International Journal of Gynecology and Obstetrics 127 (2014) 305–308

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International Journal of Gynecology and Obstetrics

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SPECIAL ARTICLE

The General Comments on HIV adopted by the African Commission onHuman and Peoples’ Rights as a tool to advance the sexual andreproductive rights of women in Africa

Ebenezer Durojaye ⁎Community Law Centre, University of the Western Cape, Cape Town, South Africa

⁎ Community Law Centre, New Social Sciences BuildCape, Private Bag X17, Bellville 7535, Cape Town, Southfax: +27 219592411.

E-mail address: ebenezerdurojaye@gmail.com.

http://dx.doi.org/10.1016/j.ijgo.2014.06.0210020-7292/© 2014 International Federation of Gynecology

a b s t r a c t

a r t i c l e i n f o

Article history:Received 28 February 2014Received in revised form 9 June 2014Accepted 4 August 2014

Keywords:African Commission of Human andPeoples’ RightsHIV/AIDSHuman rightsMaputo ProtocolSexual and reproductive rights

The present article examines the contents and importance of the General Comments adopted by the AfricanCommission on Human and Peoples’ Rights on Article 14 (1) (d) and (e) of the Protocol to the African Charteron the Rights of Women in Africa as a tool for advancing women’s rights in the context of HIV. Given thatdiscriminatory practices in all facets of life have continued to limit African women’s enjoyment of their sexualand reproductive rights and render them susceptible to HIV infection, it becomes vital that African governmentsadopt appropriate measures to address this challenge. The provisions of the Protocol on the Rights of Women inAfrica present great opportunities for this to be realized. The radical and progressive provisions of the Protocolwill be of no use to women unless policymakers and other stakeholders have a clear understanding of themand are able to implement them effectively. The adoption of the General Comments is a welcome development,and states and civil society groups must maximize it to advance women’s rights.© 2014 International Federation of Gynecology and Obstetrics. Published by Elsevier Ireland Ltd. All rights reserved.

1. Introduction

According to the Joint United Nations Program on HIV/AIDS(UNAIDS), approximately 35 million people were living with HIV atthe end of 2012 [1]. While this would seem to be a slight improvementfrom a decade ago, the majority of people living with HIV still inhabitSub-Saharan Africa. More disturbing is that women, especially youngwomen of reproductive age, continue to bear the greatest burden ofthe epidemic in Africa. It is estimated that 60% of those infected withHIV in the region are women [1]. Several factors including sociocultural,economic, and biological continue to render women susceptible to HIVin the region.

Although great strides have beenmade in the prevention of mother-to-child transmission of HIV, disparities exist across the region. Whilecountries like Zambia, Namibia, and Botswana havemet the goal of pro-viding antiretroviral medicines to 90% of pregnant women living withHIV, other countries such as Angola, Nigeria, Benin, Ethiopia, and Chadare still lagging behind [1]. This indicates that African governmentsare not living up to the promises and commitments they made at vari-ous international and regional meetings and forums. A study showedthat of the 19 000 maternal deaths caused by HIV/AIDS worldwide,Sub-Saharan Africa accounts for 17 000 (90%) deaths [2]. Furthermore,

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in countries such as Botswana, Lesotho, Swaziland, Namibia, andSouth Africa, an increase in the maternal mortality ratio from 1990−2010 is largely attributed to the HIV/AIDS epidemic [3]. This underliesthe point that addressing the HIV epidemic among women willultimately improve their sexual and reproductive well-being.

In 2001, through the UN Declaration of Commitment on HIV/AIDS,the international community emphasized that gender equality andempowerment of women are crucial to the reduction of women’svulnerability to HIV [4]. A decade later, through the 2011 UN GeneralAssembly Political Declaration on HIV/AIDS [5], the internationalcommunity agreed to some targets, including zero HIV discrimination,to eradicate HIV worldwide. For this to become a reality, however,greater attention will need to be given to addressing gender inequality.This was further reiterated at a follow-upmeeting to the Abuja Declara-tion by African leaders in July 2013 [6]. At this meeting, African leadersonce again recommitted themselves to addressing the gender dimen-sion of the HIV epidemic. While these declarations and commitmentsare promising, the situation in reality would seem to show thatAfricanwomen are far from enjoying equal rights with their male coun-terparts as discrimination remains the norm in virtually every facet ofhuman endeavor.

