HIV/AIDS and the law in South Africa and Nigeria with particular reference to the right of women : a comparative perspective

Abstract

This thesis is an attempt to investigate the contribution of law, statutory or customary, and other associated legal and non-legal factors, including the adequacy or otherwise of public policy responses, in South Africa and Nigeria, as contributory factors rendering women more susceptible to HIV/AIDS. The analysis of women's susceptibility to HIV/AIDS in South Africa and Nigeria, is the main thrust of this work. Complimentary to this major thrust is a focus on the etiology, causes, manifestations and prevention of HIV/AIDS and the legal implications, the underlying factors that render women most susceptible to it and how the law can be utilized to redress the issue of vulnerability. Though the rights of women as guaranteed by domestic and international instruments are discussed, their application is limited to the extent of their utilization to enforce women's legal rights. Some of the major findings of the thesis are as follows : - Fewer shortcomings were identified in the South African legal regime and public policy responses on HIV/AIDS than in the Nigerian responses. - The higher vulnerability of women to HIV/AIDS in both countries indicates that all the identified gender- related factors are actually impacting adversely on women. - The study established some causal nexus or connecting links between HIV/AIDS, poverty and human rights abuse ; gender discrimination, gender factors, customary law/traditional practices and HIV/AIDS.

- The higher vulnerability of Nigerian children stems from the poor or inadequate legal and public policy responses to the epidemic and the vulnerability of women. These are some of the recommendations of the thesis : - Limited derogatory and coercive measures, with due regard to the tenets of human rights, in terms of mandatory HIV testing of all pregnant women and new born babies, and all intending marriage partners, to afford early diagnosis and treatment for HIV if necessary. - The South African government must take reasonable steps to ensure greater access to health care services. - The South African Constitution should be amended to incorporate justifiable right to health care in the context of HIV/AIDS, including the right to home- based care. - The Nigerian government must domesticate all her international law/treaty obligations, some of which impose both negative and positive obligations, for the benefit of those vulnerable to HIV/AIDS. - In Nigeria, constitutional amendments providing for enforceable socio-economic rights, embracing health care and home-based care , especially in the context of HIV/AIDS, and a dynamic national HIV/AIDS agenda that provides for free and voluntary HIV counselling, testing and treatment at state expense, should be undertaken. - Governments in both countries must address more vigorously the customary law and gender-related factors that render women more vulnerable to HIV/AIDS.