Realising Equality in Access to HIV Treatment for Vulnerable and Marginalised Groups in Africa

This article examines the relevance of the concept of equality in improving access to HIV treatment for vulnerable and marginalised groups in Africa. The article argues that though modest achievements have been made in expanding access to HIV treatment for those in need in Africa, this expansion has concentrated on the general population with little focus on the needs of vulnerable and marginalised groups in society, especially children and sex workers. It further argues that applying the notion of equality to HIV treatment is crucial to alleviating the impact of the epidemic on vulnerable and disadvantaged groups. In conclusion, it is argued that if the aim of realising universal access to treatment for all by 2015 is to be achieved, it is imperative to ensure equal access to HIV treatment for disadvantaged groups such as children and sex workers.

Against this background, this article examines the relevance of the concept of equality in improving access to HIV treatment for vulnerable and marginalised groups in Africa. The article argues that though modest achievements have been made in expanding access to HIV treatment for those in need in Africa, this expansion has concentrated on the general population without focus on the needs of those most vulnerable and marginalised in society, especially children and sex workers. In conclusion, it is argued that if the aim of realising universal access to treatment for all by 2015 is to be achieved, it is imperative to ensure equal access to HIV treatment for disadvantaged groups such as children and sex workers.

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The importance of equality in accessing health care services Equality, like most legal terms, is incapable of a generally acceptable definition. This is because the term could mean different things to different scholars. However, it has been recognised that equality is tantamount to non-discrimination. Hence, an act of discrimination will lead to the violation of the right to equality. 11 The principle of nondiscrimination has been well recognised in most human rights instruments. For instance, article 2 of the African Charter on Human and Peoples' Rights (the African Charter) provides that every individual shall be entitled to enjoy all the rights guaranteed in the Charter without distinction as to race, sex, political belief, religious belief and other status. 12 Furthermore, article 3 provides that all individuals shall be equal before the law and that they shall be entitled to equal protection of the law. a meaningful and convincing interpretation of the concept of discrimination starts from its historical genesis as principle directed at protecting groups, which have suffered from structural disadvantage, from patterns of exclusion, and not just from one negative incidental impact… Sensitive groups thus need stronger protection against classification with a negative impact… Such an asymmetrical conception of discrimination acknowledges harm caused by measures which disadvantage vulnerable and subordinate groups is, indeed, a greater evil which merits more suspicion than measures which disadvantage power and otherwise privilege groups.
It should be noted that the enjoyment of the right to health guaranteed in various human rights instruments 23 can be realised only in the absence of any form of distinction or discrimination. For instance, article 12 of the International Covenant on Economic, Social and Cultural Rights (the ICESCR), the most comprehensive provision on the right to health, guarantees the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. According to the Committee on ESCR, 24 the enjoyment of the right to health is dependent on other rights such as rights to life, privacy, dignity and non-discrimination. The Committee has further noted that an essential minimum core of the right to health includes realising access to health care services to all on a non-discriminatory basis. In the Committee's view, the Covenant proscribes: 25 differential treatment based on sex and whose objectives or effects compromise or destroy the recognition, enjoyment or the exercise by women, regardless of their mental status, of human rights and fundamental freedoms in all spheres of life". any discrimination in access to health care and the underlying determinants of health, as well as to means and entitlements for their procurement, on the grounds of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, physical or mental disability, health status (including HIV/AIDS), sexual orientation, and civil, political, social or other status which has the effect of nullifying or impairing the equal enjoyment or exercise of the right to health.
More importantly, the Committee has reasoned that in realising the right to health for all, the equality of access to health care must be emphasised. Furthermore, with regard to access to health care services, states are obliged to eliminate discrimination on internationally prohibited grounds, especially the core content of the right to health. Undoubtedly, these explanations of the Committee tally with the notion of substantive equality in health care services. More specifically, the Canadian Supreme Court has demonstrated the importance of substantive equality in access to health care services for vulnerable groups in Eldridge v British Columbia (Attorney-General) 28 . In that case, some of the issues before the Court were premised on whether or not sections 3, 5 and 9 of the Hospital Insurance Act and the Regulations infringed section 15 (1)  In the present case the adverse effects suffered by deaf persons stem not from the imposition of a burden not faced by the mainstream population, but rather from a failure to ensure that deaf persons benefit equally from a service offered to everyone. Once it is accepted that effective communication is an indispensable component of the delivery of a medical service, it is much more difficult to assert that the failure to ensure that deaf persons communicate effectively with their health care providers is not discriminatory. To argue that governments should be entitled to provide benefits to the general population without ensuring that disadvantaged members of society have the resources to take full advantage of those benefits bespeaks a thin and impoverished vision of s. 15(1). It is belied, more importantly, by the thrust of this Court's equality jurisprudence.
The relevance of this case is that it clearly requires states to do more than meeting the needs of the general population. They need also to take into cognisance the peculiar needs of some members of society who are vulnerable, disadvantaged or marginalised. This reasoning of the court is crucial to our discussion relating to ensuring equal HIV treatment for children, sex workers and men who have sex with men (MSM) in Africa. The discussion that follows will show that it is imperative for African governments, using the substantive equality approach, to improve access to HIV treatment for vulnerable and marginalised groups such as children and sex 28 Eldridge v British Columbia (Attorney-General) 1977 151 DLR (4th) 577. 29 Eldridge v British Columbia (Attorney-General) 1977 151 DLR (4th) 577.
workers as a matter of obligation and in order to meet the target of universal access to health care for all by 2015.

