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The policy and legal framework on hiv may 2011

  1. 1. The Policy and Legal Framework on HIV/AIDS in Ethiopia, May 2011The Policy and Legal Framework on HIV/AIDS in EthiopiaThis brief paper provides an overview and description of the major policy documents on HIV/AIDSand legislation relevant to the national response to the pandemic in Ethiopia.1 Policy Framework on HIV/AIDSEthiopia’s national response to the HIV/AIDS pandemic is guided by the national policy on HIV/AIDSissued in August 1998. This policy was elaborated through a five year (2000-2004) national strategicframework which was replaced by a strategic plan for the succeeding four years (2005-2008) itselfsupplemented by the Multisectoral Plan of Action for Universal Access to HIV Prevention, Treatment,Care and Support in Ethiopia 2007–2010. Currently, the Ethiopian Strategic Plan for Intensifying Multi-Sectoral HIV Response (SPM II)1 covering the period 2010-2014 is being finalized.2 In addition, anumber of other policy documents specific to HIV/AIDs issues have been developed in the form ofstrategies and guidelines. These include: the National Monitoring and Evaluation Framework for theMulti-Sectoral Response to HIV/AIDS in Ethiopia (HAPCO, December 2003);3 the National Guidelinesfor HIV Counseling in Ethiopia (2007);4 the National Health Communication Strategy for 2005-2014(October 2004);5 the Guideline for an effective Community Mobilization Strategy (HAPCO, May2005); the Guidelines for Implementation of Antiretroviral Therapy (2005);6 the Guidelines forPrevention of Mother-to-Child Transmission of HIV (2007);7 the National Anti-Retroviral Therapy(ART) Strategic Communication Framework (March 2005); and, the Guidelines for Use ofAntiretroviral Drugs (2005)8. Among these guidelines and strategies, those relating to HIV counselingand testing are the ones with direct relevance to the subject matter hand.9 Other sector specific1 Federal HAPCO, the Ethiopian Strategic Plan for Intensifying Multi-Sectoral HIV Response (SPM II), Final Draft, September 20092 While this last document is expected to constitute the core strategic document guiding the national HIV/AIDS response in line with the Policy, it has yet to be translated into guidelines and other policy documents and has an overlapping temporal and thematic coverage with the Plan of Action for Universal Access. It is thus more appropriate to include SPM I and the Plan of Action for Universal Access in this section along with SPM II despite the fact that both of the other documents have already completed their period of implementation.3 Ministry of Health, National Monitoring and Evaluation Framework for Multi-Sectoral Response to HIV/AIDS in Ethiopia, National HIV/AIDS Prevention and Control Office (HAPCO), 20034 Federal HIV/AIDS Prevention and Control Office and Federal Ministry of Health, Guidelines for HIV Counseling and Testing in Ethiopia, July 20075 National Health Communication Strategy: Ethiopia 2005-2014, Ministry of Health-Health Education Center, October 2004. page 18.6 Ministry of Health, Guidelines for Implementation of Antiretroviral Therapy in Ethiopia, Addis Ababa: Ministry of Health, 20057 Federal HIV/AIDS Prevention and Control Office and Federal Ministry of Health, Guidelines for Prevention of Mother-to-Child Transmission of HIV in Ethiopia, July 20078 Ministry of Health, Guidelines for Use of Antiretroviral Drugs in Ethiopia, Addis Ababa, 20059 As such, only these documents are treated in any detail, along with two specific guidelines designed to address issues of HIV/AIDS at the workplace.Ghetnet Metiku WoldegiorgisSocio-Legal ResearcherE-mail: Page 1
  2. 2. The Policy and Legal Framework on HIV/AIDS in Ethiopia, May 2011policy documents on education, health and other issues also incorporate components relevant to thenational HIV/AIDS response in the context of the specific social sectors and vulnerable groups.101.1 The National HIV/AIDS PolicyThe National HIV/AIDS Policy (1998) recognizes that HIV/AIDS is not only a health problem but also adevelopment problem in Ethiopia. The overall goal of the policy is to provide an enablingenvironment for the prevention and control of HIV/AIDS in the country. More specifically the policyaims to: establish effective HIV/AIDS prevention and mitigation strategies to curb the spread of the epidemic; promote a broad, multisectoral response to HIV/AIDS, including more effective coordination and resource mobilization by government, NGOs, the private sector, and communities; encourage government sectors, NGOs, the private sector, and communities to take measures to alleviate the social and economic impact of HIV/AIDS; support a proper institutional, home-based, and community-based health care and psychological environment for PWHA, orphans, and surviving dependents; safeguard the human rights of PWHA and avoid discrimination against them; empower women, youth, and other vulnerable groups to take action to protect themselves against HIV; and promote and encourage research activities targeted toward preventive, curative, and rehabilitative aspects of HIV/AIDS.The priority prevention and control measures called for in the policy include: encourage people tomaintain faithful sexual relationships with one partner; promote the