the policy and legal framework on hiv may 2011

The Policy and Legal Framework on HIV/AIDS in Ethiopia, May 2011

The Policy and Legal Framework on HIV/AIDS in Ethiopia

This brief paper provides an overview and description of the major policy documents on HIV/AIDS and legislation relevant to the national response to the pandemic in Ethiopia.

1 Policy Framework on HIV/AIDSEthiopia’s national response to the HIV/AIDS pandemic is guided by the national policy on HIV/AIDS issued in August 1998. This policy was elaborated through a five year (2000-2004) national strategic framework which was replaced by a strategic plan for the succeeding four years (2005-2008) itself supplemented by the Multisectoral Plan of Action for Universal Access to HIV Prevention, Treatment, Care and Support in Ethiopia 2007–2010. Currently, the Ethiopian Strategic Plan for Intensifying Multi-Sectoral HIV Response (SPM II)1 covering the period 2010-2014 is being finalized.2 In addition, a number of other policy documents specific to HIV/AIDs issues have been developed in the form of strategies and guidelines. These include: the National Monitoring and Evaluation Framework for the Multi-Sectoral Response to HIV/AIDS in Ethiopia (HAPCO, December 2003);3 the National Guidelines for HIV Counseling in Ethiopia (2007);4 the National Health Communication Strategy for 2005-2014 (October 2004);5 the Guideline for an effective Community Mobilization Strategy (HAPCO, May 2005); the Guidelines for Implementation of Antiretroviral Therapy (2005);6 the Guidelines for Prevention of Mother-to-Child Transmission of HIV (2007);7 the National Anti-Retroviral Therapy (ART) Strategic Communication Framework (March 2005); and, the Guidelines for Use of Antiretroviral Drugs (2005)8. Among these guidelines and strategies, those relating to HIV counseling and testing are the ones with direct relevance to the

1 Federal HAPCO, the Ethiopian Strategic Plan for Intensifying Multi-Sectoral HIV Response (SPM II), Final Draft, September 2009

2 While this last document is expected to constitute the core strategic document guiding the national HIV/AIDS response in line with the Policy, it has yet to be translated into guidelines and other policy documents and has an overlapping temporal and thematic coverage with the Plan of Action for Universal Access. It is thus more appropriate to include SPM I and the Plan of Action for Universal Access in this section along with SPM II despite the fact that both of the other documents have already completed their period of implementation.

3 Ministry of Health, National Monitoring and Evaluation Framework for Multi-Sectoral Response to HIV/AIDS in Ethiopia, National HIV/AIDS Prevention and Control Office (HAPCO), 2003

4 Federal HIV/AIDS Prevention and Control Office and Federal Ministry of Health, Guidelines for HIV Counseling and Testing in Ethiopia, July 2007

5 National Health Communication Strategy: Ethiopia 2005-2014, Ministry of Health-Health Education Center, October 2004. page 18.

6 Ministry of Health, Guidelines for Implementation of Antiretroviral Therapy in Ethiopia, Addis Ababa: Ministry of Health, 2005

7 Federal HIV/AIDS Prevention and Control Office and Federal Ministry of Health, Guidelines for Prevention of Mother-to-Child Transmission of HIV in Ethiopia, July 2007

8 Ministry of Health, Guidelines for Use of Antiretroviral Drugs in Ethiopia, Addis Ababa, 2005

Ghetnet Metiku WoldegiorgisSocio-Legal ResearcherE-mail: [email protected]

mailto:[email protected]


subject matter hand.9 Other sector specific policy documents on education, health and other issues also incorporate components relevant to the national HIV/AIDS response in the context of the specific social sectors and vulnerable groups.10

1.1 The National HIV/AIDS Policy

The National HIV/AIDS Policy (1998) recognizes that HIV/AIDS is not only a health problem but also a development problem in Ethiopia. The overall goal of the policy is to provide an enabling environment for the prevention and control of HIV/AIDS in the country. More specifically the policy aims to:

establish effective HIV/AIDS prevention and mitigation strategies to curb the spread of the epidemic;

promote a broad, multisectoral response to HIV/AIDS, including more effective coordination and resource mobilization by government, NGOs, the private sector, and communities;

encourage government sectors, NGOs, the private sector, and communities to take measures to alleviate the social and economic impact of HIV/AIDS;

support a proper institutional, home-based, and community-based health care and psychological environment for PWHA, orphans, and surviving dependents;

safeguard the human rights of PWHA and avoid discrimination against them;

empower women, youth, and other vulnerable groups to take action to protect themselves against HIV; and

promote and encourage research activities targeted toward preventive, curative, and rehabilitative aspects of HIV/AIDS.

