The policy and legal framework on hiv may 2011

The Policy and Legal Framework on HIV/AIDS in Ethiopia, May
2011

The Policy and Legal Framework on HIV/AIDS in Ethiopia

This brief paper provides an overview and description of the major policy documents on HIV/AIDS
and legislation relevant to the national response to the pandemic in Ethiopia.

1 Policy Framework on HIV/AIDS

Ethiopia’s national response to the HIV/AIDS pandemic is guided by the national policy on HIV/AIDS
issued in August 1998. This policy was elaborated through a five year (2000-2004) national strategic
framework which was replaced by a strategic plan for the succeeding four years (2005-2008) itself
supplemented 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, a
number of other policy documents specific to HIV/AIDs issues have been developed in the form of
strategies and guidelines. These include: the National Monitoring and Evaluation Framework for the
Multi-Sectoral Response to HIV/AIDS in Ethiopia (HAPCO, December 2003);3 the National Guidelines
for 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, May
2005); the Guidelines for Implementation of Antiretroviral Therapy (2005);6 the Guidelines for
Prevention 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 of
Antiretroviral Drugs (2005)8. Among these guidelines and strategies, those relating to HIV counseling
and testing are the ones with direct relevance to the subject matter hand.9 Other sector specific

1
Federal HAPCO, the Ethiopian Strategic Plan for Intensifying Multi-Sectoral HIV Response (SPM II),
Final Draft, September 2009
2
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), 2003
4
Federal HIV/AIDS Prevention and Control Office and Federal Ministry of Health, Guidelines for HIV
Counseling and Testing in Ethiopia, July 2007
5
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, 2005
7
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 2007
8
Ministry of Health, Guidelines for Use of Antiretroviral Drugs in Ethiopia, Addis Ababa, 2005
9
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 Woldegiorgis
Socio-Legal Researcher
E-mail: gmgiorgis@gmail.com Page 1

2011

policy documents on education, health and other issues also incorporate components relevant to the
national HIV/AIDS response in the context of the specific social sectors and vulnerable groups.10

1.1 The National HIV/AIDS Policy

The National HIV/AIDS Policy (1998) recognizes that HIV/AIDS is not only a health problem but also a
development problem in Ethiopia. The overall goal of the policy is to provide an enabling
environment for the prevention and control of HIV/AIDS in the country. More specifically the policy
aims 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 to
maintain faithful sexual relationships with one partner; promote the use of condoms in situations
where there may be the risk of HIV transmission; minimize other unsafe practices such as illegal
injections, harmful traditional procedures, and drug addiction; ensure safe medical practices to
protect against HIV transmission; and, ensure the human rights of people with AIDS. The National
HIV/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 states
that PLWHA should be involved in all these efforts through education, counseling, and peer groups
to “help themselves live with HIV/AIDS and to communicate to the community the dangers of risky
behaviors”. 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.

2011

The 1998 Policy on HIV/AIDS deals with issues related to HIV testing. The principle as laid down under
the Policy is that “testing and counseling shall be voluntary and shall be encouraged along with
counseling services”11. However, the Policy recognizes two exceptions to this principle in the case of
HIV 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 of
testing results14 with the proviso that PLWHA shall be encouraged to notify others such as the
spouse, friends and family through repeated counseling.15 Moreover, the Policy recognizes the rights
of an ‘endangered partner’ to access information on the sero-status of the partner in cases of altered
state of consciousness or of difficult cases where a person refuses to notify after adequate
counseling and his/her partner is at risk of infection.16

1.2 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 Framework
for the National Response to HIV/AIDS in Ethiopia (2001-2005) launched in 2001 and the Ethiopian
Strategic Plan for Intensifying Multi-sectoral HIV/AIDS Response (2004-2008) issued in 2004. The
latter, also called the first Strategic Plan and Management document (SPM I), reaffirms the
recognition of HIV/AIDS as a development problem under the National Policy and aims to: “prevent
and control the spread of HIV/AIDS and reduce its impact through intensified, result-oriented large-scale
comprehensive programs with active participation of all partners and with special focus on social
mobilization and community empowerment”. The shorter term goals of the Strategy focus on
reducing the spread of HIV infection, and minimizing the social and economic impact of HIV/AIDS in
Ethiopia.

