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24 Jun 2019

Globally Men, who have sex with Men (MSM), continue to bear a high burden of HIV infection. In Africa, same sex behaviors have been largely neglected by HIV research, but the results from recent studies indicate the widespread existence of MSM groups across Africa and high rates of infection with Botswana not being an exception.

HIV risk behavior and evidence of behavioral links between MSM have no safe access to relevant HIV/AIDS information and services and many African states have not begun to recognize or address the needs to these men in the context of national HIV/AIDS prevetntion control programmes.

Most African MSM have no safe access to relevant HIV/AIDS information and services and not many African States have not begun to recognize or address the needs of these men in the context of national HIV/AIDS  prevention control.

Social media recently went into an overdrive after the historic judgment on LGBIT in Botswana. No one wanted to be outdone.

The New York Times quoted Anna Mmolai – Chalmers, the Chief Executive of the gay rights group as having said , “We still can’t believe what has happened,” “We’ve been fighting for so long, and within three hours your life changes.”

“It is a historical moment for us,” said Matlhogonolo Samsam, a spokeswoman for Lesbians, Gays and Bisexuals of Botswana, a gay rights group. “We are proud of our justice system for seeing the need to safeguard the rights of the L.G.B.I.T.

The laws had been challenged by an anonymous gay applicant, identified in court papers only as L.M. In a written statement, read by lawyers in the courtroom, the applicant said: “We are not looking for people to agree with homosexuality but to be tolerant.”

Homosexuality has been illegal in Botswana since the late 1800s, when the territory, then known as Bechuanaland, was under British rule. Section 164 of the country’s penal code outlaws “unnatural offenses,” defined as “carnal knowledge against the order of nature.”

In learning about the judgment, one social media commentator asked a very pertinent question in one of his social media platforms.

“Have we not opened the Pandora box? Where do we stop? Are we ready as a society to deal with the consequence of consenting adults’ private agreement? The possibilities of interpretation are scary”.

HIV continues to spread throughout the world, shadowed by increasing challenges to human rights at both national and global levels. The virus continues to be marked by discrimination against population groups, those who live on the fringes of society or who are assumed to be at risk of infection because of behaviours, race, ethnicity, sexual orientation, gender or social characteristics that are stigmatized in a particular society. In most part of the world, discrimination also jeopardizes equitable distribution of access to HIV related goods for prevention and care, including drugs necessary for HIV/AIDS care and the development of vaccines to respond to the specific needs of all populations.

As the number of people living with HIV /AIDS continues to grow in nations with different economic, social structures and legal systems, HIV / AIDS related human rights issues are not only becoming more apparent but also becoming increasingly diverse.

It is on the basis of the foregoing that there was recognition of the applicability of international law to HIV/AIDS and from there to increased understanding of the importance of human rights as a factor in determining people's vulnerability to HIV infection.

The 1980s were extremely important in defining some of the connections between HIV/AIDS and human rights.  By the 1990s, the call for some human rights and for compassion and solidarity with people living with HIV/AIDS has been explicitly embodied in the first WHO global response o HIV/AIDS.  This approach was motivated y moral outrage but also by the recognition that protection of human rights was a necessary element of a worldwide public health response to the emerging epidemic.

Thus the framing of public health strategy in human rights terms becomes a reality. It became anchored in international law, thereby making government, intergovernmental organizations publicly accountable for their actions toward people living with HIV/AIDS and the application of international law to HIV/AIDS.

The strong focus in the 1980s on the human rights of people living with HIV/AIDS also helped lead to increased understanding in the 1990s of the importance of human rights as a factor in determining people’s vulnerability to the HIV infection and their consequence risk of acquiring HIV infection as well as the probability of their accessing appropriate care and support, (Grunskins et al 2002)

The interaction between HIV/AIDS and human rights is most often illustrated through the impact on the lives of individuals of neglect, denial and violation of their rights in the context of HIV/AIDS epidemic. People infected with HIV may suffer from violations of their rights when for example, the face government condoned marginalization and discrimination in relation to access to health, education and social services.  The recognition of rights by people living with HIV/AIDS would require non-discriminatory access within a supportive social environment.

The concept of human rights it must be noted has a long history, but the modern human rights movement dates  back about seven decades to when the promotion of human rights was set out as one of the purposes and principles to the United Nations.  The International system has seen great strides towards gender equality and protections against violence in society, community and in the family.

The key human rights mechanisms of the UN have reaffirmed state obligation to ensure effective protection of all persons from discrimination based on sexual orientation or gender identity. However, the international response to human rights violations based on sexual orientation and gender identity has been fragmented and inconsistent.

The principles on the application of international human rights law in relation to sexual orientation and gender identity commonly referred to as “The Yogyakarta Principles”. These principles state that:

“All human beings are born free and equal in dignity and rights. All human rights are universal, interdependent, indivisible and inter related. Sexual orientation and gender identity are integral to every person’s dignity and humanity and must not be the basis for discrimination.”.

Many advances have been made toward ensuring that people of all sexual orientation and gender identities can live with the equal dignity and respect to which all persons are entitled.  Nevertheless, human rights violations targeted toward persons because of their actual or perceived sexual orientation or gender identity constitute a global and entrenched pattern of serious concern. These violations are often compounded by experiences of other forms of violence, hatred, discrimination and exclusion.

The response by the Botswana Council of Churches press statement on the recent judgment on the people of same sex relationships dated 19th June 2019 is therefore, not surprising. It is an aspect of denialism on their part by using Moral trump card when clergy men do take participate in the so called immoral practices of sodomy even in others such as transactional sex from commercial sex workers.  It is equally not surpring for others to be in denial and pretend that sodomy is a new thing amongst African culture and custom when history talks to the contrary and hence the name “MATANYOLA”, practiced even by married men, clergy men, prisoners and even  in the army and by some high ranking officials. Matanyola does not know morale boundaries and we must stop being in denial.

There are understandable reasons why the perspective of the right to health seems to many to be remote as reported in the Lancet, 2008. First there is what we might call the legal question: how can health be a right since there is no binding legislation demanding just that. Second, there is the flexibility question: how can state of being in good health be a right, when there is no way of ensuring that everyone does have good health. Third, there is the policy question: why think of health, rather than health care, as a right, since health care is under the control of policy making and not the actual state of health of the people.

The legal question assumes that the idea of right has to be inescapably legal. The feasibility question is based on a common confusion about what can or cannot be a right. The Policy question points to the important fact that good health depends on health care, health care is something we can legislate about, (Lancet, 2008).  A human right can serve as a parent not only of law, but also of many other ways of advancing the cause of that right.

The right to health has similarly broad demands that go well beyond with legislating good health care. These are political, social, economic, scientific and cultural actions that we can take for advancing the cause of good health for all, (Lancet, 2008).

Have we not opened the Pandora box? They are not looking for people to agree with homosexuality but to be tolerant.”

Thabo Lucas Seleke, Researcher & Scholar, Health Policy Analysis

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