The priority prevention and control measures called for in the policy include: encourage people to maintain faithful sexual relationships with one partner; promote the use of condoms in situations where there may be the risk of HIV transmission; minimize other unsafe practices such as illegal injections, harmful traditional procedures, and drug addiction; ensure safe medical practices to protect against HIV transmission; and, ensure the human rights of people with AIDS. The National HIV/AIDS policy makes explicit but general reference to the link between human rights and HIV/AIDS. In referring to the implementation of the priority prevention and control measures, the policy states that PLWHA should be involved in all these efforts through education, counseling, and peer groups to “help themselves live with HIV/AIDS and to communicate to the community the dangers

9 As such, only these documents are treated in any detail, along with two specific guidelines designed to address issues of HIV/AIDS at the workplace.

10 These sector policy documents have been treated briefly at the end of the section to the extent that they address issues of direct relevance.




of risky behaviors”. Moreover, the Policy prohibits restrictions on PLWHA in relation to “employment, education, access to public facilities, or housing”.

The 1998 Policy on HIV/AIDS deals with issues related to HIV testing. The principle as laid down under the Policy is that “testing and counseling shall be voluntary and shall be encouraged along with counseling services”11. However, the Policy recognizes two exceptions to this principle in the case of HIV screening for job recruitment purpose where justified by the nature of the occupation (pilots - civil aviation and air force);12 and, testing of blood donors.13 The policy also affirms confidentiality of testing results14 with the proviso that PLWHA shall be encouraged to notify others such as the spouse, friends and family through repeated counseling.15 Moreover, the Policy recognizes the rights of an ‘endangered partner’ to access information on the sero-status of the partner in cases of altered state of consciousness or of difficult cases where a person refuses to notify after adequate counseling and his/her partner is at risk of infection.16

1.2 The Strategic Plan for Intensifying Multi-Sectoral HIV/AIDS Response (2004-2008)

Following the adoption the National HIV/AIDS Policy, the HIV and AIDS Prevention and Control Office (FHAPCO) has developed two rounds of five year strategic plans, namely the Strategic Framework for the National Response to HIV/AIDS in Ethiopia (2001-2005) launched in 2001 and the Ethiopian Strategic Plan for Intensifying Multi-sectoral HIV/AIDS Response (2004-2008) issued in 2004. The latter, also called the first Strategic Plan and Management document (SPM I), reaffirms the recognition of HIV/AIDS as a development problem under the National Policy and aims to: “prevent and control the spread of HIV/AIDS and reduce its impact through intensified, result-oriented large-scale comprehensive programs with active participation of all partners and with special focus on social mobilization and community empowerment”. The shorter term goals of the Strategy focus on reducing the spread of HIV infection, and minimizing the social and economic impact of HIV/AIDS in Ethiopia.

The SPM has identified six thematic areas as “Strategic Issues”: capacity building; community mobilization and empowerment; integration with health programs; leadership and mainstreaming; coordination and networking; and, focus on special target groups. The ‘special target groups’ are identified in two groups: commercial Sex Workers, truckers, migrant laborers, uniformed people, teachers, students and out of school youth; and, people living with HIV/AIDS, orphans and other vulnerable children. For the first group the objective is to “reduce vulnerability to HIV infection among the identified targeted group” through strategies including VCT and