use of condoms in situationswhere there may be the risk of HIV transmission; minimize other unsafe practices such as illegalinjections, harmful traditional procedures, and drug addiction; ensure safe medical practices toprotect against HIV transmission; and, ensure the human rights of people with AIDS. The NationalHIV/AIDS policy makes explicit but general reference to the link between human rights and HIV/AIDS.In referring to the implementation of the priority prevention and control measures, the policy statesthat PLWHA should be involved in all these efforts through education, counseling, and peer groupsto “help themselves live with HIV/AIDS and to communicate to the community the dangers of riskybehaviors”. Moreover, the Policy prohibits restrictions on PLWHA in relation to “employment,education, access to public facilities, or housing”.10 These sector policy documents have been treated briefly at the end of the section to the extent that they address issues of direct relevance.Ghetnet Metiku WoldegiorgisSocio-Legal ResearcherE-mail: Page 2
  3. 3. The Policy and Legal Framework on HIV/AIDS in Ethiopia, May 2011The 1998 Policy on HIV/AIDS deals with issues related to HIV testing. The principle as laid down underthe Policy is that “testing and counseling shall be voluntary and shall be encouraged along withcounseling services”11. However, the Policy recognizes two exceptions to this principle in the case ofHIV screening for job recruitment purpose where justified by the nature of the occupation (pilots -civil aviation and air force);12 and, testing of blood donors.13 The policy also affirms confidentiality oftesting results14 with the proviso that PLWHA shall be encouraged to notify others such as thespouse, friends and family through repeated counseling.15 Moreover, the Policy recognizes the rightsof an ‘endangered partner’ to access information on the sero-status of the partner in cases of alteredstate of consciousness or of difficult cases where a person refuses to notify after adequatecounseling and his/her partner is at risk of infection.161.2 The Strategic Plan for Intensifying Multi-Sectoral HIV/AIDS Response (2004-2008)Following the adoption the National HIV/AIDS Policy, the HIV and AIDS Prevention and Control Office(FHAPCO) has developed two rounds of five year strategic plans, namely the Strategic Frameworkfor the National Response to HIV/AIDS in Ethiopia (2001-2005) launched in 2001 and the EthiopianStrategic Plan for Intensifying Multi-sectoral HIV/AIDS Response (2004-2008) issued in 2004. Thelatter, also called the first Strategic Plan and Management document (SPM I), reaffirms therecognition of HIV/AIDS as a development problem under the National Policy and aims to: “preventand control the spread of HIV/AIDS and reduce its impact through intensified, result-oriented large-scalecomprehensive programs with active participation of all partners and with special focus on socialmobilization and community empowerment”. The shorter term goals of the Strategy focus onreducing the spread of HIV infection, and minimizing the social and economic impact of HIV/AIDS inEthiopia.The SPM has identified six thematic areas as “Strategic Issues”: capacity building; communitymobilization and empowerment; integration with health programs; leadership and mainstreaming;coordination and networking; and, focus on special target groups. The ‘special target groups’ areidentified in two groups: commercial Sex Workers, truckers, migrant laborers, uniformed people,teachers, students and out of school youth; and, people living with HIV/AIDS, orphans and othervulnerable children. For the first group the objective is to “reduce vulnerability to HIV infectionamong the identified targeted group” through strategies including VCT and behavioral changeinterventions, condom use, RH and STI services, life-skills development, IGA and employmentopportunities, school-based interventions, and peer education.17 In relation to PLWHA, orphans and11 Policy on HIV/AIDS, Paragraph 3/212 Policy on HIV/AIDS, Paragraph 3/313 Policy on HIV/AIDS, Paragraphs 3/5 and 3/614 Policy on HIV/AIDS, Paragraph 8/115 Policy on HIV/AIDS, Paragraph 5/516 Policy on HIV/AIDS, Paragraph 5/617 The actual strategies listed for these groups in the Policy are: promote VCT and other behavioral change interventions; promote the use of male and female condoms; provide user-friendly Reproductive Health and STI services; enhance bargaining and negotiations skills for safe sex whereGhetnet Metiku WoldegiorgisSocio-Legal ResearcherE-mail: Page 3
