Relevance of the model law from a SADC perspective Regional justiciability of HIVAIDS issues

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Relevance of the model law from a SADC
perspective Regional justiciability of HIV/AIDS
issues

• A presentation by Justice Charles Mkandawire,
  Registrar SADC Tribunal
• Gaborone, Botswana 28 August 2009

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introduction

• Southern Africa retains highest HIV rates in the
  world
• Multi faceted approach needed which includes the
  contribution of law and policy
• Importance of law is that it provides for rights
  and duties that can be enforced by a court of law

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Purpose of presentation

• What rights and duties concerning HIV/AIDS accrue
  in SADC Law?
• Are HIV/AIDS issues justiciable before the SADC
  Tribunal?
• What difference does the Model law make to
  current SADC law on HIV/AIDS?

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Disclaimer

• This paper is a personal opinion and is not the
  opinion of the SADC Tribunal or any of its
  Members (Judges)

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The SADC Tribunal

• SADC Court of Justice
• Its mandate is to ensure adherence to and proper
  interpretation of the Treaty and subsidiary
  documents.
• Has jurisdiction over disputes between the
  Community and its employees between member
  states and between the citizens, legal persons
  and members states.
• Can also give advisory opinions when so requested.

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Sources of Law (HIV/AIDS)

• Article 5(1)(j) of the Treaty provides that one
  of the objectives of SADC shall be combating of
  HIV/AIDS.
• Are objectives of the Treaty justiciable?
• In the cases of Mike Campbell Others v Zimbabwe
  and in Thembani v Zimbabwe the Tribunal held that
  the principles and objectives of the Treaty could
  form the basis of a claim.

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Sources of law (contd)

• Maseru Declaration on HIV/AIDS
• provides a clearer platform upon which the
  justiciability of HIV/AIDS issues can be brought
  to the fore.
• soft law
• In practice the fine line between soft law and
  hard law is oft blurred. A court can consider
  any type of commitments to be binding.

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Sources of law (contd)

• Protocol on Health
• Came in to force on 14 August 2004
• Through Article 10 member states commit to deal
  effectively with the HIV/AIDS epidemic through
  harmonization of policies aimed at prevention and
  control, through the development of prevention
  and management approaches amongst other things.
• does not go into detail with regard to issues
  such as discrimination, testing, confidentiality,
  care workers, orphans and other such issues that
  are pertinent when dealing with HIV/AIDS.
• lacking from this protocol are clearly defined
  duties on the part of governments and the
  corresponding rights that accrue to the citizens
  of the Community.

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Sources of law (contd)

• Protocol on Gender and Development
• Not yet in force, no ratifications at all
• In Article 27 of this protocol, member states
  commit to enact legislation to address issues
  that are contained in the Maseru Declaration.
• Member states also commit to provide universal
  HIV treatment by 2015.
• Serious need for this protocol to come in to
  force through ratifications by member states.

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The Model Law as a source of law

• The Model law provides more succinctly on HIV
  issues than any other SADC legal document
• If endorsed by member states can be elevated to
  the status of a soft law where efforts of
  member states to combat HIV/AIDS can be measured
  against it.

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The referral system

• Rule 75 of the Tribunals Rules of Procedure
  provides for the referral of matters by a
  domestic court to the Tribunal where questions of
  Community Law are raised and the court finds it
  necessary for the Tribunal to give a preliminary
  ruling to assist it in giving judgment.
• Need for a strong understanding of Community Law
  before the procedure can work
• Procedure can assist in developing uniform
  practice of HIV/AIDS law enforcement

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Access to medicine

• Provision of HIV drugs remains one of the major
  challenges of the region.
• Cost of medicines remains beyond the reach of
  many.
• Doha Declaration on the TRIPS Agreement and
  Public Health made it clear that the Trips
  Agreement does not and should not prevent
  members from taking measures to protect public
  health.
• HIV/AIDS constitutes a public emergency that
  warrants invoking flexibilities of the TRIPS
  Agreement. These flexibilities include the
  granting of compulsory licenses to local
  manufactures to produce patented drugs.
• Few SADC countries have invoked these
  flexibilities

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Access to medicine (contd)

• Can a litigant in need of affordable HIV/AIDS
  medicine bring a suit before the Tribunal on the
  basis that such member state has failed to
  utilize the flexibilities of the TRIPS Agreement
  as pronounced in the Doha Declaration?
• On the basis of the Treaty, the Protocol on
  Health, Protocol on Gender and Development,
  Maseru Declaration and Model HIV/AIDS law it must
  certainly be possible.
• In the event that such a matter were to come
  before the Tribunal, it would do well to follow a
  long line of regional cases that supported the
  provision of medicine to citizens.

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Conclusion

• While HIV/AIDS issues are certainly justiciable
  before the Tribunal, the Model Law provides a
  more robust platform upon which obligations of
  member states in combating HIV/AIDS can be
  measured by.
• The Tribunal ought in the future to develop
  community jurisprudence with regard to HIV/AIDS.
  It is hoped that in the future the Tribunal will
  be able to contribute towards the fight against
  the HIV/AIDS scourge by adopting an activist
  approach and leaning in favour of civil liberties
  rather than state or institutional authority.

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The End