A LAW TO PROHIBIT DISCRIMINATION AGAINST HIV/AIDS PATIENTS IN EBONYI STATE - NIGERIA

EBONYI STATE HOUSE OF ASSEMBLY

A law to prohibit all forms of discrimination against, and provide for all persons living with and affected with HIV/AIDS in Ebonyi State and other matters connected therewith or incidental thereto.	Long title
BE IT ENACTED by  the  House of Assembly of Ebonyi State of Nigeria as  follows:	Enactment
1.    This law may be cited as HIV/AIDS Anti-discrimination and protection bill, 2011 and shall come into force on the 31st day of August 2012.	Commencement
2.    Discrimination on any grounds, including one’s HIV status, is not only wrong in itself, but creates and sustains conditions leading to social vulnerability  to infection by HIV,  including lack of access to  an enabling   environment. In  recognition of the importance of law reforms on HIV/AIDS and  Human Rights  in Ebonyi State;  inview of the on-going Health Reforms being embarked upon by the Ebonyi  State Government, and in view of the wide scale discrimination on  account of HIV/AIDS faced by such groups as women, children, indigenous people, migrants, refugees, internally displaced   persons, prisoners, and other vulnerable segments of society, it has become necessary to enact and implement anti-discrimination laws in the context of HIV/AIDS as they affect citizens and residents of Ebonyi  State. In recognition of the stigma  and discrimination confronting  persons affected by HIV/AIDS; in realization that the  promotion and protection of  Human   Rights for all citizens and  residents  of Ebonyi State can reduce the negative effects associated  with HIV/AIDS  epidemic. In acknowledgement of the fact that lack of appropriate HIV related  legislation limits  the  ability of persons living with HIV/IDS to live positively and persons susceptible or vulnerable to the disease from being able to protect themselves from the disease; In recognition that this lack adversely affects the states ability to reduce the spread of HIV/AIDS and mitigate its impact, the government of Ebonyi State therefore hereby affirms and commits itself to the following HIV/AIDS anti –discrimination legislation.	Preamble
3.      In this law, except the context otherwise requires: “AIDS” means  Acquired Immune Deficiency Syndrome “Direct Discrimination” when a person treats another person less fovarably than a third person would have been treated in comparable circumstances. Attributes characteristics which are thought to be generally imputed to people of particular status. “Indirect Discrimination” when unreasonable condition or requirements such as mandatory HIV+ testing are placed as a pre-requisite for socio-economic benefits.  “Specific express consent” means written consent signed by the person being tested for HIV or by his/her authorized representative or family members in situations where the individual is unable to give consent in writing or otherwise. “Specific informed consent” consent based on clear and accurate information in a language he/her understands given to persons being tested as the nature, purpose and implications of the tests. “Mandatory of obligatory testing” means any forms of coercion and /or compelling pressure with  respect to known and /or unknown needs of person(s) resulting in testing without specific informed  or  expressed consent . “Vilification” means the making of statement based on stereotypes of a group that brings members of it into hatred,   ridicule or contempt. “HIV”  Means Human Immune Virus “Person infected by HIV and AIDS” means the person living with AIDS causing virus. “person affected by HIV and AIDS” means those presumed to  be infected by HIV as well as caregivers, partners, family members and associations. “HIV related circumstances” Means condition of being infected with or affected by HIV . “State” Mean Ebonyi State. The use of the term “appropriate”, “reasonable”, “justifiable” and “unjustifiable” required objective rather than subjective tests. “Safer sex” means sexual behaviours or practices that do not put one at risk of unwanted pregnancy STI or HIV infection. There are several ways to cautiously reduce the risk of pregnancy, STI/HIV infection and /or transmission. They include:  Abstaining from or delaying when to start having sexual intercourse. Decreasing number or sex partners to one faithful uninfected partner. Practicing monogamy Practicing non-penetrative sex Avoiding sex while on hard drugs/alcohol. Using male or female condoms correctly and consistently with every sexual  act. Condom (male and female) are 98%  effective in protecting against HIV  and STI  and are 95%  -97%  effective in preventing pregnancy  Practicing dual protection which entails condom use   when adopting other family planning methods, used consistently with every act sex . “Stigma : means any  negatively perceived characteristics and  to set individuals apart form normal society, and seen as marks of shame and disgrace resulting from a situation where distinction is made against a person  or group of persons, resulting in their  being treated unfairly and  unjustly on the basis  of their being HIV  infected and  /or affected, or as a result of their  belonging or being perceived to belong to a particular group that lack  social approval.	Interpretation
4.       Without  duplicating roles and establishing parallel body structure  to the Ebonyi State Ministry of Health  this law confers on the ministry the role of a regulatory in charge of implementing the  provisions of  this law.	Regulatory body
5.   Accept gifts, donation and presentations made by voluntary organizations in favour of people infected and  or affected by  HIV/AIDS . i.              Reject gifts and or donations if the conditions attached by the donor are inconsistent with the provision of this law. ii.           Assist HIV/AIDS infected/affected  persons  to claim, exercise and defend their rights in cases of infringement. iii.          Control, moderate, coordinate and supervise their  activities of  individuals, institutions  and the organization  in  both the public and  private sector within  Ebonyi State and ensure their full compliance with the provisions   of this law. devices and medication related to the prevention and management of HIV/AIDS in Ebonyi State in collaboration  with NAFDAC and the standard organization of Nigeria (SON).	Power of the  committee
6.       Create awareness on the existence and provision of this law in the state.  Educate HIV/AIDS infected person on their human right status. Monitor the operation of this law and ensure compliance. i.   Co-ordinate and supervise the activities of organizations, institution and individual in the public and private sector working on HIV/AIDS intervention strategy and action plan. Keep data, statistics and record of cases of HIV/AIDS in the state and put up report on its activities.	Function of the  committee
7.      Testing of any individual for HIV without specific expression of informed consent shall constitute a violation of the individual’s right. i.              No individual or group of persons shall be tested without prior informed and expressed consent. ii.           All individuals being tested for HIV within the state must be provided with pre and post test confidential counseling by a qualified counselor competent to provide such services, except in such cases where persons tested are part of a sentinel survey or research.  iii.          The person in question is donor of blood. iv.          The person in question is guilty of a sexual offense	Voluntary testing and informed consent
8.   Like rape whereby the individuals affected is likely to be at risk of HIV infection. Other such cases as may be authorized by a court of law for judiciary purposes .	Exceptions to informed and expressed consent
9.     The notification of sexual partner(s) of an individual who tested HIV positive shall be voluntary and confidential, by or with consent of infected person. The health care provider  responsible for	Partner notification
Screened, and certified HIV-free after confirmatory screening of at least  6 months, to rule  out the possibility of HIV being  present in its ’window period” in cases where  confirmatory screening is not possible to rule out the incidence of “Window period” such as in extreme emergencies requiring the saving of life, the health  institution etc. involved shall not be liable where screening of  blood, etc, donor declaration and consent of recipient are completed within 12 hours before donation, transplantation or insemination. ii.           All donors of blood/blood  products,  tissues, organs and semen shall be required to declare by way of questionnaire or otherwise,  that they have not engaged in behaviours that placed  them at risk  of infection. iii.          Such question shall related to actual behavior rather than membership in a particular group presumed to be vulnerable to HIV infection. Where there is evidence of negligence, willful misconduct of  false declaration on the   part of the health institution, blood bank,  care providers or donors respectively,  iv.           They shall be deemed liable and compensation shall be required according to level of damage done by such negligence, misconduct or false declaration as determined by the court.
12.   Universal infection control and precautions shall be required in all health care of individuals to blood ad other bodily fluid. Health institutions and labs shall provide appropriate training for their staff, persons as well as ensure adequate supply of such safety equipment as gloves, non–reusable needles and syringes, autoclaves and other clearing devices. i.     Health care providers who are proven to have re-used, without proper attention to standard sterilization procedures, of any instrument or product that puts a patient at risk of HIV infection .	Infection, prevention &  control