  4. 4. The Policy and Legal Framework on HIV/AIDS in Ethiopia, May 2011other vulnerable children identified as one of the two categories of special target groups, thespecific objective of the Strategy is to: “Improve quality of life of people living with HIV/AIDS, orphansand other vulnerable children (OVC)”. The PLWHA and OVC objective is to be achieved throughstrategies including family and community based care, legal protection, access to social services,vocational training and IGA opportunities, social security, and stakeholder mobilization.18 Theframework matrix included in the plan has also identified the major activities, indicators, means ofverification and responsible body for each of the selected strategies. Finally, the budget breakdownby intervention area and activity provided at the end of the Strategic Plan indicates specificallocations for ‘special target groups’.The Strategic Framework for the National Response to HIV/AIDS in Ethiopia 2000-2004 replicatesprovisions of the 1998 Policy on HIV/AIDS with respect to HIV testing. That is, it maintains thenational HIV policy provisions on issues of consent, testing, and confidentiality of information.1.3 The Universal Access Plan of ActionEthiopia is signatory to several international declarations and initiatives, and it is also beneficiary tothe various forms of international assistance and donations. Among others, the major internationalinitiatives and declarations that have facilitated and enhanced the national response to AIDS include:the UN Millennium Declaration, the Abuja Declaration, the Paris Declaration, the UN Declaration ofCommitment on HIV/AIDS, the Brazzaville Commitment, the “Three Ones” principles, and the GlobalTask Team on Improving AIDS Coordination Among Multilateral Institutions and International Donors(GTT). On 2 June 2006, Ethiopia joined other UN Member States at the UN General Assembly toapprove resolution 60/262, also known as the Political Declaration on HIV/AIDS. The declarationincludes a commitment by UN Member States to move towards the goal of universal access to HIVprevention, treatment, and care and support services by 2010. It also calls on each country to setambitious national targets to be achieved by the year 2010, and to work with partners at countrylevel to overcome the barriers that block access to prevention, care and treatment.In response to this commitment, federal HAPCO led the development of the Multisectoral Plan ofAction for Universal Access to HIV Prevention, Treatment, Care and Support in Ethiopia 2007–2010. The Universal Access Plan of Action is costed and consists of specific targets and detailedactivities categorized within 16 major program areas. Its development has been guided by the SPM,Ethiopia’s universal access commitment and the “Three Ones” principles. The Plan of Action mainly applicable; provide safe and alternative income generating and employment opportunities where applicable; strengthen and expand school anti AIDS clubs and mini Medias; integrate HIV/AIDS in life skill education and basic curriculum; develop youth centers and entertainment resorts; and, organize the youth on voluntary basis and provide peer education.18 The actual strategies listed for these groups in the Policy are: promote care within the family and mobilize the community to address and accommodate the issue of PLWHA/OVC through traditional and extended family mechanisms; provide counseling service, legal advice and protection to PLWHA/OVC; provide access to basic health, education and other social services to PLWHA/OVC; provide vocational skill training and income generating opportunity for PLWHA/OVC; develop acceptable social security models towards the special needs of PLWHA/OVC; and, mobilize all stakeholders to address the needs of PLWHA/OVC in a sustainable manner.Ghetnet Metiku WoldegiorgisSocio-Legal ResearcherE-mail: Page 4
  5. 5. The Policy and Legal Framework on HIV/AIDS in Ethiopia, May 2011bases itself to related national plans and processes, in particular: the Health Sector Road Map forAccelerated Access to HIV Prevention, Care and Treatment in Ethiopia; the National Universal Accessprocess that set national targets for non-health sectors for 2007-2010; and the National SocialMobilization Strategy which is designed to intensify mobilization of all parts of the society withspecial attention to the community towards broad-based participatory action. It also takes intoaccount the sectoral directions of the HSDP, the ESDP and the Health Sector Facility Expansion Plan.Moreover, resource requirements for the Plan of Action were projected for the period 2007-2012,currently available/committed resources to the national AIDS response were mapped, and a financialgap analysis has been conducted. The Plan of Action, therefore, is the one agreed national AIDSaction framework of the “Three Ones” principles.Ethiopia’s universal access targets under this framework are:19 condom use by sexually activepopulation (age 15-49) will increase from 10% in 2007 to 60% by 2010; people treated for STIs will be94% of those who seeks the service by 2010; 9.27 million People to be counseled and tested in 2010;80% of HIV Positive Pregnant women will receive PMTCT service by 2010; People receiving ART willincrease from 32% in 2007 to 100% by 2010; 1.68 million OVC receiving care and support by 2010; 50% ofpeople living with HIV (PLHIV) to receive care and support services by 2010; all Kebeles conductcommunity conversation sessions by 2009; all schools will have HIV/AIDS information centers; and,100% access to primary health care services by 2008.1.4 The Ethiopian Strategic Plan for Intensifying Multi-Sectoral HIV Response (2009-2014)The most recent Strategic Plan and Management document designed to guide the national HIV/AIDSresponse in the coming few years is the Ethiopian Strategic Plan for Intensifying Multi-Sectoral HIVResponse (SPM II) covering the period 2009-2014. In its development, SPM II is guided by theNational HIV/AIDS Policy; the SPM I (2004-2008), the Plan for Accelerated and SustainedDevelopment to