The SPM has identified six thematic areas as “Strategic Issues”: capacity building; community
mobilization and empowerment; integration with health programs; leadership and mainstreaming;
coordination and networking; and, focus on special target groups. The ‘special target groups’ are
identified 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 other
vulnerable children. For the first group the objective is to “reduce vulnerability to HIV infection
among the identified targeted group” through strategies including VCT and behavioral change
interventions, condom use, RH and STI services, life-skills development, IGA and employment
opportunities, school-based interventions, and peer education.17 In relation to PLWHA, orphans and

11
Policy on HIV/AIDS, Paragraph 3/2
12
13
Policy on HIV/AIDS, Paragraphs 3/5 and 3/6
14
15
16
17
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 where

2011

other vulnerable children identified as one of the two categories of special target groups, the
specific objective of the Strategy is to: “Improve quality of life of people living with HIV/AIDS, orphans
and other vulnerable children (OVC)”. The PLWHA and OVC objective is to be achieved through
strategies including family and community based care, legal protection, access to social services,
vocational training and IGA opportunities, social security, and stakeholder mobilization.18 The
framework matrix included in the plan has also identified the major activities, indicators, means of
verification and responsible body for each of the selected strategies. Finally, the budget breakdown
by intervention area and activity provided at the end of the Strategic Plan indicates specific
allocations for ‘special target groups’.

The Strategic Framework for the National Response to HIV/AIDS in Ethiopia 2000-2004 replicates
provisions of the 1998 Policy on HIV/AIDS with respect to HIV testing. That is, it maintains the
national HIV policy provisions on issues of consent, testing, and confidentiality of information.

1.3 The Universal Access Plan of Action
Ethiopia is signatory to several international declarations and initiatives, and it is also beneficiary to
the various forms of international assistance and donations. Among others, the major international
initiatives 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 of
Commitment on HIV/AIDS, the Brazzaville Commitment, the “Three Ones” principles, and the Global
Task 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 to
approve resolution 60/262, also known as the Political Declaration on HIV/AIDS. The declaration
includes a commitment by UN Member States to move towards the goal of universal access to HIV
prevention, treatment, and care and support services by 2010. It also calls on each country to set
ambitious national targets to be achieved by the year 2010, and to work with partners at country
level 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 of
Action 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 detailed
activities 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.

2011

bases itself to related national plans and processes, in particular: the Health Sector Road Map for
Accelerated Access to HIV Prevention, Care and Treatment in Ethiopia; the National Universal Access
process that set national targets for non-health sectors for 2007-2010; and the National Social
Mobilization Strategy which is designed to intensify mobilization of all parts of the society with
special attention to the community towards broad-based participatory action. It also takes into
account 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 financial
gap analysis has been conducted. The Plan of Action, therefore, is the one agreed national AIDS
action framework of the “Three Ones” principles.

Ethiopia’s universal access targets under this framework are:19 condom use by sexually active
population (age 15-49) will increase from 10% in 2007 to 60% by 2010; people treated for STIs will be
94% 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 will
increase from 32% in 2007 to 100% by 2010; 1.68 million OVC receiving care and support by 2010; 50% of
people living with HIV (PLHIV) to receive care and support services by 2010; all Kebeles conduct
community 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/AIDS
response in the coming few years is the Ethiopian Strategic Plan for Intensifying Multi-Sectoral HIV
Response (SPM II) covering the period 2009-2014. In its development, SPM II is guided by the
National HIV/AIDS Policy; the SPM I (2004-2008), the Plan for Accelerated and Sustained
Development to End Poverty, PASDEP 2007-2010; and other key policy and strategy documents for
the HIV response such as the road map for accelerated access to HIV prevention, treatment and care
in Ethiopia 2007-2010, and the Plan of action for universal access to HIV prevention, treatment, care
and support in Ethiopia 2007-2010. The implementation of the SPM is also expected to involve the
development of successive operational annual plans.20

This SPM, in its current form,21 has nine major sections with substantive sections covering: an
overview of the situation of HIV/AIDS in Ethiopia and the national response; the mission, vision, goal
and guiding principles of the national response, the major strategic issues, and the main thematic
areas along with their corresponding objectives and strategies; the strategic plan matrix outlining

19
FHAPCO, Multisectoral Plan of Action for Universal Access to HIV Prevention, Treatment, Care and
Support in Ethiopia (2007–2010), December 2007, pp. 11-12
20
Federal HAPCO, the Ethiopian Strategic Plan for Intensifying Multi-Sectoral HIV Response (SPM II),
Final Draft, September 2009, p. 71
21
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.

2011

selected strategy, major activities, indicators, means of verification and responsible body for the
activities of the given thematic areas; the budgetary requirements and justification, governance and
institutional arrangements, and monitoring and evaluation; and, the major challenges and the ways
forward. The SPM is subsequently concluded with the annexes which include the minimum service
delivery package by institutional level, role of key implementing agencies, list of policy document and
acronyms.