With the entry into force of the Protocol to the African Charter onHuman and Peoples’ Rights on the Rights of Women in Africa (the Pro-tocol, also known as the Maputo Protocol) in 2005, great opportunitiesexist for African governments to address the gender dimension of theHIV epidemic. The Protocol, hailed for its radical stance, contains a num-ber of important provisions crucial to advancing women’s fundamental

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rights in general and sexual and reproductive rights in particular [7].Indeed, the Protocol remains the only human rights instrument that ex-plicitly recognizeswomen’s vulnerability to HIV as a human rights issue.Article 14(1) (d) protects a woman’s right to self-protection and to beprotected from HIV, while paragraph (e) protects a woman’s right toknowher status and that of her partner [8]. These provisions donot clar-ify what measures and steps African governments must adopt to fulfilltheir obligations in this regard. Hence, during its 52nd Ordinary Sessionin October 2012, for the first time in its 25-year history, the AfricanCommission on Human and People’s Rights (the Commission) adoptedGeneral Comments to specifically clarify the nature of states’ obligationsunder Article 14 (1) (d) and (e) of the Protocol [9].

The present article examines the contents and importance of theCommission’s General Comments on Article 14 (1) (d) and (e) of theProtocol as a tool for advancing women’s rights in the context of HIV.Given that discriminatory practices in all facets of life continue to limitAfrican women’s enjoyment of their sexual and reproductive rightsand further predispose them to HIV infection, it becomes crucial thatAfrican governments adopt appropriate measures to address thischallenge. The Protocol on the Rights of Women in Africa presentsgreat opportunities for this to be realized. However, its radical andprogressive provisions will amount to paper promises if policymakersand other stakeholders do not have clear understanding of them andare not able to implement them effectively.

2. Background to the General Comments

The rationale for the General Comments developed during the NGOForum that took place prior to the 51st Ordinary Session of the Commis-sion, held in Banjul, The Gambia, fromApril 18 toMay 2, 2012. The NGOForum is the largest gathering of nongovernmental organizations andcivil society groups in Africa. Thereafter, an initial draft of the GeneralCommentswas produced by the Centre for Human Rights at theUniver-sity of Pretoria, South Africa. This was followed by two separate meet-ings—one in Pretoria, South Africa, and the other in Dakar, Senegal—todiscuss and build on the initial draft. The meeting in Pretoria wasattended by academics, experts on sexual and reproductive rights, andcivil society organizations focusing on women’s rights and HIV mainlyfrom Eastern and Southern Africa. At the end of this meeting, anotherdraft was produced, whichwas thenwidely circulated across the regionfor comments. The second meeting in Dakar comprised academics,experts on sexual and reproductive health and rights, and civil societygroups working on women rights and HIV mainly from West andCentral Africa. Representatives of two special mechanisms of theCommission—the Special Rapporteur on the Rights of Women inAfrica and the Committee on HIV—also participated in this meeting,which produced two drafts, one in English and the other in French.These were considered and adopted with minor amendments by theCommission at the 52nd Ordinary Session, held in Yamoussoukro,Cote d’Ivoire, October 9–22, 2012.

3. Contents of the General Comments

The General Comments are divided into four parts: introduction,normative content, general state obligations, and specific state obliga-tions. In the introduction, the Commission notes that women experi-ence various forms of discrimination and that these prevent themfrom realizing their “right to self-protection and to be protected” [9].The Commission recognized that African women have the “right to thehighest attainable standard of health which includes sexual and repro-ductive health and rights” [9] (para. 5). It further notes that while thefocus of the General Comments is Article 14 (1) (d) and (e), this provi-sion “should not be read and understood in isolation from other provi-sions of the Protocol dealing with other aspects of women’s humanrights” [9] (para. 7). This is a crucial clarification by the Commissionthat will buoy a better understanding of the Protocol. It would seem to

emphasize the indivisibility, interdependence, and interrelatedness ofall human rights. Moreover, this observation of the Commission accordswith other UN treaty monitoring bodies such as the Committee onEconomic, Social and Cultural Rights (CESCR) and the Committee onthe Elimination of Discrimination against Women (CEDAW), both ofwhich have noted that the enjoyment of the right to health of individ-uals, in general and for women in particular, is dependent on otherrights such as life, dignity, privacy, and nondiscrimination. Indeed, insome of its decisions, such as Social and Economic Rights Action Centre(SERAC) and Another v Nigeria[10] and International Pen and Others vNigeria [11], the Commission has applied the indivisibility approachto hold that a violation of the right to health will infringe the right tolife and other rights. This would require African governments to adopta broad but not narrow approach to interpreting Article 14 (1) (d)and (e).