End Poverty, PASDEP 2007-2010; and other key policy and strategy documents forthe HIV response such as the road map for accelerated access to HIV prevention, treatment and carein Ethiopia 2007-2010, and the Plan of action for universal access to HIV prevention, treatment, careand support in Ethiopia 2007-2010. The implementation of the SPM is also expected to involve thedevelopment of successive operational annual plans.20This SPM, in its current form,21 has nine major sections with substantive sections covering: anoverview of the situation of HIV/AIDS in Ethiopia and the national response; the mission, vision, goaland guiding principles of the national response, the major strategic issues, and the main thematicareas along with their corresponding objectives and strategies; the strategic plan matrix outlining19 FHAPCO, Multisectoral Plan of Action for Universal Access to HIV Prevention, Treatment, Care and Support in Ethiopia (2007–2010), December 2007, pp. 11-1220 Federal HAPCO, the Ethiopian Strategic Plan for Intensifying Multi-Sectoral HIV Response (SPM II), Final Draft, September 2009, p. 7121 Though designed in 2009, the SPM II document has to be harmonized with sector policies as well as the overarching development policy of the country, i.e, the Growth and Transformation Plan, finalized only recently. Thus, while it is considered final in the sector-specific sense, the document is still in its final stages of adoption within the overall policy framework.Ghetnet Metiku WoldegiorgisSocio-Legal ResearcherE-mail: Page 5
  6. 6. The Policy and Legal Framework on HIV/AIDS in Ethiopia, May 2011selected strategy, major activities, indicators, means of verification and responsible body for theactivities of the given thematic areas; the budgetary requirements and justification, governance andinstitutional arrangements, and monitoring and evaluation; and, the major challenges and the waysforward. The SPM is subsequently concluded with the annexes which include the minimum servicedelivery package by institutional level, role of key implementing agencies, list of policy document andacronyms.With a vision of seeing Ethiopia free of HIV/AIDS, the SPM II sets the following mission for thenational response to HIV/AIDS in Ethiopia:22 “To prevent and control HIV/AIDS epidemic and mitigate its impacts by creating universal access to HIV prevention, treatment, care and support services through intensified community mobilization and empowerment, by building capacity and ensuring the active involvement and ownership across the sectors, enhancing partnership under the principle of the “three ones”, and mobilizing and ensuring appropriate use of resources by instituting result based financing and evidence based informed planning and response”.This mission statement is then translated into the goal of reducing new HIV infections, AIDS relatedmorbidity and mortality and mitigating its impacts in the country. To this end, the SPM II seeks tocreate comprehensive knowledge and behavioral change among the masses, reduce vulnerability toand risks of HIV infection, create universal access and increased utilization of HIV/AIDS services, andmitigate the impact of the pandemic.Based on analysis of the epidemic and the national response to date, the SPM II has identified twomajor strategic areas, namely creating enabling environment for the response, and priorityprogrammatic thematic areas. The strategic issues included in the enabling thematic area arecapacity building, community mobilization & empowerment, leadership and governance,mainstreaming, coordination, and partnership & networking. Whereas strategic issues in theprogrammatic thematic areas include: intensifying HIV prevention, increasing access and quality ofchronic care and treatment, strengthen care and support, and enhance generation & use of strategicinformation.One of the key strategies adopted under SPM II in intensifying HIV prevention programs and servicestargets development schemes and new business opportunity locations including public and privatesectors.23 This involves an initial response capacity assessment aimed at revitalizing and scaling upmainstreaming, including through the development of workplace intervention guidelines as well asintegration of HIV prevention at the sector, institutional, program and project levels. More specificfocus is also given to newly created development opportunities and commercial activities such asroad construction sites, flower farms, mining, dam construction points. The stated target for this22 SPM II, p. 2523 SPM II, p. 37Ghetnet Metiku WoldegiorgisSocio-Legal ResearcherE-mail: Page 6