With a vision of seeing Ethiopia free of HIV/AIDS, the SPM II sets the following mission for the
national 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 related
morbidity and mortality and mitigating its impacts in the country. To this end, the SPM II seeks to
create comprehensive knowledge and behavioral change among the masses, reduce vulnerability to
and risks of HIV infection, create universal access and increased utilization of HIV/AIDS services, and
mitigate the impact of the pandemic.

Based on analysis of the epidemic and the national response to date, the SPM II has identified two
major strategic areas, namely creating enabling environment for the response, and priority
programmatic thematic areas. The strategic issues included in the enabling thematic area are
capacity building, community mobilization & empowerment, leadership and governance,
mainstreaming, coordination, and partnership & networking. Whereas strategic issues in the
programmatic thematic areas include: intensifying HIV prevention, increasing access and quality of
chronic care and treatment, strengthen care and support, and enhance generation & use of strategic
information.

One of the key strategies adopted under SPM II in intensifying HIV prevention programs and services
targets development schemes and new business opportunity locations including public and private
sectors.23 This involves an initial response capacity assessment aimed at revitalizing and scaling up
mainstreaming, including through the development of workplace intervention guidelines as well as
integration of HIV prevention at the sector, institutional, program and project levels. More specific
focus is also given to newly created development opportunities and commercial activities such as
road construction sites, flower farms, mining, dam construction points. The stated target for this

22
SPM II, p. 25
23
SPM II, p. 37

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strategy is to access 150 new business opportunity locations, key sectors, industries and private
sector institutions.24

Recognizing the need to intensify ‘structural interventions’ to address societal factors underlying the
spread of the pandemic in the country, the SPM II gives particular attention to poverty, socio-cultural
norms, beliefs and practices, gender inequality, and stigma and discrimination. In relation to reducing
vulnerability of ‘risk groups’ to HIV infection, one of the selected strategies is to “promote
interventions against stigma and discrimination and protection of human rights”.25 The specific
interventions and targets planned for the SPM II period include conducting two stigma index studies
and six national campaigns on stigma and discrimination

The 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, and
confidentiality 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 of
preventive 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 in
response to the needs accompanying the current scale up of counseling and testing services and to
incorporate 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 conducted
on two conditions: on all voluntary blood, tissue and organ donors, who shall be informed about HIV
testing and given opportunity to learn their test results; and, in special cases as per a court order. In

24
SPM II, Results Matrix for SPM II (2009/10 – 2014), p. 56
25
SPM II, Results Matrix for SPM II (2009/10 – 2014), p. 58
26
SPM II, pp. 38-39
27
Federal HIV/AIDS Prevention and Control Council /Federal Ministry of Health, Guidelines for HIV
Counselling and Testing in Ethiopia, 2007

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all other cases, mandatory testing is recognized as a violation of human rights. Under the guidelines
provider-initiated testing and counseling (PITC) is to be promoted as part of standard clinical
management 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 by
appropriate counseling.

As per the Guidelines, informed consent for testing shall be obtained in all cases, except in
mandatory testing.28 Counsellors are thus required to make sure that clients adequately understand
benefits, implications and consequences of testing; and recognize the right of clients to withdraw
consent at any time, even after blood has been taken for HIV testing.29 The Guidelines also provide
for the capacity to give consent30 considering individuals aged 15 years and above to be mature
enough to give informed consent. HIV testing for children under 15 is permitted only with the
knowledge and consent of parents or guardians, and the testing must be done for the benefit of the
child.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 of
consenting to HIV testing. Similarly, HIV counselling and testing of a mentally impaired individual
requires the knowledge and consent of his/her guardian, and should be for the benefit of the
individual or patient.32 As it is the case with consent, the Guidelines state that ’adequate pre- and
post-test counseling shall be offered to all clients’.33

The Guidelines allow two exceptions for confidentiality of testing results. Firstly, in cases where
testing is ordered by a court of law, results should be communicated directly to the appropriate
authority.34 Secondly, partner notification shall be encouraged in cases where one partner receives
the 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 partner's HIV status.35

1.6 Workplace HIV/AIDS Prevention and Control Guidelines

Two sets of guidelines specific to HIV/AIDS in the workplace have been developed by the relevant
authorities in Ethiopia. With a purpose to ensure a PLWHA friendly working environment in
government employment settings, the Ethiopian Civil Service Agency has issued the Government
Organizations Workplace HIV/AIDS Prevention and Control Guidelines in 2005.36 The Civil Service
Workplace HIV/AIDS Guideline of the country also protects people living with HIV from discrimination
by employers. In 2009, the Confederation of Ethiopian Trade Unions (CETU), the Ministry of