3.1. Normative content

The Commission explains that while the Protocol distinguishes be-tween “the right to self-protection and the right to be protected fromHIV in Article 14 (1) (d), this provision is interpreted to refer to States’overall obligation to create an enabling, supportive, legal and social en-vironment that empowers women to be in a position to fully and freelyrealise their right to self-protection and to be protected” [9] (para. 10).Such an enabling environment must respect women’s sexual autonomyand discourage coercive testing or treatment in general. This clarifica-tion is in accord with the International Guidelines on HIV/AIDS andHuman and Rights [12] and the views of other commentators whohave argued that a friendly legal environment will go a long way to ad-dress discriminatory practices against women, especially in relation toHIV [13]. Ultimately, this will minimize human rights violations thatare often experienced by women. Creating an enabling environmentwherewomen’s fundamental rights are respectedwill involve repealingoutdated laws and practices that are potentially discriminatory andenacting laws and policies that protect women from discrimination. Inaddition, states must refrain from enacting laws that may further fuelor perpetuate discrimination in society. In this regard, laws that crimi-nalize HIV transmission, including perinatal transmission of HIV maybe counterproductive and fuel discriminatory practices [14].

According to the Commission the “right to be informed on one’shealth status includes the rights of women to access adequate, reliable,non-discriminatory and comprehensive information about their health”[9] (para. 13). On the other hand, “the right to self-protection and to beprotected includes women’s rights to access information, education andsexual and reproductive health services. The right to self-protection andthe right to be protected are also intrinsically linked to other women’srights including the right to equality and non-discrimination, life,dignity, health, self-determination, privacy and the right to be freefrom all forms of violence” [9] (para. 13). The General Commentsdiscourage disclosure of HIV status unless done in accordance with in-ternational standards. Specifically, the Commission refers to the excep-tion for disclosure as provided by the UNAIDS international guidelineson HIV/AIDS [12]. Disclosure of HIV status remains a controversialissue in many parts of Africa owing to the stigma and discriminationstill associated with the epidemic.

Women are more likely to experience violence and human rightsabuses when their partners become aware of their HIV status [15].This has made it difficult for partners to share their HIV status witheach other. Healthcare providers may compromise the confidentialityof patients, particularly female patients, by disclosing their HIV statusto their partners or relatives. This is ethically wrong and a violation ofthe right to privacy and patient confidentiality. Hence, the GeneralComments note that disclosure of HIV status should only take placeafter attempts have beenmade to counsel the infected person, counsel-ling has yielded no result or the infected person has refused to disclosetheir status, there is a real risk of infecting others, and the infected

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person is not likely to be at risk of violence resulting from the notifica-tion [9] (para. 19).

3.2. General obligations

Consistent with obligations under international human rights law,the General Comments reiterate that African states have obligationsunder Article 14 (1) (d) and (e) to respect, protect, promote, and fulfilwomen’s rights in the context of HIV. The Comments explain that theobligation to respect “requires States to refrain from interfering directlyor indirectly with the rights to self-protection, to be protected, and theright to be informed on one’s health status and the health status ofone’s partner” [9] (para. 21).They further note that the obligation toprotect “requires States to take measures that prevent third partiesfrom interfering with these rights” [9] (para. 22). The obligation to pro-mote “requires States to create legal, social and economic conditionsthat enable women to exercise their rights in relation to sexual and re-productive health” [9] (para. 23).While the obligation to fulfil “requiresStates to adopt all necessary measures, including allocation of adequateresources for the full realisation of the right to self-protection and to beprotected and the right to be informed on one’s health status and thehealth status of one’s partner” [9] (para. 24). This is an indication thatwomen cannot be protected from HIV infection unless African govern-ments commit more resources toward realizing universal access tosexual and reproductive health services.

3.3. Specific obligations

The General Comments further explain that states have specificobligations under Article 14 (1) (d) and (e). These include providingaccess to information and education, which “should address all taboosand misconceptions relating to sexual and reproductive health issues,deconstruct men and women’s roles in society, and challenge conven-tional notions of masculinity and femininity” [9] (para. 26). This impor-tant clarification has become necessary given the challenges thatwomen in general, and young women in particular, often encounterregarding access to sexual and reproductive health information in theregion. In essence, unless women and girls have access to sexual andreproductive health information, they will be unable to enjoy the rightsguaranteed under Article 14 (1) (d) and (e).

In language similar to General Comment 14 of the CESCR [16], theCommission notes that states are to ensure “availability, accessibility,acceptability and quality sexual and reproductive health care servicesfor women” [9] (para. 29). States are further enjoined to create anenabling legal and policy framework, including a supportive, legal andsocial environment that allows women to control their sexual andreproductive choices to prevent HIV transmission [9] (para. 33).Adopting a holistic approach to safeguardingwomen’s rights in the con-text of HIV, the Commission requires states to also provide access to sex-ual and reproductive health procedures, technologies, and services thatare women-centered, appropriate and evidence based; remove barriersto sexual and reproductive health rights; commit resources to provide acomprehensive range of services for the prevention and treatment ofevery person’s sexual and reproductive health; and provide redress forsexual and reproductive health violations [9] (paras 30−32).