  7. 7. The Policy and Legal Framework on HIV/AIDS in Ethiopia, May 2011strategy is to access 150 new business opportunity locations, key sectors, industries and privatesector institutions.24Recognizing the need to intensify ‘structural interventions’ to address societal factors underlying thespread of the pandemic in the country, the SPM II gives particular attention to poverty, socio-culturalnorms, beliefs and practices, gender inequality, and stigma and discrimination. In relation to reducingvulnerability of ‘risk groups’ to HIV infection, one of the selected strategies is to “promoteinterventions against stigma and discrimination and protection of human rights”.25 The specificinterventions and targets planned for the SPM II period include conducting two stigma index studiesand six national campaigns on stigma and discriminationThe SPM II maintains the approach adopted by the SPM I in reference to HIV counseling and testing.That is, it maintains the national HIV policy provisions on issues of consent, testing, andconfidentiality of information. New or updated strategies have, however, been stated with a view to‘increasing the availability and accessibility of basic facility based HIV services, and utilization ofpreventive services’26.1.5 The Guidelines for HIV Counseling and Testing in Ethiopia (2007)The first VCT guidelines in Ethiopia were developed in 1996 followed by another guideline in 2002.The current HCT guidelines issued in 2007 represent the third and latest version was prepared inresponse to the needs accompanying the current scale up of counseling and testing services and toincorporate current scientific knowledge.27 The specific objectives of the guidelines are to: improve and maintain HIV/AIDS counseling and testing services at an optimum standard through development and implementation of a comprehensive strategy; provide guidance for the scaled up, as well as general provision, management and evaluation of, HIV/AIDS counseling and testing at all service levels; provide a framework for regulatory control of counseling and testing services; and, promote integration of counseling and testing into all prevention, care and support programs for HIV/AIDS clients and patients with other life-threatening conditions.The guidelines recognize three types of HIV testing, namely voluntary counseling and testing,provider initiated testing and counseling, and mandatory screening. Mandatory testing is conductedon two conditions: on all voluntary blood, tissue and organ donors, who shall be informed about HIVtesting and given opportunity to learn their test results; and, in special cases as per a court order. In24 SPM II, Results Matrix for SPM II (2009/10 – 2014), p. 5625 SPM II, Results Matrix for SPM II (2009/10 – 2014), p. 5826 SPM II, pp. 38-3927 Federal HIV/AIDS Prevention and Control Council /Federal Ministry of Health, Guidelines for HIV Counselling and Testing in Ethiopia, 2007Ghetnet Metiku WoldegiorgisSocio-Legal ResearcherE-mail: Page 7
  8. 8. The Policy and Legal Framework on HIV/AIDS in Ethiopia, May 2011all other cases, mandatory testing is recognized as a violation of human rights. Under the guidelinesprovider-initiated testing and counseling (PITC) is to be promoted as part of standard clinicalmanagement and care in all health facilities but has to be conducted based on informed consent.However, consent is not required for mandatory testing which should still be supported byappropriate counseling.As per the Guidelines, informed consent for testing shall be obtained in all cases, except inmandatory testing.28 Counsellors are thus required to make sure that clients adequately understandbenefits, implications and consequences of testing; and recognize the right of clients to withdrawconsent at any time, even after blood has been taken for HIV testing.29 The Guidelines also providefor the capacity to give consent30 considering individuals aged 15 years and above to be matureenough to give informed consent. HIV testing for children under 15 is permitted only with theknowledge and consent of parents or guardians, and the testing must be done for the benefit of thechild.31 As an exception, children aged 13-15, who are married, pregnant, commercial sex workers,street children, heads of families, or sexually active are considered ‘mature minors’ capable ofconsenting to HIV testing. Similarly, HIV counselling and testing of a mentally impaired individualrequires the knowledge and consent of his/her guardian, and should be for the benefit of theindividual or patient.32 As it is the case with consent, the Guidelines state that ’adequate pre- andpost-test counseling shall be offered to all clients’.33The Guidelines allow two exceptions for confidentiality of testing results. Firstly, in cases wheretesting is ordered by a court of law, results should be communicated directly to the appropriateauthority.34 Secondly, partner notification shall be encouraged in cases where one partner receivesthe results alone. When a client fails to disclose positive status to his/her partner for any reason,however, the endangered partner has the right to know the positive partners HIV status.351.6 Workplace HIV/AIDS Prevention and Control GuidelinesTwo sets of guidelines specific to HIV/AIDS in the workplace have been developed by the relevantauthorities in Ethiopia. With a purpose to ensure a PLWHA friendly working environment ingovernment employment settings, the Ethiopian Civil Service Agency has issued the GovernmentOrganizations Workplace HIV/AIDS Prevention and Control Guidelines in 2005.36 The Civil ServiceWorkplace HIV/AIDS Guideline of the country also protects people living with HIV from discriminationby employers. In 2009, the Confederation of Ethiopian Trade Unions (CETU), the Ministry of28 Guidelines for HIV Counselling and Testing, paragraph 1/129 Guidelines for HIV Counselling and Testing, paragraph 3/2/230 Guidelines for HIV Counselling and Testing, paragraph 1/431 Guidelines for HIV Counselling and Testing, paragraph 1/4/132 Guidelines for HIV Counselling and Testing, paragraph 1/533 Guidelines for HIV Counselling and Testing, paragraphs 1/1 and 3/234 Guidelines for HIV Counselling and Testing, paragraph 3/2/735 Guidelines for HIV Counselling and Testing, paragraph 3/2/836 FDRE Civil Service Agency, Government Organizations Workplace HIV/AIDS Prevention & Control Guidelines, 2005Ghetnet Metiku WoldegiorgisSocio-Legal ResearcherE-mail: Page 8