	b.       It shall be the duty of the court to determine when   lack   of consent in rape case has been proved. 2). Subject to section 4 (1) of this law the circumstance of each case shall be major consideration.
Inadmissible  evidence	5.(1) Where there is a question as to whether or not the offence of rape  has been committed that the victim of rape acted or dressed in a manner or has exposed herself to the danger by conducting herself unreasonably, it shall be considered irrelevant and inadmissible.
	2.     The court shall regard the existence of the following as irrelevant inadmissible in any rape proceeding  on the discovery a.     That  regular sex or  previous cohabitation existed between the victim and the person  charged. b). That long cohabitation existed between the two parties. c). That the person charged is not a stranger to the victim. d). That the victim is not a child. e). That the victim did not physically resist it.
Compulsory  counseling  session	6.      (1)  the victim as well as the person charged shall  undergo a  three months counseling session to be organized by  the Ministry of Women Affairs and Social Development on the weekly  supervision of a Chief  Magistrate or the Magistrate before  whom the person charged is first arraigned.   2.      This session shall commence as soon as the alleged offender is charged whether at the Magistrate or High Court. 3.      The prosecutor is empowered to apply for the issuance of this order on the first day of arraignment or the court suo motu.
Mechanism  for reporting rape cases	7.      (1)  It shall be the duty of the Commissioner for Women Affairs or anybody delegated by him or her to maintain a comprehensive register of rape cases in the State.

	2.       The crime division or department of the Nigerian Police shall from time to time, on request supply a full list of reported cases of rape to the Commissioner for Women Affairs and Social Development of those investigated and those charged to Court.
Prohibition of publicity for victims  of rape	8.      It shall be an offence  punishable with five years imprisonment or payment of one  hundred thousand naira fine for individuals and five hundred thousand Naira for corporations, who publicize or  disclose the identify of  the victim of  rape
Power to  order discontinuance	9.     (1)  where the accused person is a student and the victim also a student, on application of the victim or any legal practitioner on her behalf,  the court shall have the duty to  order the discontinuance  of  the accused from school if the victim becomes pregnant as  a result  of  the  offence of  rape and if the victim is compelled to be discontinued   from  school by reason of her pregnancy, or  ill health.
	2.   Such order as referred in sub section (1) shall stand vacated as soon as the victim gives birth or recovers.
	3.  The accused whether  or not he is working shall be responsible for the maintenance, antenatal or upkeep of the victim throughout   the victim period of the pregnancy and at  least 9 months after delivery
Duty  of the  Commissioner when pregnancy occurs	10(1)  The Ministry of Women Affairs  and  Social Development  shall  have  the duty upon  the  report the pregnancy from a rape victim: a.      To ensure the medical confirmation of such  situation b.     The medical test and confirmation that the accused is  the  person  responsible   for the pregnancy of  the  victim c.      The  reimbursement from the accused of every expense in thi  regard d.     The treatment, upkeep, maintenance, ante natal and post natal   care of the victim by the accused wherever pregnancy occurs and is confirmed.

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