11 Policy on HIV/AIDS, Paragraph 3/212 Policy on HIV/AIDS, Paragraph 3/313 Policy on HIV/AIDS, Paragraphs 3/5 and 3/614 Policy on HIV/AIDS, Paragraph 8/115 Policy on HIV/AIDS, Paragraph 5/516 Policy on HIV/AIDS, Paragraph 5/6




behavioral change interventions, condom use, RH and STI services, life-skills development, IGA and employment opportunities, school-based interventions, and peer education.17 In relation to PLWHA, orphans and other vulnerable children identified as one of the two categories of special target groups, the specific objective of the Strategy is to: “Improve quality of life of people living with HIV/AIDS, orphans and other vulnerable children (OVC)”. The PLWHA and OVC objective is to be achieved through strategies including family and community based care, legal protection, access to social services, vocational training and IGA opportunities, social security, and stakeholder mobilization.18 The framework matrix included in the plan has also identified the major activities, indicators, means of verification and responsible body for each of the selected strategies. Finally, the budget breakdown by intervention area and activity provided at the end of the Strategic Plan indicates specific allocations for ‘special target groups’.

The Strategic Framework for the National Response to HIV/AIDS in Ethiopia 2000-2004 replicates provisions of the 1998 Policy on HIV/AIDS with respect to HIV testing. That is, it maintains the national HIV policy provisions on issues of consent, testing, and confidentiality of information.

1.3 The Universal Access Plan of Action

Ethiopia is signatory to several international declarations and initiatives, and it is also beneficiary to the various forms of international assistance and donations. Among others, the major international initiatives and declarations that have facilitated and enhanced the national response to AIDS include: the UN Millennium Declaration, the Abuja Declaration, the Paris Declaration, the UN Declaration of Commitment on HIV/AIDS, the Brazzaville Commitment, the “Three Ones” principles, and the Global Task Team on Improving AIDS Coordination Among Multilateral Institutions and International Donors (GTT). On 2 June 2006, Ethiopia joined other UN Member States at the UN General Assembly to approve resolution 60/262, also known as the Political Declaration on HIV/AIDS. The declaration includes a commitment by UN Member States to move towards the goal of universal access to HIV prevention, treatment, and care and support services by 2010. It also

17 The actual strategies listed for these groups in the Policy are: promote VCT and other behavioral change interventions; promote the use of male and female condoms; provide user-friendly Reproductive Health and STI services; enhance bargaining and negotiations skills for safe sex where applicable; provide safe and alternative income generating and employment opportunities where applicable; strengthen and expand school anti AIDS clubs and mini Medias; integrate HIV/AIDS in life skill education and basic curriculum; develop youth centers and entertainment resorts; and, organize the youth on voluntary basis and provide peer education.

18 The actual strategies listed for these groups in the Policy are: promote care within the family and mobilize the community to address and accommodate the issue of PLWHA/OVC through traditional and extended family mechanisms; provide counseling service, legal advice and protection to PLWHA/OVC; provide access to basic health, education and other social services to PLWHA/OVC; provide vocational skill training and income generating opportunity for PLWHA/OVC; develop acceptable social security models towards the special needs of PLWHA/OVC; and, mobilize all stakeholders to address the needs of PLWHA/OVC in a sustainable manner.




calls on each country to set ambitious national targets to be achieved by the year 2010, and to work with partners at country level to overcome the barriers that block access to prevention, care and treatment.

In response to this commitment, federal HAPCO led the development of the Multisectoral Plan of Action for Universal Access to HIV Prevention, Treatment, Care and Support in Ethiopia 2007–2010. The Universal Access Plan of Action is costed and consists of specific targets and detailed activities categorized within 16 major program areas. Its development has been guided by the SPM, Ethiopia’s universal access commitment and the “Three Ones” principles. The Plan of Action mainly bases itself to related national plans and processes, in particular: the Health Sector Road Map for Accelerated Access to HIV Prevention, Care and Treatment in Ethiopia; the National Universal Access process that set national targets for non-health sectors for 2007-2010; and the National Social Mobilization Strategy which is designed to intensify mobilization of all parts of the society with special attention to the community towards broad-based participatory action. It also takes into account the sectoral directions of the HSDP, the ESDP and the Health Sector Facility Expansion Plan. Moreover, resource requirements for the Plan of Action were projected for the period 2007-2012, currently available/committed resources to the national AIDS response were mapped, and a financial gap analysis has been conducted. The Plan of Action, therefore, is the one agreed national AIDS action framework of the “Three Ones” principles.

