery of a medical service, it is much more difficult to assert that the failure to ensure that deaf persons communicate effectively with their health care providers is not discriminatory. To argue that governments should be entitled to provide benefits to the general population without ensuring that disadvantaged members of society have the resources to take full advantage of those benefits bespeaks a thin and impoverished vision of s. 15(1). It is belied, more importantly, by the thrust of this Court's equality jurisprudence.


The relevance of this case is that it clearly requires states to do more than meeting the needs of the general population. They need also to take into cognisance the peculiar needs of some members of society who are vulnerable, disadvantaged or marginalised. This reasoning of the court is crucial to our discussion relating to ensuring equal HIV treatment for children, sex workers and men who have sex with men (MSM) in Africa. The discussion that follows will show that it is imperative for African governments, using the substantive equality approach, to improve access to HIV treatment for vulnerable and marginalised groups such as children and sex workers as a matter of obligation and in order to meet the target of universal access to health care for all by 2015.

3 Applying a rights-based approach to the access to HIV treatment for vulnerable and marginalised groups in Africa
It is widely agreed that realising access to treatment for all constitutes an integral part of the right to health. Echoing this position, the UN General Assembly has noted that access to treatment in the context of HIV/AIDS is one of the fundamental elements required if the world is to "achieve progressively the full realisation of the right of everyone to the enjoyment of the highest attainable standard of physical and mental health".30 This presupposes that a human rights approach must be adopted in the provision of health-related services, including access to HIV treatment. The question may then be asked: what does a rights-based approach to health services mean? Adopting a rights-based approach to health related services implies that all health policies, plans and programmes must be grounded on respect for people's fundamental.31 Moreover, it presupposes assessing and addressing the likely human rights implications of health decisions, plans or programmes. More importantly, a rights-based approach requires making human rights an integral part of the design, implementation, monitoring and evaluation of health-related policies and programmes.32
Some essential elements of a rights-based approach to health services include safeguarding human dignity, ensuring the provision of a health care system that is accessible to all, giving attention to gender-related issues, removing advertent or inadvertent discrimination in the ways in which services are rendered, and paying special attention to the rights of vulnerable and marginalised groups in society.33 As regards the last point, it is imperative to recognise and act upon the characteristics of those likely to be affected by health-related decisions, policies and programmes. In this regard, groups such as children (both male and female), adolescents, women and men, indigenous people, refugees, prisoners, immigrants and migrants, people with disabilities, sex workers and economically disadvantaged and other marginalised groups must be given special attention.
In many societies, vulnerable and marginalised groups are often disproportionately affected by health problems. While in some cases this situation may not be envisaged, it is generally agreed that overt or implicit discrimination will violate the fundamental rights of individuals.34 Although not all discrimination amounts to a violation of rights, an unjustified and unfair differential treatment will no doubt amount to a violation of human rights.35 Over the years, grounds for non-discrimination in the context of health-related services have evolved to include proscribing "any discrimination in access to health care and underlying determinants of health, as well as to means and entitlements for their procurement, on the grounds of race, colour, sex, language, religion, political or other opinion, national and social origin, property, birth … and other status".36
Mann has argued that most public health programmes and policies are replete with "inadvertent discrimination" to the extent that public health policies and programmes should be deemed discriminatory until otherwise proved.37 In other words, public health policies are potentially a threat to the enjoyment of human rights. This is often so because policymakers scarcely ever consider the human rights implications of public health policies or programmes. As stated above, while African governments have made positive efforts to realise access to HIV treatment for the general population, gaps still exist with regard to the position of vulnerable and marginalised groups. The next section of this article focuses on the situation of children and sex workers.

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