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Protecting rights: litigating cases of HIV testing and confidentiality of status

Publication year: 
2012
Corporate author: 
Southern Africa Litigation Centre (SALC)
Publication details: 
Johannesburg, SALC, 2012
Abstract:

This publication focuses on litigation relating to unlawful HIV testing and unlawful disclosure of a person’s HIV status. The manual seeks to be a resource for private and public lawyers in southern Africa who are litigating cases in domestic courts that challenge laws, policies and practices around unlawful HIV testing and breaches of confidentiality. It may also be useful to civil society organisations seeking to use litigation as part of an advocacy strategy to promote and protect the rights of people living with and affected by HIV. It aims to provide concrete legal arguments for use in litigation before domestic courts. Domestic lawyers will be familiar with the laws of their respective jurisdiction. However, they may fail to use international, regional and comparative jurisprudence to support and bolster their arguments before domestic courts. This is often due to the lack of awareness of international, regional and comparative law and a misconception that they are not useful in domestic litigation. This manual attempts to address these issues in the hopes that more private and public lawyers will utilise international, regional and comparative
law in domestic litigation. The manual starts by outlining arguments a lawyer can make for why domestic courts should look to international, regional and comparative law in its deliberations. It then discusses the international and regional law relevant to litigating cases of unlawful HIV testing and unlawful disclosures of a person’s HIV status. The international and regional law sections are organised according to specific rights. This is to provide lawyers easy access to needed information as they are drafting arguments based on particular rights. The manual also discusses comparative jurisprudence from countries where courts have addressed cases of unlawful HIV testing and breaches of confidentiality. Finally, it outlines legal and factual responses to justifications that have routinely been offered in cases of unlawful HIV testing and breaches of confidentiality. The manual does not discuss in detail domestic constitutional or legislative frameworks. Most of the sections start with a list of important documents and cases discussed in each respective chapter. In addition, two of the sections start with a checklist aimed at guiding lawyers in constructing arguments to support their cases before domestic courts. In addition, each section is extensively referenced. The aim is to provide lawyers with the relevant authoritative sources to strengthen legal arguments before domestic courts. Finally, the manual includes a list of useful online resources for lawyers.