Locations10 years of progress: Advancing rights, inclusion and health through the African Regional Judges Forum
August 1, 2024
Panelists discuss evidence-based decision-making during a session at the 10th African Regional Judges Forum, in Johannesburg, South Africa.
In the global response to HIV, many critical lessons have been learned. One lesson, however, stands out above the rest: an evidence and human rights-based approach is essential to ending AIDS and achieving the 2030 Agenda for Sustainable Development. Central to this strategy is an enabling legal environment, underpinned by progressive laws, robust enforcement and equitable justice systems.
This was one of the key findings of the Global Commission on HIV and the Law, a landmark initiative convened by UNDP on behalf of UNAIDS with the mandate of producing evidence-informed recommendations to promote effective responses to the HIV epidemic. Its recommendations called for countries to repeal punitive laws, policies and practices and enact protective ones that promote public health and human rights. In a direct response to this, a small group of senior judges together with UNDP established the African Regional Judges Forum in 2014.
This year marks the 10th anniversary of the Forum’s founding. Over the past decade, the Forum has been instrumental in creating enabling legal environments by advocating for the rights of marginalized populations – including lesbian, gay, bisexual, transgender, queer and intersex (LGBTQI+) people and key populations.
According to UNAIDS, the five main key population groups that are particularly vulnerable to HIV and that frequently lack adequate access to services are: gay men and other men who have sex with men, sex workers, transgender people, people who inject drugs and people in prisons and other closed settings. In all countries, key populations also include people living with HIV.
These groups often face discrimination, violence and criminalization, which push them away from essential health services and put them at disproportionate risk of HIV. In 2022 in sub-Saharan Africa, key populations and their sexual partners accounted for 25 percent of all new HIV infections.
Collaborative efforts and partnerships
With support from UNDP, working in partnership with the Southern African Litigation Centre (SALC), the Forum has evolved into a vital platform for sharing information, experiences and resources, including good practices and progressive rulings. From its initial gathering of 11 senior judges in 2014, it has grown to include over 120 members from Anglophone, Francophone and Lusophone countries. These members are united by a commitment to advancing progressive jurisprudence in HIV, health law and human rights.
On 26-28 June 2024, 46 senior judges from 18 countries gathered in Johannesburg, South Africa to celebrate a decade of progress in advancing rights in the region through impactful judicial engagement. This year’s Forum was organized by UNDP’s #WeBelongAfrica programme and SALC, with support from Women’s Link Worldwide.
Honourable Justice Key Dingake was the founder of the African Regional Judges Forum and continues to be a part of the core leadership group.
As a founding member of the Forum, Honourable Justice Key Dingake from Botswana reflected on the rationale for the Forum’s creation and the progress they have been able to achieve. “We thought that judges as members of an independent arm of the state – the judiciary – have a role to play in ensuring that the marginalized and the vulnerable are accorded the rights that are promised to them in our Constitutions: the right to human dignity, the right against discrimination and the right to life,” he said. “We have been able to break down the walls of prejudice in many respects and promote a culture of inclusivity, of tolerance, of honouring human dignity.”
In opening remarks at the 10th Anniversary Forum, Dr. Mandeep Dhaliwal, Director of UNDP’s HIV and Health Group, stated: “Good laws, enacted by parliaments and progressively interpreted and enforced in the courts, can protect the rights of vulnerable and marginalized people to equality, health and development and drive efforts to end AIDS – a pandemic which has brought immense suffering and cost millions of lives.”
A decade of impactful judicial engagement
Over the past decade, significant gains in advancing non-discrimination and gender equality have been achieved at the country and regional level for women, girls, LGBTIQ+ and other key populations in courts where Forum members preside, promoting inclusion and reducing vulnerability to HIV.
For instance, several countries have decriminalized same-sex sex, including Botswana, Mauritius and Namibia. In other cases, judiciaries have upheld the rights of LGBTIQ+ organizations to register, as seen in Botswana, Eswatini and Kenya.
In a landmark ruling on 21 June 2024, the High Court of Namibia declared the common law offences of sodomy and unnatural sexual offences unconstitutional and invalid, sending the message that all Namibian citizens, regardless of sexual orientation or gender identity, have fundamental rights and equality under the law.
There have also been gains in access to sexual and reproductive health rights in a number of countries, including upholding of abortion rights and confirming the right to abortion as a fundamental constitutional right in Kenya, prohibition of child marriage by the courts in Zimbabwe, challenging the coerced sterilization of women living with HIV in Kenya, as well as repealing laws or reviewing prosecutions involving overly broad application of laws criminalizing HIV transmission, such as by the courts in Malawi.
Alongside these gains, however, there are challenges, with an organized anti-rights and anti-gender pushback against advances in equality and non-discrimination. And despite the progress in the region, violence, stigma and discrimination persists.
“Members of the Forum have shared and debated court judgements from across Africa, fashioning a vibrant space for reflection and providing momentum for further developments in human rights jurisprudence,” said Anneke Meerkotter, Executive Director of SALC. “The excitement generated among judges from these engagements has brought to the fore the need for similar spaces at domestic and sub-regional levels, to support judges’ engagement with their peers on the role of the courts in protecting the rights of marginalized groups.”
