Promotion of Equality & Prevention of Unfair Discrimination Bill [B57-99]
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| While the traditional public health response to any epidemic is to contain and protect those who are uninfected from those who are infected, with HIV/ AIDS there is also need to protect those living with HIV/ AIDS from those who are not known to be living with HIV \ AIDS. This is commonly referred to as the 'AIDS paradox'(6).
In most settings in order to prevent new HIV infections, patterns of sexual behaviour must change. However such changes cannot take place if laws do not adequately protect vulnerable groups from unfair discrimination. Such laws are thus required to reduce the vulnerability of groups most at risk of HIV infection. Internationally it is accepted that in order to achieve public health initiatives like HIV prevention, education and awareness a legal climate in which people can exercise their right not to be unfairly discriminated against must be provided. Where discrimination is rife epidemic are usually driven underground for fear of systemic and individual reprisal. Adding HIV \ AIDS to the current list of prohibited grounds would fundamentally affirm the right to equality of 3.5 million (and increasing) people in SA and thus protect a substantial but marginalised group in our society. In this respect the Bill is ideally located to promote equality and prevent unfair discrimination and must necessarily do so in relation to HIV \AIDS. The value of explicit prohibition against discrimination on the grounds of HIV/AIDS in the Bill would be enormous. It could possibly deter HIV related unfair discrimination that is already widespread and prevalent in the public sector, private sector and in our communities. Further, such explicit protection will provide an accessible remedy to PLWHA's in the same way that the Bill offers accessible remedies to black people, women, gays, lesbians and people with disabilities etc. We cannot simply rely on the natural progression of the law regarding whether HIV/ AIDS will be deemed to be 'any other recognised ground' or instead, whether it will be interpreted to mean a disability. The Bill must be clear about locating HIV/AIDS in the legislative framework of equality and should do so by listing HIV/AIDS as a prohibited ground. Historically dis-empowered groups in society like PLWHA's are least likely to act or seek legal and other recourse when their rights are breached given the extent of infringements that already occur. This is particularly relevant in the context of HIV discrimination, where dis-empowerment and victimization are often an inherent result of being HIV positive. To this end, protection against unfair discrimination on the basis of HIV/ AIDS should serve a double purpose. It must provide an accessible remedy and recourse to PLWHA's who have been unfairly discriminated against. Further it must promote the equality and dignity of PLWHA's so as to attenuate the current climate of stigma and marginalization, deter unfair discrimination and empower PLWHA's. The Bill in it's present form will not achieve these two objectives. REVIEW OF PREVIOUS DISCUSSION DOCUMENTS AND DRAFT BILL The Ad Hoc Joint Committee is aware that the Equality legislation drafting process which commenced approximately 18 months ago resulted in the production of several draft discussion documents and a draft bill. Significantly, while the earlier part of this process (Discussion Document 1 and 2) did not even address the need for specific protection against HIV/AIDS discrimination, the process thereafter (Discussion Document 3 onwards) questioned and accepted the inclusion of such protection. For example, Discussion Document 3 provided:(7) "HIV and Aids People who have been diagnosed as HIV positive, or who have AIDS, are being discriminated against very severely in a range of contexts and environments, from employment, and various economic spheres, to sports and aspects of service and facilities which have a severe impact on their social lives and self image. Much of this discrimination is in fact unjustified and unfair. It results in such persons having to resort to secrecy, social withdrawal and lies. There can be little doubt that discrimination on these grounds has to be addressed. A number of questions have to clamped, however. One is related to the fact that Section 9 (3) [Constitution] does not specifically mention HIV or Aids [AIDS] as a ground. Should the open-endedness of Section 9 (3) be utilized in the hope that the courts or other tribunals will recognise it has [as] a forbidden ground of discrimination? Does it fall under one of the grounds in Section 9 (3) (for example, disability)? Or should it be specifically included?" Discussion document 4 provided: (8) "Prohibition of Unfair Discrimination: Neither the State, nor any person (or: No one, or: No person) may unfairly discriminate directly or indirectly against anyone (on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth. (5)" Explanatory note 5 states: " This is the general prohibition of unfair discrimination, which is included up front, before the definitions. It must be read with the Chapter on specific sectors, which follows later. The parts in brackets may not be necessary, in view of the definition that follows. New grounds have been suggested, such as family status, socio-economic status and HIV positive status. For now the draft is restricted to Constitutionally recognized grounds. Others could still be explicitly included." Further, in Section 3 (k) 'disability' is defined to also include a disability that is "imputed to a person (6)".
