Why have we for so long ignored the obvious? Is it because quality and affordable legal services for PLHIV and vulnerable groups are already widely available in the West? I think not!
Yet for 20 years (yes, since the first WHO resolution on the matter in 1988) we have implored governments to strengthen the legal environment to prohibit HIV-related discrimination, without paying much attention to ensuring the legal profession (including paralegals) was equipped, available and even interested to take on such cases. This is like focusing on bulk purchases of ART without thinking about the doctors needed to prescribe them!
This is NOT a plea for more resources for law reform! That may come and of course may be important in some countries, but for the moment let’s try working with what we have. In many cases much can be achieved without specific legislative reference to HIV.
There are already extraordinary examples of great work being done to provide legal services: the AIDS Law Project in South Africa, the Lawyers’ Collective in India, ACCSI in Venezuela. But these ‘best practice case studies’ only beg the question: why have such legal services not been taken to scale elsewhere with the same urgency that we seek to provide ART? Test cases are clearly important (e.g. to establish the right to treatment), but what about the rather ordinary case of a person refused dental care or accommodation, but who lives outside the capital city or too far at least from the legal clinic with HIV expertise (if it exists)?
If you think legal services are only relevant in a few developing countries, take a moment to check with your colleagues working elsewhere with PLHIV and vulnerable groups.
My bet is that they will assure you that quality and affordable legal services would be very useful, perhaps to register their NGO, then to deal with the landlord who doesn’t want an HIV organization in the building, then to assist the HIV positive mother evicted by her husband, then the outreach worker harassed by the police, and what about the gay group that can’t register because they are ‘immoral’? etc, etc.
Even in countries where the law is difficult to enforce through the courts, a lawyer can still use the law on the books, past decisions, and negotiating skills to get a better outcome for a client. And if the outcome is unsatisfactory? Every case that is well-documented provides further compelling evidence for law and policy reform.
We know HIV-related discrimination is an obstacle to prevention and treatment, and even China now has a national law to prohibit discrimination against PLHIV. But have any of the GF grants to China included training of lawyers and judges in HIV and the new law? (Bravo if they have! I will happily stand corrected.)
What is the experience to date? UNAIDS has conducted an informal survey of proposals for Round 7. Here are some results:
· Four countries reported support for training judges and/or lawyers.
· Twelve countries reported support for training for law enforcement on HIV.
· Twelve countries reported support for legal service for people living with HIV and/or those vulnerable to infection.
· Six countries reported support for legal aid services to protect/enforce the inheritance and property rights of women, in the context of HIV.
These reports are tentative and we don’t know which if any of these proposals was funded, but wouldn’t it be nice to know? Every country could benefit from sharing examples of such projects that have been approved.
There is immense technical capacity in some organizations, e.g. the Lawyers Collective has a HIV training course for new ‘recruits’, as does Alterlaw in the Philippines. The AIDS Rights Alliance of Southern Africa (ARASA) networks HIV legal expertise across the region. In December 2007, the first ever HIV training for lawyers in China was organized by a private law firm and a drug rehab organization in Kunming. For the most part, however, existing training resources used are not yet on the web or otherwise widely accessible.
There are also excellent legal training and resource materials produced by UNAIDS/UNDP/IPU and the World Bank and others. But they have to get into the languages and hands of people who can use them. Everywhere the potential demand for legal services easily outstrips the supply of lawyers who understand HIV, the local law, and have the skills to provide services to PLHIV and vulnerable groups.
Now here comes a radical suggestion: many of these lawyers should be paid for their services, not expected to provide them pro bono! Of course let’s work with existing sources of legal aid, e.g. through free university and government clinics. But let’s admit as well that the concept of pro bono services is not universal. Nor are lawyers in most countries well-remunerated! So the budget implications of engaging staff lawyers should not be daunting. We also need to connect people in the same country and region working on these issues.
So what is needed? The following, all as soon as possible!
1. Include a session on legal issues at the Partnership Forum in 2008.
2. Survey, document and analyze legal components of proposals and approved grants in Rounds 1-8. Were the legal components of any proposals specifically queried or rejected by the Technical Review Panel? If so, the panel may need legal expertise, or at least training in this area.
3. Document the provision of legal services in different contexts. Publish a range of best practice case studies. Ensure that CCMs, UNAIDS Country Coordinators and regional Technical Support Facilities (TSFs) have all these materials and understand their importance (training will probably be needed).
4. Provide technical assistance to help local organizations that are already providing even informal HIV legal services write sub-grant proposals for Rounds 9, 10… Include a monitoring and evaluation component so that successful projects can be quickly taken to scale.
5. In countries where there is yet no local initiative, support legal organizations working with women, street youth, sex workers, IDU, MSM etc to include an HIV component in their services.
6. How much is needed? Not more than 1-3% of grants to start with (i.e. $300,000-900,000 for a $30million grant).
More radical ideas:
7. Support a proposal from an organization with legal training capacity operating at a regional or international level to develop or assemble model HIV law training curriculums in providing HIV legal services and other aspects of HIV law. Countries could then request this technical assistance and training could be national or regional, with technical support for materials and network development provided as well.
8. Include a satellite and/or sessions on providing HIV legal services at future regional and international AIDS conferences. Also get this onto the agenda of other international meetings (e.g. the next World Justice Forum) and meetings of national and regional legal professional associations. The Fund could support national participation in such meetings.
All good ideas, like squash balls, warm after being bounced around. So please take my suggestions, hit them around, and see what you come up with. David Patterson. email: david.patterson@videotron.ca.
Reference: Technical Guidance for Round 8 Global Fund HIV Proposals Cross-Cutting Issues: Human Rights and Law (UNAIDS, April 2008)