Reflecting on the Forum’s decade of impactful engagement, participants at this year’s gathering expressed pride in being a part of strengthening inclusion and transforming legal environments. They recognized the professional and personal benefits of hearing directly from experts and affected communities and being able to draw on a network of peers and resources developed by UNDP and partners such as SALC.
Honourable Justice Zione Ntaba, Malawi, another founding member of the Forum, speaks in a session on laws that perpetuate discrimination and abuse of persons based on poverty, status and activism.
“The most significant achievement of this Forum over the past 10 years is that it provides a network judges can rely on for precedents and discussions, a resource many lack,” said Honourable Justice Zione Ntaba, Malawi. “It gives us the chance to interact with people we usually wouldn’t have an opportunity to engage with.”
“The materials that have come out of this Forum – the compendiums, training manuals, the sharing of cases themselves – are an amazing achievement,” she added.
Daughtie Ogutu, together with Sam Ndlovu and Danilo da Silva, shared perspectives from key and vulnerable communities.
Empowering vulnerable communities
One of the key lessons learned is the importance of including the voices of key and vulnerable populations in the Forum. Daughtie Ogutu, a longtime key populations advocate with the Africa Key Population Experts Group in Kenya, has been a part of the Forum since its inception. “Hearing some of the judges who have been a part of this journey for the past 10 years recall quotes from communities, including one I had made at the first Judge Judges’ Forum, was very profound for me,” she said. “It shows that having members of marginalized communities participate and share their lived experiences truly makes an impact.”
For Sam Ndlovu, an advocate for transgender health and rights with Trans Research Education Advocacy and Training, the opportunity to directly engage with and share the perspectives of trans people to senior judges is invaluable. “In our country of Zimbabwe, transgender people face significant challenges that affect their daily lives. Navigating public life becomes difficult, with even simple processes like transacting in the financial sector, traveling across borders or voting becoming formidable obstacles,” he said. “Health services often fail to address the specific needs of transgender people due to limited understanding. Progressive jurisprudence can play a crucial role in overcoming these challenges.”
Innovative resources and tools
In 2022, an online Community of Practice was established that helps to facilitate ongoing engagement and knowledge exchange in between the in-person meetings. Online databases, compendiums of cases and other publications have also been collated to share guidance and judicial examples of applying and interpreting the law to protect and promote the rights of vulnerable and marginalized people.
Just prior to the 10th African Judges Forum, UNDP released an updated version of its “Training Resource for Judicial Officers: HIV, TB, Key and Vulnerable Populations and the Law in Africa”. Originally published in 2022, this resource enhances the knowledge and understanding of judges and magistrates on law and human rights issues faced by people living with HIV, people with TB and key and vulnerable populations. The updated version includes new jurisprudence from Francophone and Lusophone countries and is now available in English, French and Portuguese to further empower judicial officers with the necessary knowledge, evidence, empathy and compassion to preside over these critical cases.
The “Guidance for Prosecutors on HIV Related Criminal Cases” is another resource developed by UNDP that has been utilized by Forum members. This guidance focuses on preventing the misuse of criminal law, which often targets individuals for transmitting HIV, exposing others to HIV risk or not disclosing their HIV-positive status. Evidence shows that such overly broad use of the criminal law is not effective public health policy. The guidance is intended for prosecutors, as well as lawmakers, judges, people living with HIV and public defenders.
“There’s just so much that is now at the reach of your fingertips,” said Honourable Justice Mercy Garekwe, Botswana. “You just open a website and you get all the information that you need, and you are better in a position to deal with whatever issues that come before you.”
Ensuring participation of judges from Francophone and Lusophone countries in the region has been crucial. “The collaboration between French, Portuguese and English-speaking judges has been enriching for all involved. We have learned from each other by sharing how we handle cases related to HIV and key populations,” noted Honourable Justice Mujinga Bimansha, Democratic Republic of the Congo.
Members of the Africa Judges Forum have also engaged in South-South sharing of experiences and good practices with peers in Eastern Europe and Central Asia, and the Caribbean. In both these regions, similar judicial fora have been established with support from UNDP.
As the Forum evolves, its focus has coincidingly expanded, delving into other interrelated and emerging issues. At this year’s Forum, for instance, members examined recent jurisprudence on the impact of climate change on poverty, migration, and health and development rights. Past forums have featured sessions on the impact of COVID-19 related laws and policies, HIV among people with disabilities, the vulnerability of transgender people to HIV, criminalization of HIV transmission, HIV and TB among prisoners, adolescent sexual and reproductive health and rights, HIV, Hepatitis C and people who use drugs, harmful cultural norms and their impact on HIV, privacy and data protection in the era of digital health, among others.
Looking ahead, with the continued support of UNDP and other partners, the Forum is poised to build on its achievements, ensuring that the legal landscapes in Africa are both inclusive and empowering, and that the rights of all individuals, regardless of their status, are protected and promoted. The next decade promises further advancements and sustained impact, as the Forum strives to create a world where equality, health and human rights are at the forefront of judicial engagement and decision-making.