Ethiopia’s universal access targets under this framework are:19 condom use by sexually active population (age 15-49) will increase from 10% in 2007 to 60% by 2010; people treated for STIs will be 94% of those who seeks the service by 2010; 9.27 million People to be counseled and tested in 2010; 80% of HIV Positive Pregnant women will receive PMTCT service by 2010; People receiving ART will increase from 32% in 2007 to 100% by 2010; 1.68 million OVC receiving care and support by 2010; 50% of people living with HIV (PLHIV) to receive care and support services by 2010; all Kebeles conduct community conversation sessions by 2009; all schools will have HIV/AIDS information centers; and, 100% access to primary health care services by 2008.

1.4 The Ethiopian Strategic Plan for Intensifying Multi-Sectoral HIV Response (2009-2014)

The most recent Strategic Plan and Management document designed to guide the national HIV/AIDS response in the coming few years is the Ethiopian Strategic Plan for Intensifying Multi-Sectoral HIV Response (SPM II) covering the period 2009-2014. In its development, SPM II is guided by the National HIV/AIDS Policy; the SPM I (2004-2008), the Plan for Accelerated and Sustained Development to End Poverty, PASDEP 2007-2010; and other key policy and strategy documents for the HIV response such as the road map for accelerated access to HIV prevention, treatment and care in Ethiopia 2007-2010, and the Plan of action for universal access to HIV prevention, treatment, care and support in Ethiopia 2007-2010. The implementation

19 FHAPCO, Multisectoral Plan of Action for Universal Access to HIV Prevention, Treatment, Care and Support in Ethiopia (2007–2010), December 2007, pp. 11-12




of the SPM is also expected to involve the development of successive operational annual plans.20

This SPM, in its current form,21 has nine major sections with substantive sections covering: an overview of the situation of HIV/AIDS in Ethiopia and the national response; the mission, vision, goal and guiding principles of the national response, the major strategic issues, and the main thematic areas along with their corresponding objectives and strategies; the strategic plan matrix outlining selected strategy, major activities, indicators, means of verification and responsible body for the activities of the given thematic areas; the budgetary requirements and justification, governance and institutional arrangements, and monitoring and evaluation; and, the major challenges and the ways forward. The SPM is subsequently concluded with the annexes which include the minimum service delivery package by institutional level, role of key implementing agencies, list of policy document and acronyms.

With a vision of seeing Ethiopia free of HIV/AIDS, the SPM II sets the following mission for the national response to HIV/AIDS in Ethiopia:22

“To prevent and control HIV/AIDS epidemic and mitigate its impacts by creating universal access to HIV prevention, treatment, care and support services through intensified community mobilization and empowerment, by building capacity and ensuring the active involvement and ownership across the sectors, enhancing partnership under the principle of the “three ones”, and mobilizing and ensuring appropriate use of resources by instituting result based financing and evidence based informed planning and response”.

This mission statement is then translated into the goal of reducing new HIV infections, AIDS related morbidity and mortality and mitigating its impacts in the country. To this end, the SPM II seeks to create comprehensive knowledge and behavioral change among the masses, reduce vulnerability to and risks of HIV infection, create universal access and increased utilization of HIV/AIDS services, and mitigate the impact of the pandemic.

Based on analysis of the epidemic and the national response to date, the SPM II has identified two major strategic areas, namely creating enabling environment for the response, and priority programmatic thematic areas. The strategic issues included in the enabling thematic area are capacity building, community mobilization & empowerment, leadership and governance, mainstreaming, coordination, and partnership & networking. Whereas strategic issues in the programmatic thematic

20 Federal HAPCO, the Ethiopian Strategic Plan for Intensifying Multi-Sectoral HIV Response (SPM II), Final Draft, September 2009, p. 71

21 Though designed in 2009, the SPM II document has to be harmonized with sector policies as well as the overarching development policy of the country, i.e, the Growth and Transformation Plan, finalized only recently. Thus, while it is considered final in the sector-specific sense, the document is still in its final stages of adoption within the overall policy framework.

