By Oladele Kehinde Emmanuel
ABSTRACT
The regulatory frameworks that characterized HIV and AIDS under Nigerian legislation are examined in this research. In doing so, it unearths the myriads of provisions appreciated by the Nigeria judiciary while instilling substantial faith in the statutes enacted by the Nigerian National Assembly supposed to be the most comprehensive frameworks for the regulation of HIV and AIDS victims’ fundamental rights against discrimination in their relationships with others within Nigeria. It additionally investigates with substantive perspective the scope of procedures for enforcing the right, notably for PLWHA
Hence, this writer has embraced logical techniques to accomplish the aforementioned by reviewing in-depth the appropriate profiles of the accessible laws and relating the laws to the subject matter addressed.
Keywords: Non – Discrimination, Right, PLWHA, Remedy, Affirmative Action, Enforcement
INTRODUCTION
Plain as daylight is the fact that PLWHA in Nigeria are frazzled, being that the stereotypical construction of Nigeria Society has gaslighted them from understanding their comprehensive legal rights and its enforceability. The discovery of HIV/AIDS and its dreadful nature terrified everyone, and anyone infected is consequentially left in throes of despair of (deaths and the society). Despite the existence of stifling policies erected by the government, the majority has failed to escape the barn of seemingly self-inflicted pain and detestation[4]. UNAIDS[5] and the National Agency for the Control of AIDS has estimated that 1.9 million people are living with HIV in Nigeria[6]. And, national HIV prevalence is 1.4% among adults of age 15–49 years, women aged 15–49 years are more than twice as likely to be living with HIV than men (1.9% versus 0.9%.)[7] However, statistics said that 0.2 % is HIV prevalence among children of ages 0 –14.[8] significantly at the national level viral suppression among people living with HIV aged 15–49 years stands at 42.3% (45.3% among women and 34.5% among men). Now, the South-South zone of Nigeria has the highest HIV prevalence, at 3.1% among adults aged 15–49 years. In North Central zone the prevalence is (2.0%), the South East zone (1.9%). HIV prevalence is lower in the South West zone (1.1%), the North East zone (1.1%) and the North West zone (0.6%)[9].
While the elucidated statistics is true, it is imperative to reiterate that, the measures organized to medically sustain the PLWHA health and societal cohabitation as excellently beneficial as it is, hasn’t exonerated the victims from unfair treatments, unnecessary embarrassments, common sequestration cum discrimination and stigmatization portrayed by members of their locality. However, their deeds are necessitated seemingly because of unavailability of adequate sensitization on the rights of PLWHA against any forms of un coordinated act. Nevertheless, the members of the society are predictably innocuously ridiculous perhaps, because of not knowing that HIV/AIDS couldn’t be transferred from an infected to non infected person until the don’ts medically specified are violated, there non victims lives are highly safeguarded being that there will be no culture, practice or tradition which will encourage practices that expose people to the risk of HIV infection[10]
To this extent, this research, exposes extant regulatory frameworks defining right to non discrimination specifically for PLWHA and Acts amounting to discrimination, it further explain what constitutes occupationally acquired HIV infection with employers role, and states whether there exist procedures of right’s enforcement when contravene cum civil remedies with sanctions of the courts. Finally, eligibility of PLWHA or affected, to social security; care and support in community and working place is examined with conclusion.
CONSTITUTIONAL PROTECTION OF CITIZENS’ RIGHTS AGAINST DISCRIMINATION NOT EXCLUDING PLWHA
The Constitution Of The Federal Republic Of Nigeria(As amended 2011)[11] has within the purview of Chapter IV vividly stated among the fundamental human rights, the right to freedom from discrimination, although leaving the inclusion of PLWHA against discrimination in obscurity, emphatically it states in section 42(1) inter alia-
“that a citizen of Nigeria of a particular community,ethnic group,place of origin,sex religion or political opinion shall not,by reason only that he is such a person be subjected either expressly by,or in the practical application of,any law in force in Nigeria or any executive or administrative action of the government,to disability or restrictions to which citizen if Nigeria of other communities ,ethnic groups places of origin,sex, religions or political opinions are not made subject”
Sequence to this, it is veracious that the “disability” stated within the above Provision could be interpreted as “physical or mental condition that could prevents someone from performing certain acts or lack of legal capacity, caused by a condition such as infancy or insanity[12] It failed to expressly encapsulate the dreadful sexually transmitted disease suffered by the PLWHA. Nevertheless, the tenet of the constitution remains supreme as the grundnorm which wouldn’t accommodate any inconsistency that emanates after[13] Therefore, impliedly, the constitutional subject of non discrimination has protected all citizens irrespective of health condition that could avail restrictions. To that extent, Kayode Eso J.S.C in the case of Ransome kuti &Ors v. AG federation & Ors[14] has explained the non immutability of the right. Being that the fundamental rights to non discrimination is inclusive, it shouldn’t be violated.