  9. 9. The Policy and Legal Framework on HIV/AIDS in Ethiopia, May 2011Agriculture and Rural Development, the Ministry of Education, and the Ministry of Transport andCommunications have developed workplace AIDS policies.37 Similarly, the Ministry of Labor andSocial Affairs (MoLSA) had issued guidelines for the prevention and control of HIV/AIDS at theworkplace applicable to private employment settings in 2004.38 However, the authority of bothguidelines is subject to challenge since neither has been published in the official legal gazette asrequired for all legislative instruments.39 Moreover, the limited accessibility of copies of theguidelines suggests limited, if any, utilization in practice.401.7 Other Sector Policy DocumentsThe Education Sector Development Programme, which aims to ensure universal access to educationwith focus on OVC, outlines the main elements of the education sector strategy response to HIV andAIDS as:41 integrating HIV and AIDS in the curricula of all levels of education, developing guidelines;development of workplace policy and mainstreaming, and addressing stigma and discrimination inthe sector. It then defines activities and strategies that would further enrich the sector strategy inthe long run including non-formal education programs for out-of-school children of 7-14 years of age,and a Special Needs Education Strategy targeting children with disabilities.42 Similarly, the Ministry ofHealth has developed a National Adolescent and Youth Reproductive Health Strategy (2007-2015) in2007. The strategy outlines the major youth reproductive health issues in Ethiopia and charts a wayforward. Moreover, a National Youth Policy has been developed by the Ministry of Youth, Sportsand Culture in 2003/04. This policy has sections that prescribe measures in relation to youth andhealth, youth and HIV/AIDS and youth and drugs and other harmful substances. Finally, the NationalPlan of Action for Children for the period 2003 to 2010 and beyond, which was developed by MoLSAin 2004,43 identifies the provision of quality education and combating HIV/AIDS among its focalissues.37 Federal HIV/AIDS Prevention and Control Office, Report on progress towards implementation of the UN Declaration of Commitment on HIV/AIDS (2010), Federal Democratic Republic of Ethiopia, March 2010, pp. 28 and 9138 FDRE Ministry of Labour and Social Affairs, Organizations Workplace HIV/AIDS Prevention & Control Guidelines, 200439 Article 2/3, A Proclamation to Provide for the Establishment of the Federal Negarit Gazeta”, Federal Negarit Gazette of the Federal Democratic Republic of Ethiopia, 22 August, 1995, Year 1 No. 3, Addis Ababa40 The Civil Service Agency and MoLSA guidelines are available in the Ethiopian HIV/AIDS Resource Center Library, though not downloadable from the Center’s website.41 Ministry of Education, Education Sector Development Program (ESDP III), 2005/2006 – 2010/2011, Program Action Plan, August 200542 Though the status of these documents is not clear, a draft education sector policy on responding to HIV/AIDS in Ethiopia, and a draft strategy for the implementation of that policy were also being finalized in early 2008. The government also has a strategy promoting HIV-related reproductive and sexual health education for young people.43 MoLSA, National Plan of Action for Children (2003–2010), June 2004Ghetnet Metiku WoldegiorgisSocio-Legal ResearcherE-mail: Page 9
  10. 10. The Policy and Legal Framework on HIV/AIDS in Ethiopia, May 20112 Legal Framework on HIV/AIDSEthiopia is a signatory to the Universal Declaration of Human Rights (UDHR) and has ratified the bulkof general human rights and child rights instruments including the Convention on the Rights of Child,the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). In linewith commitments under these and other agreements, Ethiopia has taken some major steps toharmonize its domestic laws with the provisions of international human rights instruments startingwith the adoption of the FDRE Constitution (1995). The Constitution contains provisions for thedomestication of international human rights agreements and incorporates specific children’s rightsprovisions. These provisions of the Constitution have also been translated into subsidiary lawsthrough an extensive legislative reform program in place since 1995. Among the major laws issued orrevised under the legislative reform program, the ones with direct relevance to children’s rightsinclude: the Revised Family Code (2000), the Criminal Code (2005), and the Labor Proclamation(Proclamation No. 377/2003). The Ethiopian Government has continued to reaffirm its commitmentto harmonize domestic laws with constitutional and international human rights standards through 44ongoing review processes including the drafting of a law on HIV/AIDS.2.1 The FDRE ConstitutionThe FDRE Constitution enumerates fundamental