"This definition probably allows for HIV and Aids [AIDS]. More specific references could be included, if desired." Discussion document 5 included in the definition section:
(a) means (iv) the presence in the body or organisms capable of causing disease or illness;' Further footnote *3 states: The definition of disability is "intended to include HIV. If HIV is not to be regarded as a disability, it may be included as a separate ground and this definition may have to be considered." Further, '"prohibited grounds" include race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, family status, age, HIV *(12), disability, religion, conscience, belief, culture, language and birth.' Footnote *12 states:
" 'disability discrimination' includes- (a) any unfair act, practice or conduct which as the effect of hindering or precluding any person or persons who have or who are perceived to have disabilities or who are affected by AIDS, from conducting their activities freely, and which undermines their sense of human dignity and self-worth, and prevents their full and equal participation in society. (our emphasis) And further: " (xvii) 'prohibited grounds' include one or more of the following grounds of discrimination: race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language, [domestic and] family responsibility or status, birth, social and economic status ?????, nationality, HIV and AIDS or any other ground;". [quoted as the section appears in the Bill but with our emphasis] Since 1998 the ALP as well as other NGO's and AIDS service organisations have engaged and participated extensively in the drafting process of the Bill in order to strengthen protections for PLWHA's. The last minute inexplicable exclusion of specific protections for PLWHA's is not only surprising but also respectfully inappropriate. The ensuing paragraphs attempt to address this debate more fully. INTERNATIONAL GUIDELINES ON HIV \ AIDS AND HUMAN RIGHTS During 1998 the United Nations High Commissioner for Human Rights and the Joint United Nations Programmes on HIV/AIDS and Human Rights (UNAIDS) produced International Guidelines on HIV/AIDS and Human Rights ('the Guidelines').(11) Guideline 5 calls for the enactment or strengthening of anti-discrimination laws to protect people living with HIV/AIDS from discrimination in both the public and private sectors, and to provide for speedy and effective administrative and civil remedies when such laws are breached.
Guideline 5 states: 30. States should enact or strengthen anti-discrimination and other protective laws that protect vulnerable groups, living with HIV/AIDS and people with disabilities from discrimination in both the public and private sectors, that will ensure privacy and confidentiality and ethics in research involving human subjects, emphasise education and conciliation and provide for speedy and effective administrative and civil remedies. (a) General anti-discrimination laws should be enacted or revised to cover people living with asymptomatic HIV infection, people living with AIDS and those merely suspected of HIV or AIDS. Such laws should also protect groups made more vulnerable to HIV/AIDS due to the discrimination they face. Disability laws should also be enacted or revised to include HIV/AIDS in their definition of disability. Direct and indirect discrimination should be covered, as should cases where HIV/AIDS is only one of several reasons for a discriminatory act, and prohibiting HIV/AIDS vilification should also be considered. (f) Anti-discrimination and protective laws should be enacted to reduce human rights violations against women in the context of HIV/AIDS, so as to reduce vulnerability of women to infection by HIV and to the impact of HIV/AIDS. (f) Anti-discrimination and protective laws should be enacted to reduce human rights violations against children in the context of HIV/AIDS, so as to reduce the vulnerability of children to infection by HIV and to the impact of HIV/AIDS. Attached is a copy of the Guidelines marked 'ALP 2'. In addition, earlier this year, the 55th session of the United Nations Commission on Human Rights (UNCHR) passed a resolution on the "Protection of human rights in the context of human immuno deficiency virus (HIV) and acquired immune deficiency syndrome (AIDS). The resolution was unanimously accepted by 59 states including South Africa.(12)
"Reiterating that discrimination on the basis of HIV or AIDS status, actual or presumed, is prohibited by existing international human rights standards, and that the term 'or other status' in non discrimination provisions in international human rights texts should be interpreted to cover health status, including HIV \AIDS" Further, "2. Also invites States to strengthen national mechanisms for protecting HIV \AIDS-related human rights and to take all necessary measures to eliminate the stigmatization of and discrimination against those infected and affected by HIV \ AIDS, especially for women, children and vulnerable groups 4. Urges States to ensure that their laws, policies and practices respect human rights in the context of HIV \AIDS, prohibit HIV \ AIDS related discrimination, promote effective programmes for the prevention of HIV \AIDS." [our emphasis] Attached is a copy of the Resolution marked ALP 3. International bodies such as UNAIDS and UNCHR have accepted that an essential component of a strong human rights based approach to the AIDS epidemic is anti-discrimination legislation which specifically protects against unfair discrimination on the basis of HIV status, real or perceived. Further, SA has a duty to ensure that all our laws give effect to treaties, covenants, Charters and resolutions that we have adopted and ratified. SALC RECOMMENDATIONS In respect of law reform and HIV/AIDS, both our legislators and the judiciary often rely on the South African Law Commission (SALC) for recommendations and advice.1(13) Since 1995, the SALC Committee on HIV/AIDS has published three interim reports recommending legislative reforms.