22 SPM II, p. 25




areas include: intensifying HIV prevention, increasing access and quality of chronic care and treatment, strengthen care and support, and enhance generation & use of strategic information.

One of the key strategies adopted under SPM II in intensifying HIV prevention programs and services targets development schemes and new business opportunity locations including public and private sectors.23 This involves an initial response capacity assessment aimed at revitalizing and scaling up mainstreaming, including through the development of workplace intervention guidelines as well as integration of HIV prevention at the sector, institutional, program and project levels. More specific focus is also given to newly created development opportunities and commercial activities such as road construction sites, flower farms, mining, dam construction points. The stated target for this strategy is to access 150 new business opportunity locations, key sectors, industries and private sector institutions.24

Recognizing the need to intensify ‘structural interventions’ to address societal factors underlying the spread of the pandemic in the country, the SPM II gives particular attention to poverty, socio-cultural norms, beliefs and practices, gender inequality, and stigma and discrimination. In relation to reducing vulnerability of ‘risk groups’ to HIV infection, one of the selected strategies is to “promote interventions against stigma and discrimination and protection of human rights”.25 The specific interventions and targets planned for the SPM II period include conducting two stigma index studies and six national campaigns on stigma and discrimination

The SPM II maintains the approach adopted by the SPM I in reference to HIV counseling and testing. That is, it maintains the national HIV policy provisions on issues of consent, testing, and confidentiality of information. New or updated strategies have, however, been stated with a view to ‘increasing the availability and accessibility of basic facility based HIV services, and utilization of preventive services’26.

1.5 The Guidelines for HIV Counseling and Testing in Ethiopia (2007)

The first VCT guidelines in Ethiopia were developed in 1996 followed by another guideline in 2002. The current HCT guidelines issued in 2007 represent the third and latest version was prepared in response to the needs accompanying the current scale up of counseling and testing services and to incorporate current scientific knowledge.27 The specific objectives of the guidelines are to:

23 SPM II, p. 3724 SPM II, Results Matrix for SPM II (2009/10 – 2014), p. 5625 SPM II, Results Matrix for SPM II (2009/10 – 2014), p. 5826 SPM II, pp. 38-3927 Federal HIV/AIDS Prevention and Control Council /Federal Ministry of Health,

Guidelines for HIV Counselling and Testing in Ethiopia, 2007




improve and maintain HIV/AIDS counseling and testing services at an optimum standard through development and implementation of a comprehensive strategy;

provide guidance for the scaled up, as well as general provision, management and evaluation of, HIV/AIDS counseling and testing at all service levels;

provide a framework for regulatory control of counseling and testing services; and,

promote integration of counseling and testing into all prevention, care and support programs for HIV/AIDS clients and patients with other life-threatening conditions.

The guidelines recognize three types of HIV testing, namely voluntary counseling and testing, provider initiated testing and counseling, and mandatory screening. Mandatory testing is conducted on two conditions: on all voluntary blood, tissue and organ donors, who shall be informed about HIV testing and given opportunity to learn their test results; and, in special cases as per a court order. In all other cases, mandatory testing is recognized as a violation of human rights. Under the guidelines provider-initiated testing and counseling (PITC) is to be promoted as part of standard clinical management and care in all health facilities but has to be conducted based on informed consent. However, consent is not required for mandatory testing which should still be supported by appropriate counseling.