“But what is the nature of a fundamental right? It is a right which stands above the ordinary laws of the land and which in fact is antecedent to the political society itself. It is a primary condition to a civilized existence and what has been done by our constitution, since independence, starting with the Independence Constitution, that is, the Nigeria (Constitution) Order in Council 1960 up to the present Constitution, that is, the Constitution of the Federal Republic of Nigeria, 1979 is to have these rights enshrined in the Constitution so that the rights could be “immutable” to the extent of the “non-immutability” of the Constitution itself”
Agreeably, this fundamental rights to non discrimination in the CFRN must be significantly upheld to no one’s mis use against other citizens especially carrier of HIV/AIDS virus. Even, PLWHA has the right to seeking redress against any person or institution for any breach of his or her constitutional rights in accordance with the provisions of Section 42 of the 1999 Constitution of the Federal Republic of Nigeria(As amended 2011)[15] More so, people living with or affected by HIV/AIDS should be supported with reasonable accommodation by an individual, community or employer[16]
PROTECTION OF THE RIGHTS OF PEOPLE LIVING WITH OR AFFECTED BY HIV/AIDS FROM DISCRIMINATION ON THE BASIS OF THEIR HIV STATUS.
The HIV AND AIDS(ANTI-DISCRIMINATION)ACT,2014 being an act enacted by the National Assembly[17] has aided the Constitutional provision on the right of the PLWALHA against discrimination, this is without inconsistency to the grundnorm, it explicitly discusses stricto senso that people living with or affected by HIV/AIDS have right against being discriminated on the basis of their real or perceived HIV status concerning access to and continued employment, conditions of employment, employment benefits, comprehensive health services, education, use of public facilities and other social services, provided by the employer, individual community, government or any other establishment[18] It worthwhile to note that individual in the communities, institutions, employers and employees responsibility to prevent HIV-related stigma and discrimination in the society[19]These roles of the populace are embedded in section 4[20] as follows:-
4(1) Every individual, community, institution and employer shall take steps to protect the human rights of people living with or affected by HIV or AIDS by eliminating HIV-related discriminations in all settings, including employment, health and educational institutions, policies and practices.
(2) Every individual, community and employer shall take steps to promote equality of opportunity and treatment and non-discrimination on the basis of real or perceived HIV status and HIV-related illness.
Whereas the right to take affirmative action that is consistent with the HIV AND AID (ANTI-DISCRIMINATION)ACT,2014 is defined by limiting every individual, community, institution, employer or employee from discriminating directly or indirectly, against persons’ on the basis of their HIV status or perception of same in employment, delivery of services and other benefits[21] Flowing from this , affirmative action[22]includes measures designed to ensure that people living or affected by HIV or AIDS enjoy equality of opportunities and treatment in relation to employment and occupation, identify and eliminate barriers which adversely affect people living with and affected by HIV or AIDS; and further diversity (including gender diversity) in the society based on equal dignity and respect for all people. Subsection 4 of this section obliterates any act or omission concerning policies and practices that would establish a barrier to the continued enjoyment of personal or constitutionally guaranteed rights on the basis of their real or perceived HIV status.
AN EXPOSITION ON THE ACTS AMOUNTING TO DISCRIMINATION
The enacted Act[23]has made any acts amounting to discrimination on the basis of real or perceived HIV status an offense[24]These criminalized act include:- denying or removing from such person any treatment, medication or any supporting and enabling facility for their functioning in the society; refusal to accept and offer treatment by a qualified medical personnel, except in such cases when the special care or facilities specifically required for treatment of HIV or AIDS does not exist in that health facility; failure to remove, eliminate or ameliorate any obstacle that unfairly limits or restricts such a person from enjoying equal opportunities or failing to take steps to reasonably accommodate the needs of such a person; refusal to admit into school or not allowing them to continue in an educational institution; denial of access to and use of religious or worship areas and services; denial of access to and use of communal places, residential spaces and other social facilities; depriving such persons of the right to an elected or appointed public or private office or admission to a public or private function; denial of access to credit, loans and insurance services so long as the person has disclosed, where required, in utmost good faith, his or her status to the insurance company or financial institution; also, denial of access to any other places of human endeavour; and finally, prohibiting such persons from marrying anyone of their choice provided the latter’s informed consent is obtained in a right frame of mind and he or she is informed about his or her partner’s HIV status.
