Realising the right to health for children with HIV/AIDS in Botswana: Policy based approach v rights based approach

Author: Rashid Dumbuya
LLM (Human Rights and Democratisation in Africa) candidate, Centre for Human Rights, University of Pretoria, South Africa; Barrister and Solicitor, Sierra Leone

Botswana faces significant challenges on the HIV/AIDS epidemic. According to the third Botswana AIDS Impact Survey (BAIS III) which took place in 2008, 17.6% of Batswana were living with HIV/AIDS. The survey revealed that about 18 000 children below the age of 19 were HIV positive.

Strong political commitment at national level has however resulted in impressive scale up in HIV treatment for children under the Prevention of Mother-to-child Transmission programme. Children are currently treated in about 33 centres issuing antiretroviral drugs. However, Baylor Children’s Clinical Centre of Excellence provides a more in-depth pediatric content. There are also community-based non-governmental organisations (NGOs) such as Child Line, Mpule Kwelagobe Centre, SOS Children’s Home and Paolo Zanichelli Children’s Centre that are currently providing specialised services to vulnerable children. It is however important to point out that, in Botswana, the needs of HIV/AIDS affected children are not provided for in a comprehensive National legal framework. Care and treatment for children with HIV is currently addressed in overall HIV policy guidelines.

Botswana is a party to the Universal Declaration of Human Rights, the Convention on the Rights of the Child, the African Charter on Human and Peoples’ Rights, the African Charter on the Rights and Welfare of a Child but not the International Covenant on Economic, Social and Cultural Rights. At the domestic level, Botswana has a Constitution, the Public Health Act and the Children’s Act of 2009. However, these legal instruments do not expressly provide for the right to health for children living with HIV/AIDS.

Despite the enormous contributions made by the international community, NGOs and the private sector towards the control and treatment of AIDS, the country still faces huge limitations in terms of successes in its effort to combat the HIV epidemic. Children have continued to suffer the negative impact of HIV infection. A child born today in Botswana is expected to have a shorter life span than one born a decade ago, according to a senior medical officer at the Princess Marina Hospital.

In terms of the level of magnitude, the impact of the HIV/AIDS epidemic has been devastating especially in relation to child mortality. Whiles actual statistics were refused to be released by the Ministry of Health, child based organisations interviewed such as Child Line, gave a rough estimate of about of “21 000 child deaths since 2010”.

What then is the actual reason for Botswana’s poor performance in the fight against HIV/AIDS?

It is clear that Botswana lacks specific legislation that guarantees the right to health for children living with HIV/AIDS. This leaves the population at risk, particularly vulnerable groups such as children. Whiles many policies on HIV/AIDS do exist, it is important to emphasise that a right-based approach is the best way to go. This is the case because policy based approach usually depends on the discretion of the executive whereas a right-based approach provides an opportunity to challenge executive actions and inactions. For example, a right-based approach will provide redress when a health worker or the government delays in implementing a treatment programme or where a health worker unlawfully discloses someone’s HIV status. It is important that Botswana incorporate an HIV rights provision into their constitution or at the very least enact an HIV/AIDS legislation to protect the rights of HIV affected persons in Botswana, including children. This approach had a significant impact in South Africa’s campaign on HIV/AIDS. In South Africa, the government or private individuals can be taken to court for any violation on the rights of HIV affected persons. The Treatment Action Campaign case is a very apt example of the positive results a right based approach can offer in an HIV/AIDS campaign.

Botswana must also enact legislations that guarantee a right to medical care and treatment for certain vulnerable classes of peoples such as gays, lesbians, prisoners, sex workers and minorities if a significant reduction of the epidemic is to be realised.

Change of attitudes and behaviour remains a big challenge in the HIV/AIDS campaign in Botswana. There is therefore an urgent need for legislations to be put in place to influence good attitudes and behaviours. Increasing the price of alcohol products as a strategy for fighting the spread of HIV AIDS can be counterproductive.

From the above research findings, it is evidently clear that more work needs to be done in Botswana especially in terms of legislation if the fight against HIV/AIDS is to be won. In my view, applying the rights-based approach could be the best way forward.

About the Author:
Rashid Dumbuya holds Bachelor of Arts (BA) degree and a Bachelor of Law LLB (Honours) degree from the Fourah Bay College, University of Sierra Leone (Sierra Leone). Rashid Dumbuya is a practising Barrister and Solicitor in the Republic of Sierra Leone and an LLM Candidate at the Centre for Human Rights University of Pretoria, South Africa. Dumbuya has also worked for the office of the Prosecutor, Special Court for Sierra Leone, and the United Nations Development Programme Access to Justice Office in Freetown, Sierra Leone.