As per the Guidelines, informed consent for testing shall be obtained in all cases, except in mandatory testing.28 Counsellors are thus required to make sure that clients adequately understand benefits, implications and consequences of testing; and recognize the right of clients to withdraw consent at any time, even after blood has been taken for HIV testing.29 The Guidelines also provide for the capacity to give consent30 considering individuals aged 15 years and above to be mature enough to give informed consent. HIV testing for children under 15 is permitted only with the knowledge and consent of parents or guardians, and the testing must be done for the benefit of the child.31 As an exception, children aged 13-15, who are married, pregnant, commercial sex workers, street children, heads of families, or sexually active are considered ‘mature minors’ capable of consenting to HIV testing. Similarly, HIV counselling and testing of a mentally impaired individual requires the knowledge and consent of his/her guardian, and should be for the benefit of the individual or patient.32 As it is the case with consent, the Guidelines state that ’adequate pre- and post-test counseling shall be offered to all clients’.33

28 Guidelines for HIV Counselling and Testing, paragraph 1/129 Guidelines for HIV Counselling and Testing, paragraph 3/2/230 Guidelines for HIV Counselling and Testing, paragraph 1/431 Guidelines for HIV Counselling and Testing, paragraph 1/4/132 Guidelines for HIV Counselling and Testing, paragraph 1/533 Guidelines for HIV Counselling and Testing, paragraphs 1/1 and 3/2




The Guidelines allow two exceptions for confidentiality of testing results. Firstly, in cases where testing is ordered by a court of law, results should be communicated directly to the appropriate authority.34 Secondly, partner notification shall be encouraged in cases where one partner receives the results alone. When a client fails to disclose positive status to his/her partner for any reason, however, the endangered partner has the right to know the positive partner's HIV status.35

1.6 Workplace HIV/AIDS Prevention and Control Guidelines

Two sets of guidelines specific to HIV/AIDS in the workplace have been developed by the relevant authorities in Ethiopia. With a purpose to ensure a PLWHA friendly working environment in government employment settings, the Ethiopian Civil Service Agency has issued the Government Organizations Workplace HIV/AIDS Prevention and Control Guidelines in 2005.36 The Civil Service Workplace HIV/AIDS Guideline of the country also protects people living with HIV from discrimination by employers. In 2009, the Confederation of Ethiopian Trade Unions (CETU), the Ministry of Agriculture and Rural Development, the Ministry of Education, and the Ministry of Transport and Communications have developed workplace AIDS policies.37 Similarly, the Ministry of Labor and Social Affairs (MoLSA) had issued guidelines for the prevention and control of HIV/AIDS at the workplace applicable to private employment settings in 2004.38 However, the authority of both guidelines is subject to challenge since neither has been published in the official legal gazette as required for all legislative instruments.39 Moreover, the limited accessibility of copies of the guidelines suggests limited, if any, utilization in practice.40

1.7 Other Sector Policy Documents

The Education Sector Development Programme, which aims to ensure universal access to education with focus on OVC, outlines the main elements of the education sector strategy response to HIV and AIDS as:41 integrating HIV and AIDS in the curricula of all levels of education, developing guidelines; development of workplace

34 Guidelines for HIV Counselling and Testing, paragraph 3/2/735 Guidelines for HIV Counselling and Testing, paragraph 3/2/836 FDRE Civil Service Agency, Government Organizations Workplace HIV/AIDS

Prevention & Control Guidelines, 200537 Federal HIV/AIDS Prevention and Control Office, Report on progress towards

implementation of the UN Declaration of Commitment on HIV/AIDS (2010), Federal Democratic Republic of Ethiopia, March 2010, pp. 28 and 91

38 FDRE Ministry of Labour and Social Affairs, Organizations Workplace HIV/AIDS Prevention & Control Guidelines, 2004

39 Article 2/3, A Proclamation to Provide for the Establishment of the Federal Negarit Gazeta”, Federal Negarit Gazette of the Federal Democratic Republic of Ethiopia, 22 August, 1995, Year 1 No. 3, Addis Ababa

40 The Civil Service Agency and MoLSA guidelines are available in the Ethiopian HIV/AIDS Resource Center Library, though not downloadable from the Center’s website.