28
Guidelines for HIV Counselling and Testing, paragraph 1/1
29
Guidelines for HIV Counselling and Testing, paragraph 3/2/2
30
31
32
33
Guidelines for HIV Counselling and Testing, paragraphs 1/1 and 3/2
34
35
36
FDRE Civil Service Agency, Government Organizations Workplace HIV/AIDS Prevention & Control
Guidelines, 2005

2011

Agriculture and Rural Development, the Ministry of Education, and the Ministry of Transport and
Communications have developed workplace AIDS policies.37 Similarly, the Ministry of Labor and
Social Affairs (MoLSA) had issued guidelines for the prevention and control of HIV/AIDS at the
workplace applicable to private employment settings in 2004.38 However, the authority of both
guidelines is subject to challenge since neither has been published in the official legal gazette as
required for all legislative instruments.39 Moreover, the limited accessibility of copies of the
guidelines suggests limited, if any, utilization in practice.40

1.7 Other Sector Policy Documents

The Education Sector Development Programme, which aims to ensure universal access to education
with focus on OVC, outlines the main elements of the education sector strategy response to HIV and
AIDS 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 in
the sector. It then defines activities and strategies that would further enrich the sector strategy in
the 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 of
Health has developed a National Adolescent and Youth Reproductive Health Strategy (2007-2015) in
2007. The strategy outlines the major youth reproductive health issues in Ethiopia and charts a way
forward. Moreover, a National Youth Policy has been developed by the Ministry of Youth, Sports
and Culture in 2003/04. This policy has sections that prescribe measures in relation to youth and
health, youth and HIV/AIDS and youth and drugs and other harmful substances. Finally, the National
Plan of Action for Children for the period 2003 to 2010 and beyond, which was developed by MoLSA
in 2004,43 identifies the provision of quality education and combating HIV/AIDS among its focal
issues.

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 91
38
FDRE Ministry of Labour and Social Affairs, Organizations Workplace HIV/AIDS Prevention & Control
Guidelines, 2004
39
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
Ababa
40
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 2005
42
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 2004

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2 Legal Framework on HIV/AIDS

Ethiopia is a signatory to the Universal Declaration of Human Rights (UDHR) and has ratified the bulk
of 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 line
with commitments under these and other agreements, Ethiopia has taken some major steps to
harmonize its domestic laws with the provisions of international human rights instruments starting
with the adoption of the FDRE Constitution (1995). The Constitution contains provisions for the
domestication of international human rights agreements and incorporates specific children’s rights
provisions. These provisions of the Constitution have also been translated into subsidiary laws
through an extensive legislative reform program in place since 1995. Among the major laws issued or
revised under the legislative reform program, the ones with direct relevance to children’s rights
include: 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 commitment
to harmonize domestic laws with constitutional and international human rights standards through
44
ongoing review processes including the drafting of a law on HIV/AIDS.

2.1 The FDRE Constitution

The FDRE Constitution enumerates fundamental rights and freedoms and recognizes the basic rights
and freedoms outlined in the major international human rights instruments. It recognizes a broad
range of basic rights and freedoms, which are relevant to HIVAIDS concerns, including
nondiscrimination and equality before the law, access to social services including health and
education, 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, the
Constitution 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 other
condition” has been interpreted to prohibit discrimination on the basis of HIV status. Similarly, the
Constitution guarantees the right to privacy including confidentiality of medical information, as well
as the right to equal employment opportunities, and the right to a healthy working environment.46
The right to marriage and a family and the right to choose one’s domicile are also important in the
context of PLWHA.47

44
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 Constitution
47
Articles 34 and 32/1, FDRE Constitution

2011

2.2 The Revised Family Code

The Revised Family Code of July 2000,48 which replaces the provisions of the Civil Code of 1960
relating to marriage and the family, contains provisions that are more consistent with the provisions
of the Constitution in relation to minimum marriageable age, freedom of marriage, and equal rights
of the spouses before, during and after marriage. These provisions of the Code address many of the
structural and root causes for the spread of HIV/AIDS and vulnerability of some social sections to
infection, namely women and girls. The most significant contribution of the revised Family Code is
the 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 sexual
outrage under the penal code to the same age level. Another important feature of the Revised
Family Law is the prohibition of marriage by abduction, early marriage and bigamy, practices
associated with the spread of HIV/AIDS in Ethiopia. The FDRE Revised Family Code vividly confirms
that AIDS is a ground of divorce.49