One of the major threats to women’s protection from HIV is theirinability to enjoy their sexual and reproductive rights. Often, women—particularly young women—lack access to basic information abouttheir sexual and reproductive well-being. Barriers to sexual and repro-ductive health information and services for young women includejudgmental attitudes of healthcare providers, religious or customarypractices, and laws that often require parental consent before treatmentis provided [17]. During the International Conference on Population andDevelopment (Cairo, 1994) [18] and the Fourth World Conference onWomen (Beijing, 1995) [19], the international community affirmedthat women should enjoy their sexual and reproductive health and

rights without hindrances, discrimination, or violence. It was furtheragreed that states should prioritize sexual and reproductive healthand rights of women in laws and policies at the national level.

Years after these crucial meetings in Cairo and Beijing, Africanwomen are still subjected daily to inhuman and degrading culturalpractices that further predispose them to HIV infection. In some coun-tries in the region, laws still exist that perpetuate inequality by treatingwomen as minors or second-class citizens [20]. Respecting the sexualand reproductive health and rights of women is crucial to reducing sus-ceptibility to HIV. Moreover, access to vital information on sexual andreproductive health for young women will empower them to make in-formed decisions about their sexual well-being. By calling on Africangovernments to invest in sexual and reproductive health services andestablish youth-friendly services in their jurisdictions, the Commissionwould seem to be echoing the Abuja Declaration [21]. At this forum,African governments agreed to commit at least 15% of their annualbudgetary allocations to the health sector to combat the HIV epidemic.The General Comments must serve as a wake-up call to African govern-ments and propel them to recommit themselves to the promises madein Cairo and Beijing.

Recent decisions in some African countries show that courts arebeginning to take a proactive stance in striking down laws and practicesthat continue to discriminate against women. Examples of such deci-sions include the Bhe case in South Africa where the ConstitutionalCourt rejected and declared as unconstitutional the primogeniturecustomary practice, which tends to favor male children over female ininheritancematters [22]. According to the court, this practice is discrim-inatory and violates the equality clause in the South African Constitu-tion. More recently, the Court of Appeal in Botswana has struck downa similar customary practice that denies the rights of inheritance to a fe-male child [23]. The court held that given Botswana’s commitment tohuman rights standards evidenced by ratification of international andregional human rights instruments, this discriminatory cultural practicecould not be justified. The court declared that the customary practice isinconsistent with the spirit and letters of the Constitution of Botswana.

4. How can the General Comments be used effectively?

While the General Comments are not a binding instrument, theyserve as an authoritative interpretation of Article 14 (1) (d) and (e) ofthe Protocol on the Rights of Women in Africa. This provides great op-portunities for civil society groups across Africa to engage with theirgovernments on their importance. Civil society groups and the Commis-sion will need to create awareness about the existence of the GeneralComments. In this regard, they can be used as a tool for advocacy andfor interaction with policymakers at national and regional levels. Itwill be necessary to organize a series of workshops or seminars wherethe importance of the General Comments is discussed.

The General Comments can be simplified or translated into locallanguages for wide distribution to organizations working on women’sissues in rural areas as well as policymakers and other stakeholders.This is crucial because most women in rural or disadvantaged areasoften lack formal education and are unable to assert their rights. Thus,they are susceptible to human rights abuses and HIV infection. Sadly,most of these women do not know how to seek redress for suchviolations. Human rights organizations can urge courts or quasi-judicial bodies such as National Human Rights Institutions (NHRIs)to adopt the General Comments as a standard-setting document onwomen’s rights in general andHIV in particular. The Commission shouldcontinuously engage with states and civil society organizations on theimplementation of the General Comments. More importantly, theCommission should require states parties to include in their reportsthe steps they have taken to effectively popularize and implement theprovisions of the General Comments in their jurisdictions.

The General Comments on Article 14 (1) (d) and (e) of the Protocolon the Rights of Women in Africa is an important milestone in the

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history of the Commission. It serves as an authoritative clarification ofthe obligations of African governments for the protection of womenfrom HIV infection. In addition, it creates an opportunity for Africangovernments to redouble their commitments to promoting andprotecting women’s rights in general, and sexual and reproductivehealth and rights in particular. However, the important clarificationsprovided by the Commission in the General Comments will amount tomere paper promises if adequate efforts are not made for implementa-tion at the national level. Thus, African governments and civil societyorganizations will need to forge good partnerships to ensure the fullimplementation of the General Comments at the grassroots level.

Conflict of interest

The author was involved in the drafting process of the GeneralComments.

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