These shall be, provided that the status, nature or conduct of the person so concerned is not such as may expose other persons to the danger of contracting the virus.
THE ELIGIBILITY OF PLWHA OR AFFECTED, TO SOCIAL SECURITY; CARE AND SUPPORT IN COMMUNITY AND WORKING PLACE
The HIV status (real or perceived) of an employee shall not affect his or her eligibility for any occupational or other benefit scheme provided for employees.[25] Meanwhile, employer, institution, body or individual shall require HIV test as a precondition to an offer of employment, access to public or private services or opportunities, except where it is shown, on the certification of two competent medical authorities (working independently) to the Court, that failure to take such a test constitutes a clear and present danger of HIV transmission to other[26]
Additionally, where under any existing law, the eligibility of a person for any occupational or other benefit scheme is conditional upon an HIV test, the conditions attached to HIV and AIDS shall be the same as those applicable in respect of comparable chronic conditions[27] The combined reading of subsections (3)(4) of section 14 of the Act[28] outlined that where an employee decides not to undergo an HIV testing, no inferences concerning the HIV status of the employee may be drawn from such exercise. And, perhaps, an employee undergoes an HIV testing, the employer shall not, unless the occupational or other benefit scheme is operated by the employer, be entitled to information concerning HIV status of the employee concerned. Mores so, all data of PLWHA or affected, with respect to their health and medical must be protected[29]
Consequentially, anyone who fails to comply with afore Provision has committed an offence liable on conviction to a fine of not Less than five hundred thousands naira (for an individual) and one million naira for an Institution or for a term not exceeding two years, or to both fine and imprisonment[30]the disclosure of data and status of PLWHA could only be for their partner in marriage[31]and when status is disclosed voluntarily by the PLWHA, it must not be disclosed to other person’s without the written consent of the Person that made such disclosure[32] the written consent could be given by the person or as the law permit[33] HIV testing must be done in compliance with the National HIV Counselling and Testing Guidelines to any person who has requested for it in circumstances recognized by the Act[34]
OCCUPATIONALLY ACQUIRED HIV INFECTION AND THE EMPLOYERS’ ROLES
When the infection is occupationally acquired, every employer has a duty, as far as is practicable, to provide a safe workplace and this shall include ensuring that the risk of occupational exposure to HIV is minimized[35]In doing so, every employer[36] engaged in business where there is a risk of occupational transmission of HIV within the workplace shall ensure that it adopts a safety procedure that provides:
(a) appropriate training, awareness and education on the use of universal infection control measures so as to identify, deal with and reduce the risk of HIV transmission in the workplace;
(b) appropriate personal protective equipment and materials to protect employees from acquiring or transmitting HIV;
(c) the steps to be taken following an occupational accident including the appropriate management of occupational exposure to HIV and other blood borne pathogens, including access to post-exposure prophylaxis;
(d) the procedures to be followed in applying for compensation for occupational infection; and
(e) adequate monitoring of occupational exposure to HIV to ensure that the requirements of possible compensation claims are met.
Additionally, the employer must report occupationally acquired HIV infections to the Minister right from the date of discovery[37] However, it is an offence for an employer to fail to comply with the provisions or to knowingly or recklessly make any statement or produce any document that is false in any material particular unless such employer shows that he had taken all reasonable steps to ascertain the truth of the statement made or contained in any document so produced or to satisfy itself as to the genuineness of any such document[38] sequence to that, an employer who contravenes subsection it has committed an offence and is liable on conviction to a fine of not less than N250, 000.00 or to imprisonment for a period not exceeding one year or to both such fine and imprisonment. Hence, to enhance infected employee’s confidentiality, the employer should directly send report r a designated Desk Officer at the Office of the relevant Minister.
Significantly, the role of the employer in whose workplace an employee becomes infected with HIV is also the provision of the employee with reasonable support[39] prior to sero-conversions which means “the development of HIV antibodies; it goes from antibody-negative to antibody-positive. It may take from as little as from one week to several months or more after infection with HIV for antibodies to the virus to develop” and during sero-conversion phases of the infection including costs of medical tests and supply of medicines and treatment for opportunistic infections.