2.3 The Criminal Code

The Penal Code is another important legislation that has been revised to harmonize domestic laws
with 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, includes
new and revised provisions relevant to the national response to the HIV/AIDS pandemic. The most
direct of these provisions expressly criminalizes the act of spreading or transmitting a communicable
human disease.50 This provision provides for punishment up to and including the death penalty for
the intentional spread of an epidemic that can cause grave injury or death. The Public Health
Proclamation similarly imposes a duty on persons suspected of infection with communicable
diseases to submit to testing51 while everybody else is duty bound to report suspicions or knowledge
on the occurrence of a communicable disease to the authorities. In addition, the provision of the 1961
Criminal Procedure Code pertaining to medical examination of accused sexual offenders has been
interpreted 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 Ababa
49
Article 13(b), The Revised Family Code
50
Article 514, Criminal Code
51
Articles 2/8 and 17/2, Proclamation No. 200/2000
52
Article 34, Criminal Procedure Code

2011

The justification for such interpretation is based on the claim that the result of the HIV test is
essential in determining the applicable Criminal Code provision. That is, the HIV status of the suspect
determines whether the charges fall under the provisions relating to rape or transmitting a
communicable human disease.

On the other hand, various forms of violence against women and children, which are closely linked to
vulnerability to HIV/AIDS, are extensively addressed within the new Criminal Code. The Code
criminalizes forms of violence against children including sexual offences such as rape,53 trafficking in
children,54 prostitution of another for gain55 and physical violence within marriage or in an irregular
union56. The prohibitions also extend to HTPs in general with specific provisions on abduction,57
female genital mutilation,58 early marriage,59 bigamy60 and endangering the lives of or causing bodily
injury 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 aggravating
circumstances and revised the penalties applicable in cases of violation. New provisions on
concurrence of offences and the liability of institutions have also been included.

2.4 Employment Laws
The law governing employment is another area of Ethiopian law that explicitly responded to
HIV/AIDS concerns. The currently applicable laws governing employment in the civil service and
private 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 shall
be no discrimination among job seekers or civil servants in filling up vacancies because of their ethnic
origin, sex, religion, political outlook , disability, HIV/AIDS or any other ground”. While providing for
production of medical certificate as a pre-condition for candidates who qualify for a job, the Civil
Servants’ Proclamation unequivocally states that the medical certificate does not have to include HIV
test result.65 It also prohibits HIV testing of civil service employees stating: “any civil servant shall
have the obligation to take medical examination, with the exception for HIV/AIDS, when required by the
government institution on sufficient ground related to the service”.66 Similarly, the Labor Proclamation
states that:67 “it shall be unlawful for the worker to, except for HIV/AIDS test, refuse to submit himself

53
Articles 620-628, Criminal Code
54
Articles 597 and 635, Criminal Code
55
56
57
Article 587-590, Criminal Code
58
Articles 565 and 566, Criminal Code
59
60
61
Articles 561-563, Criminal Code
62
Proclamation No. 515/2007
63
Proclamation No. 377/2003
64
Article 13/1, Federal Civil Servants Proclamation No. 515/2007
65
Article 17, Federal Civil Servants Proclamation No. 515/2007
66
Article 63/1, Federal Civil Servants Proclamation No.515/2007
67
Article 14/2/d, Labor Proclamation No 377/2003

2011

for medical examination when required by law or by the employer for good cause”. This prohibition is
intended to address potential discrimination of PLWHA in getting employment opportunities. Other
relevant 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 of
health, health and safety of workers and sick leave.

Though more limited in scope, the private employment agency proclamation68 also has direct
contributions to the national response to violence against women and girls. The proclamation, which
regulates the activities of private employment agencies for local as well as foreign employment, puts
in place a mandatory licensing arrangement enforced with serious penalties. Through this licensing
arrangement as well as provisions for monitoring and supervision, the proclamation seeks to protect
employees who are mostly woman or girl victims of trafficking and other forms of violence against
women.

2.5 The Civil Code

Though the Civil Code has been in existence long before the emergence of HIV/AIDS, some of its
provisions are relevant to HIV/AIDS issues. The provisions of the Criminal Code provide for civil
redress in the form of compensation where a crime has caused considerable damage to the injured
person including death or injuries to the body or health. In such cases, the victim may claim
compensation from the offender. The provisions of the Civil Code relating to Extra Contractual
Liability govern the calculation and payment of this compensation. The Civil Code provides that69 “a
person commits a fault where he infringes any specific and explicit provision of a law, ordinance or
administrative 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 act
prohibited by law will be liable for the financial losses resulting from his or her actions.

68
Proclamation number 104/1998
69
Article 2035/1, Civil Code of Ethiopia
70
Article 2028, Civil Code of Ethiopia

The policy and legal framework on hiv may 2011

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