rights and freedoms and recognizes the basic rightsand freedoms outlined in the major international human rights instruments. It recognizes a broadrange of basic rights and freedoms, which are relevant to HIVAIDS concerns, includingnondiscrimination and equality before the law, access to social services including health andeducation, participation, employment, the right to marry and found a family, the right to privacy,honor and reputation, and the rights of women and children. More relevant to PLWHA, theConstitution proscribes any distinction based on race, nationality, color, gender, language, religion,politics, social background, wealth, birth status, or any other condition.45 The phrase “any othercondition” has been interpreted to prohibit discrimination on the basis of HIV status. Similarly, theConstitution guarantees the right to privacy including confidentiality of medical information, as wellas the right to equal employment opportunities, and the right to a healthy working environment.46The right to marriage and a family and the right to choose one’s domicile are also important in thecontext of PLWHA.4744 The draft law on HIV/AIDS, which has already been prepared by the Ministry of Justice, is expected to address the human rights implications of HIV/AIDS. The Ministry is expected to submit the draft to the Council of Ministers for consideration. Other initiatives with possible relevance to the national response to HIV/AIDS include: the development of a Criminal Justice Administration Policy and review of the Criminal Procedure Code initiated upon the adoption of the revised Criminal Code in 2005; and, support to the drafting and adoption of Regional Family Laws using the Revised Family Code (2000) as a frame of reference.45 Article 25, FDRE Constitution (also see: Article 18 of the FDRE Constitution)46 Articles 26, 41/1 and 42/2, FDRE Constitution47 Articles 34 and 32/1, FDRE ConstitutionGhetnet Metiku WoldegiorgisSocio-Legal ResearcherE-mail: Page 10
  11. 11. The Policy and Legal Framework on HIV/AIDS in Ethiopia, May 20112.2 The Revised Family CodeThe Revised Family Code of July 2000,48 which replaces the provisions of the Civil Code of 1960relating to marriage and the family, contains provisions that are more consistent with the provisionsof the Constitution in relation to minimum marriageable age, freedom of marriage, and equal rightsof the spouses before, during and after marriage. These provisions of the Code address many of thestructural and root causes for the spread of HIV/AIDS and vulnerability of some social sections toinfection, namely women and girls. The most significant contribution of the revised Family Code isthe setting of minimum marriageable age for girls at 18. This review of marriageable age for girls,besides being important by itself, has contributed to the extension of full protection from sexualoutrage under the penal code to the same age level. Another important feature of the RevisedFamily Law is the prohibition of marriage by abduction, early marriage and bigamy, practicesassociated with the spread of HIV/AIDS in Ethiopia. The FDRE Revised Family Code vividly confirmsthat AIDS is a ground of divorce.492.3 The Criminal CodeThe Penal Code is another important legislation that has been revised to harmonize domestic lawswith international human rights standards with important implications for the response to HIV/AIDS.The new Criminal Code, which came into force in May 2005 replacing the 1957 Penal Code, includesnew and revised provisions relevant to the national response to the HIV/AIDS pandemic. The mostdirect of these provisions expressly criminalizes the act of spreading or transmitting a communicablehuman disease.50 This provision provides for punishment up to and including the death penalty forthe intentional spread of an epidemic that can cause grave injury or death. The Public HealthProclamation similarly imposes a duty on persons suspected of infection with communicablediseases to submit to testing51 while everybody else is duty bound to report suspicions or knowledgeon the occurrence of a communicable disease to the authorities. In addition, the provision of the 1961Criminal Procedure Code pertaining to medical examination of accused sexual offenders has beeninterpreted as allowing compulsory HIV testing. The provision in question reads:52 “where an investigating police officer considers it necessary, having regard to the offence with which the accused is charged, that a physical examination of the accused should be made, he may require a registered medical practitioner to make such examination and require him to record in writing the results of such examination. Examination under this Article shall include the taking of a blood test”.48 “The Revised Federal Family Code of Ethiopia”, Federal Negarit Gazette of the Federal Democratic Republic of Ethiopia (July 4, 2000) Sixth Year Extra Ordinary Issue No. 1, Addis Ababa49 Article 13(b), The Revised Family Code50 Article 514, Criminal Code51 Articles 2/8 and 17/2, Proclamation No. 200/200052 Article 34, Criminal Procedure CodeGhetnet Metiku WoldegiorgisSocio-Legal ResearcherE-mail: Page 11