THE NECESSITY OF COMPENSATION AND THE CONDITIONS
Provided that an employer or provider of service is not liable for HIV infection arising from an act not done for the purpose of, and in connection with, the employer’s or service provider’s business or trade, an employee or client who becomes infected with HIV in the course of employment or receiving a service shall be entitled to compensation[40]Contrarily, an employer or service provider shall not be liable to pay compensation under this Act if it is proved that the infection resulted C the willful act of self-injury or gross negligence of the employee or client[41] an employer or service provider shall take reasonable steps to assist employees or clients with the application for compensation benefits this includes:- providing information to affected employees or clients on the procedures that will need to be followed in order to qualify for a compensation claim; and assisting with the collection of information which will assist in proving that employees or clients were occupationally exposed to HIV infection[42] But, when there is breaching of rights, infected employee’s rights will be integrated into the grievance Procedures existing in the working place[43]
NEED FOR WORK PLACE POLICY IN WORKING ENVIRONMENT
An employer employing five persons or more shall, in consultation with the employees or their representatives, adopt a written workplace policy that is consistent with the National HIV and AIDS Workplace Policy for its working environment[44] an organization in business as at the commencement of Act, shall be required to adopt such policy within twelve months of the commencement of the Act Organization established after the commencement of the Act, must adopt the policy within twelve months of commencement of business. It is needful for an employer to lodge a copy of the organization’s adopted HIV and AIDS Workplace Policy with the Minister within one month of its adoption for approval[45] Meanwhile where a co-operation agreement between employers and employees’ unions or representatives on HIV and AIDS workplace programming exists, an employer shall lodge a copy of such agreement with the Minister within one month of its adoption[46] any employer who fails to comply with the provisions of the explained section has committed an offence and liable on conviction[47]as follows:-
(a) in the case of subsection (1), to a fine of N250, 000 for the first year of default and N100, 000 for each subsequent yea or part thereof that the offence continues;
(b) in the case of subsections (2) and (3), to a fine of N10, 000 for every day or part thereof that the offence continues.
(5) An employer who, with intent to deceive, gives false information about the existence of a workplace policy or co-operation agreement commits an offence and is liable on conviction to a fine of N500, 000.
GENERAL OFFENCES WHICH ARE TANTAMOUNT TO DISCRIMINATION AND PENALTY FOR NON COMPLIANCE
This offence could include threat, discrimination and offer of inducement, the HIV AND AIDS(ANTI-DISCRIMINATION)ACT,2014 explained[48]. However, the discrimination against any person includes, but is not limited to, prejudicing anyone because of a past, present or anticipated disclosure of information that he or she is lawfully entitled to or required to give in any proceeding; exercising any right conferred by this Act or participating in any proceeding under this Act[49] when there’ non compliance[50] anyone that contravenes the Act commits an offence and liable on conviction to a fine of not less than N500,000 for individuals and N2,000,000 for organizations, or imprisonment for a period of not less than one year or to both such fine and imprisonment but in the case of an organization, the head or representatives of the board of the organization shall be held liable. Also, there is a liability for legal persons’ that is individual or corporate body shall be liable for the acts of its officers contravening the provisions of this Act, provided that nothing shall exclude such officers from personal liability for their acts[51]
PROCEDURES FOR LEGAL RIGHT ENFORCEMENT( CIVIL REMEDY AND SANCTIONS)
The Minister of Justice shall ensure compliance with and enforce the provisions of this Act[52]having saddled with the responsibility to conduct inquiry into any allegation of a contravention. He makes necessary recommendations to an institution or individual pursuant to an inquiry carried out and effectively commence criminal proceedings against anyone in a Court of competent jurisdiction. A person who has been affected by a contravention or who has knowledge of a contravention of the Act shall have the right to petition the Minister of Justice[53] Then, the Minister shall recommend[54] based on ascertainment of the inquiry on the contravention and the institution or community alleged must take steps of redressing the contravention and the steps may include but not limited to hiring or admitting the person adversely affected, Reinstatement or reabsorbing of the affected person, restoration of benefits, entitlements or rights denied as a result of such contravention, payment of compensation or damages to the person affected by the contravention.
Furtherance to this, the PLWHA shall have the right to commence a civil suit like others in the community because; the judiciary is vested with power to entertain all actions and proceedings for determination of any question relating to civil rights and obligations of (Any persons) is explicitly accessible in section 6(6)(c)[55] the word “any persons” simpliciter is an umbrella term for everyone irrespective of conditions ( physical or mental) in as much as their fundamental rights is involved. And for emphasis it is provided in section 26(1) of the HIV AND AIDS(ANTI-DSCRIMINATION)ACT,2014 below:-
(1) Nothing in this Act shall limit the personal right of an individual or group affected directly by a contravention of this Act to bring a civil action in court against any person or institution provided that whoever elects to do so shall communicate his or her decision to the Minister of Justice in writing alongside the petition.
