Legal environment assessments for HIV, TB and malaria | Identifying human rights barriers
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Legal Environment Assessments are another tool for identifying legal, regulatory and human rights barriers and how they affect health, including for key populations at country-level, and providing a gateway to action for strengthened legal and policy environments.
UNDP supports participatory, country-led Legal Environment Assessment (LEA) initiatives to identify and document a country’s laws, regulations and policies relating to HIV and TB as well as to key populations. These LEAs also examine access to justice and law enforcement issues, to determine how laws, regulations and policies are enforced and whether populations, including key populations are able to access remedies for rights violations. In this way, LEAs provide information on how the legal and policy framework protects and promotes rights to address health and / or how it creates barriers to access to health services.
LEAs are generally initiated by key government ministries, led and overseen by a multi-stakeholder committee that includes civil society and supported by development partners such as UNDP. Currently, most LEAs have focussed on HIV and AIDS, and more recently also TB, but they can be used to examine laws, policies and human rights issues affecting populations in the context of a range of health issues, including sexual and reproductive health and rights. The LEAs focus on key legal and human rights issues identified by country stakeholders. For instance, HIV-related LEAs have focussed on issues such as:
- Stigma and discrimination against populations living with or affected by HIV, TB and malaria
- Criminalization of HIV transmission, exposure and non-disclosure
- Women, girls and HIV
- Rights of children and young people
- Criminal laws that impact on key populations, and
- Access to treatment
LEAs collect information in various ways. They examine a country’s laws, policies and regulations that affect diseases such as HIV and TB. This requires looking not only at health laws, but also laws that affect populations, including key populations at all levels of society and that protect and promote or alternatively that adversely impact on health and wellbeing. LEAs also involve discussions with key stakeholders from all sectors of government, civil society and development partners. They often include key population focus group discussions to discuss human rights and gender equality issues that impact them. LEAs involve consultations and feedback mechanisms to understand, discuss and analyse the findings. Finally, they include multi-stakeholder validation processes to validate recommendations and to plan for rights-based effective responses to strengthen legal frameworks.
The process can contribute to increasing awareness and understanding of human rights and health. When carried out in a consultative, participatory and transparent manner, it is also useful for building consensus among national stakeholders on actions needed to strengthen legal and policy frameworks. Where human rights and gender equality issues are complicated, particularly in relation to key populations, this process can help to increase or initiate dialogue amongst various stakeholders. To be used as critical evidence-informed data, the LEA process needs to be designed in a robust way and implemented rigorously.
In some countries, an LEA may already have been completed, may be ongoing or may have been identified as an important activity in the national strategic plan. In this case, the outcome of the LEA can help to direct human rights and gender equality interventions required in the country’s national responses, and within Global Fund funding requests. Where an LEA has not been undertaken, it may be useful to include it as an activity in the plan and/or funding request.
Informed by these baseline assessments, country stakeholders, with the support of Global Fund staff, will develop five-year national plans to scale up programmes to reduce human rights barriers (including removing policy and legal impediments).
The LEA and baseline assessment can complement efforts to identify legal, policy, human rights and gender-related barriers to HIV, TB and malaria services, and recommended programmatic responses to overcome the gaps and challenges.
The Task Force was working towards increasing awareness of the rights of people living with and affected by HIV, law review and reform to strengthen protection of the rights of affected populations and the dissemination of the results of the People Living with HIV Stigma Index Study carried out in 2012. However, DRC determined that an LEA would strengthen the existing work being done, by identifying key remaining challenges in the legal and policy framework and prioritising actions to strengthen laws, policies and practices relating to HIV.
In carrying out an LEA, partners in the DRC undertook various activities to build on and strengthen existing strategies and partnerships and to mobilise sustained commitment for action on HIV, law and human rights. By doing this, they were able to successfully build on a network of informed, sensitized and committed partners who then also undertook follow-up actions arising out of the LEA. Strategies included:
- Awareness Raising: Partners undertook preliminary activities to raise awareness amongst stakeholders on the need for and importance of undertaking an LEA.
- Strengthening structures and partnerships: Partners also undertook various activities to build on existing structures and partnerships to encourage sustainability for ongoing action on HIV law review and reform during and after the LEA, including:
- Assigning responsibility for overseeing the LEA to the existing task force on HIV law and human rights, and
- Establishing a close working relationship with the Ministry of Justice including advocating for the appointment of a National Focal Point on HIV and Human Rights and encouraging the Ministry of Justice to revive the HIV units within the Ministry.
- Capacity Building: Partners in the DRC also undertook further awareness raising and capacity building initiatives during the course of the LEA which further strengthened commitment to the process. This included:
- Holding a National Dialogue under the chairmanship of the Minister of Justice, with the participation of all key stakeholders including government ministries, parliamentarians, people living with HIV, key populations, members of the judiciary and law enforcement officials, and
- Producing a training manual on HIV law and human rights and holding capacity building sessions with key stakeholders.
- Consensus Building: The draft LEA was circulated amongst key experts to allow stakeholders such as the judiciary to provide expert input into the LEA and its recommendations.