  12. 12. The Policy and Legal Framework on HIV/AIDS in Ethiopia, May 2011The justification for such interpretation is based on the claim that the result of the HIV test isessential in determining the applicable Criminal Code provision. That is, the HIV status of the suspectdetermines whether the charges fall under the provisions relating to rape or transmitting acommunicable human disease.On the other hand, various forms of violence against women and children, which are closely linked tovulnerability to HIV/AIDS, are extensively addressed within the new Criminal Code. The Codecriminalizes forms of violence against children including sexual offences such as rape,53 trafficking inchildren,54 prostitution of another for gain55 and physical violence within marriage or in an irregularunion56. The prohibitions also extend to HTPs in general with specific provisions on abduction,57female genital mutilation,58 early marriage,59 bigamy60 and endangering the lives of or causing bodilyinjury to children61. In addition to criminalizing new forms of violence against women and children,the Criminal Code has also redefined the elements of some existing offences, added aggravatingcircumstances and revised the penalties applicable in cases of violation. New provisions onconcurrence of offences and the liability of institutions have also been included.2.4 Employment LawsThe law governing employment is another area of Ethiopian law that explicitly responded toHIV/AIDS concerns. The currently applicable laws governing employment in the civil service andprivate employment, i.e., the Federal Civil Servants Proclamation62 and Labour Proclamation63,prohibit compulsory HIV testing for the purpose of employment. The first states that:64 “there shallbe no discrimination among job seekers or civil servants in filling up vacancies because of their ethnicorigin, sex, religion, political outlook , disability, HIV/AIDS or any other ground”. While providing forproduction of medical certificate as a pre-condition for candidates who qualify for a job, the CivilServants’ Proclamation unequivocally states that the medical certificate does not have to include HIVtest result.65 It also prohibits HIV testing of civil service employees stating: “any civil servant shallhave the obligation to take medical examination, with the exception for HIV/AIDS, when required by thegovernment institution on sufficient ground related to the service”.66 Similarly, the Labor Proclamationstates that:67 “it shall be unlawful for the worker to, except for HIV/AIDS test, refuse to submit himself53 Articles 620-628, Criminal Code54 Articles 597 and 635, Criminal Code55 Article 634, Criminal Code56 Article 564, Criminal Code57 Article 587-590, Criminal Code58 Articles 565 and 566, Criminal Code59 Article 649, Criminal Code60 Article 650, Criminal Code61 Articles 561-563, Criminal Code62 Proclamation No. 515/200763 Proclamation No. 377/200364 Article 13/1, Federal Civil Servants Proclamation No. 515/200765 Article 17, Federal Civil Servants Proclamation No. 515/200766 Article 63/1, Federal Civil Servants Proclamation No.515/200767 Article 14/2/d, Labor Proclamation No 377/2003Ghetnet Metiku WoldegiorgisSocio-Legal ResearcherE-mail: Page 12
  13. 13. The Policy and Legal Framework on HIV/AIDS in Ethiopia, May 2011for medical examination when required by law or by the employer for good cause”. This prohibition isintended to address potential discrimination of PLWHA in getting employment opportunities. Otherrelevant areas to HIV/AIDS concerns covered by the employment laws include non-discrimination,respect for the worker’s human dignity, termination of a contract of employment for reasons ofhealth, health and safety of workers and sick leave.Though more limited in scope, the private employment agency proclamation68 also has directcontributions to the national response to violence against women and girls. The proclamation, whichregulates the activities of private employment agencies for local as well as foreign employment, putsin place a mandatory licensing arrangement enforced with serious penalties. Through this licensingarrangement as well as provisions for monitoring and supervision, the proclamation seeks to protectemployees who are mostly woman or girl victims of trafficking and other forms of violence againstwomen.2.5 The Civil CodeThough the Civil Code has been in existence long before the emergence of HIV/AIDS, some of itsprovisions are relevant to HIV/AIDS issues. The provisions of the Criminal Code provide for civilredress in the form of compensation where a crime has caused considerable damage to the injuredperson including death or injuries to the body or health. In such cases, the victim may claimcompensation from the offender. The provisions of the Civil Code relating to Extra ContractualLiability govern the calculation and payment of this compensation. The Civil Code provides that69 “aperson commits a fault where he infringes any specific and explicit provision of a law, ordinance oradministrative regulation’. And since the basic principle of extra-contractual liability is that70“whosoever, by his fault, causes damage to another, shall make it good”, the perpetrator of any actprohibited by law will be liable for the financial losses resulting from his or her actions.68 Proclamation number 104/199869 Article 2035/1, Civil Code of Ethiopia70 Article 2028, Civil Code of EthiopiaGhetnet Metiku WoldegiorgisSocio-Legal ResearcherE-mail: Page 13