Botswana: HIV, Aids legislation crucial
14th October 2009
Legal response in the form of legislation in the area of HIV and Aids within the Sadc region has been slow and inadequate, but rather than cite lack of relevant domestic laws and turning away litigants, the courts can turn to international law for guidance, a prominent judge has said.

Botswana High Court Judge Dr Key Dingake made the observation recently when he addressed participants at a joint Sadc Parliamentary Forum and Sadc Tribunal workshop in the country.

Judge Dingake said this legal deficit was not confined to HIV/Aids alone, but was evident in other spheres.

He said while there was some legislation in the area of labour, with respect to other areas of human endeavour, there was very little legislation.

He cited the insurance and education sectors as examples, and added that there was also very little legislation on preventing harmful cultural practices such as female genital mutilation and wife inheritance in parts of the region where these practices were prevalent.

"There is no doubt that there is an urgent need to attend to this legal deficit in our region. To this extent I must say that the Sadc Parliamentary Forum has done its best to help the countries of the region to come up with comprehensive legislation covering the broadest possible areas in the region. It has come up with the Model Law on HIV/Aids," he said.

Judge Dingake said the absence of comprehensive laws dealing with various issues in individual countries of the region often presented a dilemma for the courts.

"In the absence of legislation, what are the courts of law to do when they are confronted with issues in which the applicants seek relief not governed by any legislative framework? Are the courts to turn away litigants on the basis that there is no law?" he asked participants who included Sadc Tribunal judges, High Court judges, magistrates, lawyers, parliamentarians and representatives of organisations working in the area of HIV/Aids.

Judge Dingake said when domestic courts get stuck for lack of laws, that is the point at which international law should come in.

He defined international law as "Treaty Law" or law derived from international legal instruments and stressed that the use of international law varied from country to country depending on the legal systems obtaining in those countries.

He explained that in some countries international treaties are included in the country’s legal system and therefore form part of the country’s laws.

In some instances treaties have "self-executing status" and breach of treaty obligation may be enforceable in a court of law.

That, however, is not the case in countries that uphold the "dualist" system which maintains that law is an act of state will and that laws must be enacted by parliament before being enforced.

"Consequently in a dualist state, a treaty is not part of domestic law unless incorporated by the national legislature and in dualistic countries if there is a conflict between domestic and international law, domestic law takes precedence," he explained.

Botswana is a dualist system.

Treaties do not have the same status as laws enacted by the Botswana Parliament.

Ratified treaties have to be transformed into domestic laws first.

There are no constitutional provisions dealing with the status of international laws in Botswana.

In South Africa, the judge explained, customary international law is the law in the country unless it is inconsistent with the constitution.

Customary international law refers to those norms that the international community generally believes form part of the International Bill of Rights.

Most of the provisions of the Universal Declaration of Human Rights of 1948 constitute international customary law.

"The South African constitution provides that when interpreting legislation, interpretation that is consistent with international law must be followed," he said.

Judge Dingake also cited the examples of Namibia and Zimbabwe.

The Constitution of Zimbabwe provides that international customary law is part of the law of Zimbabwe unless if it is inconsistent with the Constitution.

In Namibia, unless otherwise provided by the constitution or an Act of Parliament, the general principles of public international law are binding on the country.

The judge said most countries of the Sadc region occasionally sought guidance from international law in cases in which there is a gap or ambiguity.

"The use of international law is gaining momentum and has become extremely helpful in those countries where there is inadequate legal framework to govern certain situations –— certainly in the area of HIV/Aids and the law", he said.

He gave several examples of legal cases in which the courts from different parts of the world had regard to international law.

Some of the cases involved discrimination against employees on the basis of their HIV status and forced testing for HIV by employers.

He said in countries in which laws had not been fully developed, great benefits could be derived from referring to international law.

When judges turn to international law for guidance and decide on cases accordingly, Judge Dingake said, "judge-made law" — which he does not think is ideal — emerges.

"In my view, judge-made law invoking international legal instruments, although proper and often warranted, cannot be a good substitute for a legislative framework that suits the circumstances of each country as declared by the representatives of the people, the Members of Parliament but in the absence of legislation by parliament, the courts cannot turn away litigants citing lack of legal remedy.

Evidently, a legal framework by Sadc parliaments could be highly beneficial in protecting the human rights of every person," he said.

He urged Sadc countries to adapt and adopt the Model Law as they deem fit because it complies with international human rights and best practices.

"It doesn’t follow that countries must transplant lock, stock and-barrel the Model Law into their national legal systems.

"All they need to do is to see which parts they may incorporate. The Model Law guarantees respect for human rights," he said.

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