Meanwhile, the express provisions of this Act as regards imposition of criminal sanctions, does not excludes the Court if decides to make any appropriate order that is just and equitable in the circumstances[56]the order may include payment of compensation to the affected person or group; or payment of damages to the affected person or group; and perhaps the court gives an order directing the individual or institution to take steps to prevent discrimination or other contraventions occurring in the future in respect of other; and it could be an order directing the deregistration of a corporate body or withdrawal of an individual professional license.
CONCLUSION
The enforcement of PLWHA rights are systematically outlined in this research. While it is settled that defined numbers of legislations have emanated to the effect of regulating PLWHA rights against discrimination. Nonetheless, the thorough dissection of The HIV/AIDS(ANTI-DICRIMINATION) ACT,2014 which has availed limitlessly procedures necessarily maximized when their rights are contravenes stands as an eye opener. Against this backdrop, developed countries have made awareness on procedures of enforcing and protecting the right of PLWHA. Therefore, affected Nigerian shouldn’t be excluded from knowing and understanding their rights.
[1]LLB PART II. Department Of Civil Law, Faculty of Law Ahmadu Bello University Zaria, Kaduna State Nigeria. e-mail: Oladelekehindeemmanuel2405@Gmail.Com.
[2] HIV AND AIDS (ANTI-DISCRIMINATION)ACT,2014: “HIV” means Human Immunodeficiency Virus
[3] People Living With HIV/Aids.
[4] Kehinde. E Oladele, A Legal Analysis Of Ripe Political Society: Nigeria As A Case Study ( un published)
[5]The Joint United Nations Programme on HIV/AIDS (UNAIDS) was launched in 1996 to strengthen the way in which the UN was responding to AIDS.
[6] https://naca.gov.ng/nigeria-prevalence-rate/. Accessed on 20th of May, 2022.
[7] Ibid
[8] Ibid
[9] Ibid
[10] Opcit. S(1)
[11] Section 318 of 1999 Constitution of federal Republic of Nigeria(as amended 2011)
[12] Law Dictionary Offline.
[13] Opcit. S. 1(3)
[14] Ransome kuti &Ors v. AG federation & Ors (1988) LPELR – 2940 (SC)
[15] Supra, section 28 of the HIV AND AIDS (ANTI DISCRIMINATION ACT),2014
[16] Ibid. S(7)
[17] In S.67 of the Second schedule to legislative Powers, Part l(Exclusive Legislative List) Of the CFRN (AS amended 2011) it states that “ Any other matters with respect to which the National Assembly has powers to make laws in accordance with the Provisions of this Constitution” This Provisions encapsulates the enactment of Hiv and Aids (Anti-Discrimination)Act,2014.
[18] Section S.3(1) Of the HIV AND AIDS (ANTI-DISCRIMINATION) ACT,2014
[19] Ibid. S.3(2)
[20] Ibid. S.4(1)(2)
[21] Ibid. S.5(1)
[22] Opcit. S.4(3)
[23] Supra: HIV AND AID (ANTI-DISCRIMINATION ACT),2014.
[24] Ibid. S.(6)
[25] Ibid. S.4(1)(5)
[26] Ibid. S.9(1)
[27] Ibid. S.14(2)
[28] Supra:HIV AND AID (ANTI DISCRIMINATION) Act,2014
[29] Ibid. S.13(1)
[30] Ibid. S.13(2)
[31] Ibid. S.8(2)
[32] Ibid. S.10(3)
[33] Section 11(1)
[34] Op.cit. S.10(1)(2)
[35] Ibid. S.15
[36] Ibid. S.16
[37] Ibid. S. 17(1)
[38] Ibid. S. 17(2)
[39] Ibid. S. 18
[40] Opcit. S. 9(1)
[41] Ibid. S. 19(2)
[42] Opcit. S. 19(2)(a)(b)
[43] Ibid. S. 20
[44] Ibid. S. 21(1)
[45] Ibid. S. 21(2)
[46] Opcit. S. 21(3)
[47] Ibid. S. 21(4)(a)(b)
[48] Ibid. S.22(1)
[49] Ibid. S. 22(2)
[50] Ibid. S. 23
[51] Ibid . S. 29
[52] Opcit. S. 24(1)
[53] Ibid. S. 24(2)
[54] Ibid. S. 25(1)
[55] Supra: 1999 CFRN Section 6(6)(c)
[56] Opcit. S. 27