Applying a rights-based approach to the access to HIV treatment for vulnerable and marginalised groups in Africa
It is widely agreed that realising access to treatment for all constitutes an integral part of the right to health. Echoing this position, the UN General Assembly has noted that access to treatment in the context of HIV/AIDS is one of the fundamental elements required if the world is to "achieve progressively the full realisation of the right of everyone to the enjoyment of the highest attainable standard of physical and mental health". 30 This presupposes that a human rights approach must be adopted in the provision of health-related services, including access to HIV treatment. The question may then be asked: what does a rights-based approach to health services mean? Adopting a rights-based approach to health related services implies that all health policies, plans and programmes must be grounded on respect for people's fundamental. 31 Moreover, it presupposes assessing and addressing the likely human rights implications of health decisions, plans or programmes. More importantly, a rights-based approach requires making human rights an integral part of the design, implementation, monitoring and evaluation of health-related policies and programmes. 32 Some essential elements of a rights-based approach to health services include safeguarding human dignity, ensuring the provision of a health care system that is accessible to all, giving attention to gender-related issues, removing advertent or inadvertent discrimination in the ways in which services are rendered, and paying special attention to the rights of vulnerable and marginalised groups in society. 33  with disabilities, sex workers and economically disadvantaged and other marginalised groups must be given special attention.
In many societies, vulnerable and marginalised groups are often disproportionately affected by health problems. While in some cases this situation may not be envisaged, it is generally agreed that overt or implicit discrimination will violate the fundamental rights of individuals. 34 Although not all discrimination amounts to a violation of rights, an unjustified and unfair differential treatment will no doubt amount to a violation of human rights. 35 Over the years, grounds for non-discrimination in the context of health-related services have evolved to include proscribing "any discrimination in access to health care and underlying determinants of health, as well as to means and entitlements for their procurement, on the grounds of race, colour, sex, language, religion, political or other opinion, national and social origin, property, birth … and other status". 36 Mann has argued that most public health programmes and policies are replete with "inadvertent discrimination" to the extent that public health policies and programmes should be deemed discriminatory until otherwise proved. 37 In other words, public health policies are potentially a threat to the enjoyment of human rights. This is often so because policymakers scarcely ever consider the human rights implications of public health policies or programmes. As stated above, while African governments have made positive efforts to realise access to HIV treatment for the general population, gaps still exist with regard to the position of vulnerable and marginalised groups. The next section of this article focuses on the situation of children and sex workers.

Children
Globally the health needs of children in the context of HIV/AIDS 54 and has urged governments to incorporate a "youth-friendly" approach in the delivery of reproductive health services, including HIV/AIDS care services. 55 The call for the adoption of "youth-friendly" health care services would seem to cover the plight of children, given that under international law children are persons under the age of 18, while young persons have been described as persons between the ages of 15 and 24 years. 56 At the regional level, the Africa Union in its Abuja Declaration expresses grave concern about the high incidence of the mother-to-child transmission of HIV and requests member states to take appropriate measures with a view to addressing the special needs of children in the context of the epidemic. 57 Moreover, African governments agreed to: 58 [M]obilize all the human, material and financial resources required to provide care and support and quality treatment to our populations infected with HIV/AIDS, Tuberculosis and Other Related Infections, and to organize meetings to evaluate the status of implementation of the objective of access to care.
While it is noted that the Abuja Declaration is not binding on African governments, nonetheless it constitutes a moral obligation requiring African governments to fulfill the commitments made during the Declaration.
In the Treatment Action Campaign 59 case the South African Constitutional Court held that the failure on the part of the South African government to ensure access to antiretroviral therapy at public health institutions to prevent the mother-to-child government that its inability to provide such services was due to a lack of resources.
According to the Court, such an excuse was untenable given the importance of preventing HIV transmission from pregnant mothers to their unborn children.
Although this case dealt specifically with the prevention of the mother-to-child Health clinics that offer HIV testing and treatment services in Uganda regularly deny sex workers access to care and withhold anti-retroviral medications on the grounds that there are other people, whose jobs are legal and who aren't engaged in immoral activities, who are more deserving of treatment. Some healthcare workers regard time and HIV/Aids resources spent on sex workers as a waste.
Generally, people living with HIV encounter discriminatory attitudes on a daily basis.
Studies have shown that socially marginalised groups already tend to suffer the most severe forms of HIV-related stigma and discrimination. 69  prevention and treatment programmes on HIV/AIDS. The result is that a significant number of sex workers lack access to HIV treatment. A report has shown that less than a third of sex workers in need of HIV prevention receives it. 72 Worse still, less than this figure received appropriate HIV treatment, care and support. 73 Reports from some African countries such as Lesotho, Mozambique and Senegal have revealed that the stigma and discrimination against sex workers and other sexual minorities constitute great barriers to access to HIV treatment, care and support. 74 This is a violation of the rights to health and life of sex workers. More importantly, it violates the right to non-discrimination of sex workers.
The Committee on ESCR has noted that health care services must be provided to all without discrimination against vulnerable and marginalised groups. Obviously, this necessarily includes sex workers, who are daily subject to stigmatisation and abuse.
The Committee has reiterated this in some of its concluding observations to states parties. For instance, in one of its concluding observations to the government of Dominican Republic, the Committee emphasised that the forced prostitution of women and the trafficking of women and girls may lead to serious health consequences not only for these groups but for the country's population at large. 75 Thus, the Committee has enjoined the government to take the necessary steps to ensure that these women's right to health is protected.
Although the Committee on CEDAW has not been very consistent in its statements

Conclusion
As seen from the above discussion, it is imperative that African governments adopt a comprehensive approach to HIV treatment and care, which must take into cognizance the peculiar needs of vulnerable and marginalised groups such as children and sex workers. Such an approach must be based on the notion of