See C v Minister of Correctional Services 1996 (4) SA 292 (TPD) and Jansen van Vuuren and Another NNO v Kruger 1993 (4) SA 842 (AD). The Second Interim Report recommended statutory intervention to prohibit pre-employment medical testing - which prohibition was not HIV specific.(16) It is evident from the project committee's Discussion Paper 72 - which preceded the Second Interim Report - that HIV specific legislation was initially envisaged.(17) The need for specific prohibition was due to uncertainty about the interpretation of the term "disability" in both the 1996 Constitution and the Labour Relations Act 1995 (LRA). The Third Interim Report proposed a national policy expressly prohibiting unfair discrimination against learners (educational setting) living with or perceived to be living with HIV.(18) The committee emphasised the crisis caused by an application in early 1997 by Nkosi Johnson (an eight-year-old boy living with AIDS) to be admitted to a public school in Johannesburg and the subsequent reaction of some members of the public. This despite the enactment of the South African Schools Act. (19) Thus, despite the Constitution and sector specific legislation prohibiting unfair discrimination against PLWHA's, the SALC itself has over time recognised that this does not automatically offer by and in itself legal and \ or other protection to PLWHA's. This is important when considering the need to specifically protect PLWHA's in the proposed Bill, which need not necessarily be viewed as 'AIDS exceptionalism', especially because there are several other prohibited grounds specifically listed in the Bill. HUMAN RIGHTS COMMISSION (HRC) Specific and explicit protection of HIV \AIDS in the Bill is not only necessary but also logical. Chapter 9 institutions have themselves recognised a growing climate of discrimination against PLWHA's and further also acknowledged the subsequent need to protect against HIV \ AIDS discrimination. During 1998 the HRC issued the following resolution as part of their 'Statement and Programme of Action': "Conferences notes with alarm the rapid increase in HIV infections in our country as well as the widespread discrimination against people living with HIV/AIDS. Discrimination, inequality and poverty all increase the risk of HIV infection. Accordingly, dealing with AIDS, by means of public education and awareness-raising, research and the building of community support structures, should be a national priority and an inter-ministerial approach should be adopted. Conference observes that most people living with HIV/AIDS receive inadequate counselling, care and treatment, especially those who are poor. Conference avers that discrimination against people living with HIV/AIDS is a violation of the Constitution, especially compulsory pre-employment HIV testing, the refusal of financial services and their exclusion from medical insurance schemes. Conference believes that government is obliged to take steps to prevent discrimination against people living with HIV/AIDS. Conference endorses the HIV/AIDS and Human Rights Policy and Guidelines adopted by the United Nations Commission on Human Rights. Parliament is urged to adopt a charter on HIV/AIDS in terms of Section 234 of the Constitution and that such charter be substantially in line with the AIDS Consortium's Charter on HIV/AIDS. [our emphasis] A copy of the HRC Resolution is attached marked Annexure 'ALP 4'. To give effect to this resolution it would make sense to provide explicit protection to PLWHA's in the Bill. SHOULD HIV \ AIDS BE LISTED IN THE BILL ? IS HIV \ AIDS A DISABILITY ? Throughout the drafting process of the Bill, the ALP has been asked to specifically consider whether HIV \ AIDS should be included in the Bill on its own or under the definition of disability. Secondly, we were asked to consider whether HIV \ AIDS constitutes a disability for the purposes of the Bill. These questions go to the fundamental purpose of the legislation itself, that is, to protect and promote equality, as well as to the fundamental ethos of the Constitution. The Constitutional ethos, which appears ex facie the provisions of the Constitution itself, can be said to be the existence of an open and democratic society based on human dignity, the achievement of equality, and the advancement of human rights and freedoms. Section 36 of the Constitution underscores the ethos by which the Constitution should be interpreted and states that: "...when interpreting the bill of rights, a court, tribunal or forum must promote the values that underlie an open and democratic society based on human dignity, equality and freedom and ... when developing the common law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights." The spirit and purport of the Constitution appears to envision that social behaviours are regularly examined, in order to ensure that the marginalization and exclusion of certain groups from the benefits that society can offer are eradicated. Moreover, the prevailing aim of the right to equality in section 9 appears to be the protection of vulnerable groups of individuals from subordination and discrimination. THE MEANING OF "DISABILITY" The concise Oxford Dictionary (9th Edition) gives three possible meanings for the word disability: 1a "A physical incapacity, either congenital or caused by entry, disease, etc, esp. when limiting a person's ability to work; 2 a lack of some asset, quality or attribute, that prevents a person from doing something; 3 a legal disqualification." Other SA instruments and foreign legislation offer some guidance on the possible nature and ambit of the definition of disability. For example in SA, the Compensation for Occupational Injuries and Diseases Act contains the following definitions relating to disability: (20) 'Disablement' means disablement for employment or permanent injury or serious disfigurement 'temporary partial disablement', in relation to an employee, means the temporary partial inability of such employee as a result of an accident or occupational disease for which compensation is payable to perform the whole of the work at which he was employed at the time of such accident or occupational disease or to resume work at a rate of earnings not less than that which he was receiving at the time of such accident or occupational disease; 'temporary total disablement', in relation to an employee, means the temporary total inability of such employee as a result of an accident or occupational disease for which compensation is payable to perform the work at which he was employed at the time of such accident or occupational disease or work similar thereto;...". The Employment Equity Act defines "people with disabilities" as:(21) "People who have a long term or recurring physical or mental impairment which substantially limits their prospects of entry into, or advancement in, employment". 'Clearly, there are statutory definitions of disability, but like most statutory definitions they are aimed, however imperfectly and narrowly, at describing the relationship between the disposition of the disabled person and a particular function in respect of which they are incapacitated.
This ambivalence is also reflected in the different ordinary meanings attributed to it by the dictionary definition. What is notably absent from either of the statutory instruments above is a notion of disablement which embraces perceived disablement by others.'(22) However, the Bill in defining 'disability discrimination' includes - "any act, practice or conduct which has the effect of unfairly hindering or precluding any person or persons who have or who are perceived to have disabilities from conducting their activities freely, and which undermines their sense of self-worth, and prevents their full and equal participation in society;" [1(vi)]. The value of the protection given to PLWHA's would be substantially minimised if HIV was not explicitly protected in the Bill, and \ or merely interpreted into the definition of disability under the Bill. Even with a definition of disability HIV \AIDS must be specifically regarded as a disability failing which the protection offered to PLWHA's would be difficult to enforce. Many jurisdictions are plagued with difficulties in proving or showing that HIV constitutes a disability. Even where HIV is explicitly protected in disability legislation, narrow interpretations have resulted in the exclusion of legitimate claims by PLWHA's. In first world countries where disability protections are used to protect the rights of PLWHA's plaintiffs are usually more literate and aware of their rights as opposed to PLWHA's in SA. In SA many PLWHA's do not use existing laws to protect their rights and thus incorporating HIV \AIDS into the definition of disability may result in a situation where those that need the protection are unable to make use of such protections because they do not understand the nuances of disability legislation. The problems inherent in addressing HIV and AIDS from the perspective of disability have been amply displayed by the American experience of disability legislation and litigation. A similar decade-long judicial debate over whether HIV is included within the protection afforded to disability would be fatal in the context of the SA HIV and AIDS epidemic. In the alternative, if HIV \ AIDS is incorporated into the definition of disability it must be explicitly incorporated, as opposed to a veiled and implied reference. REVIEW OF FOREIGN ANTI DISCRIMINATION AND DISABILITY LAW Many foreign countries have enacted specific anti discrimination legislation that protect persons with disabilities against unfair discrimination in various contexts. These statutes have developed more expansive definitions of disability which embrace both the innate quality of a disability in the sense of an impairment of a mental or physical nature and its consequences for the individual based on reduced capacity or perception of others of that impairment. Below is a cursory examination of anti-discrimination legislation in the USA, Canada, Australia, and the UK with specific emphasis on disability and HIV \ AIDS . U.S.A.
defines a person with a disability as: · a person with a physical or mental impairment that substantially limits that person in some major life activity; or Yüklə 1,52 Mb. Dostları ilə paylaş:
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