41 Ministry of Education, Education Sector Development Program (ESDP III), 2005/2006 – 2010/2011, Program Action Plan, August 2005




policy and mainstreaming, and addressing stigma and discrimination in the sector. It then defines activities and strategies that would further enrich the sector strategy in the long run including non-formal education programs for out-of-school children of 7-14 years of age, and a Special Needs Education Strategy targeting children with disabilities.42 Similarly, the Ministry of Health has developed a National Adolescent and Youth Reproductive Health Strategy (2007-2015) in 2007. The strategy outlines the major youth reproductive health issues in Ethiopia and charts a way forward. Moreover, a National Youth Policy has been developed by the Ministry of Youth, Sports and Culture in 2003/04. This policy has sections that prescribe measures in relation to youth and health, youth and HIV/AIDS and youth and drugs and other harmful substances. Finally, the National Plan of Action for Children for the period 2003 to 2010 and beyond, which was developed by MoLSA in 2004,43 identifies the provision of quality education and combating HIV/AIDS among its focal issues.

2 Legal Framework on HIV/AIDS

Ethiopia is a signatory to the Universal Declaration of Human Rights (UDHR) and has ratified the bulk of general human rights and child rights instruments including the Convention on the Rights of Child, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). In line with commitments under these and other agreements, Ethiopia has taken some major steps to harmonize its domestic laws with the provisions of international human rights instruments starting with the adoption of the FDRE Constitution (1995). The Constitution contains provisions for the domestication of international human rights agreements and incorporates specific children’s rights provisions. These provisions of the Constitution have also been translated into subsidiary laws through an extensive legislative reform program in place since 1995. Among the major laws issued or revised under the legislative reform program, the ones with direct relevance to children’s rights include: the Revised Family Code (2000), the Criminal Code (2005), and the Labor Proclamation (Proclamation No. 377/2003). The Ethiopian Government has continued to reaffirm its commitment to harmonize domestic laws with constitutional and international human rights standards through ongoing review processes including the drafting of a law on HIV/AIDS.44

42 Though the status of these documents is not clear, a draft education sector policy on responding to HIV/AIDS in Ethiopia, and a draft strategy for the implementation of that policy were also being finalized in early 2008. The government also has a strategy promoting HIV-related reproductive and sexual health education for young people.

43 MoLSA, National Plan of Action for Children (2003–2010), June 200444 The draft law on HIV/AIDS, which has already been prepared by the Ministry of

Justice, is expected to address the human rights implications of HIV/AIDS. The Ministry is expected to submit the draft to the Council of Ministers for consideration. Other initiatives with possible relevance to the national response to HIV/AIDS include: the development of a Criminal Justice Administration Policy and review of the Criminal Procedure Code initiated upon the adoption of the revised Criminal Code in 2005; and, support to the drafting and adoption of Regional Family Laws using the Revised Family Code (2000) as a frame of reference.




2.1 The FDRE Constitution

The FDRE Constitution enumerates fundamental rights and freedoms and recognizes the basic rights and freedoms outlined in the major international human rights instruments. It recognizes a broad range of basic rights and freedoms, which are relevant to HIVAIDS concerns, including nondiscrimination and equality before the law, access to social services including health and education, participation, employment, the right to marry and found a family, the right to privacy, honor and reputation, and the rights of women and children. More relevant to PLWHA, the Constitution proscribes any distinction based on race, nationality, color, gender, language, religion, politics, social background, wealth, birth status, or any other condition.45 The phrase “any other condition” has been interpreted to prohibit discrimination on the basis of HIV status. Similarly, the Constitution guarantees the right to privacy including confidentiality of medical information, as well as the right to equal employment opportunities, and the right to a healthy working environment.46 The right to marriage and a family and the right to choose one’s domicile are also important in the context of PLWHA.47

2.2 The Revised Family Code

The Revised Family Code of July 2000,48 which replaces the provisions of the Civil Code of 1960 relating to marriage and the family, contains provisions that are more consistent with the provisions of the Constitution in relation to minimum marriageable age, freedom of marriage, and equal rights of the spouses before, during and after marriage. These provisions of the Code address many of the structural and root causes for the spread of HIV/AIDS and vulnerability of some social sections to infection, namely women and girls. The most significant contribution of the revised Family Code is the setting of minimum marriageable age for girls at 18. This review of marriageable age for girls, besides being important by itself, has contributed to the extension of full protection from sexual outrage under the penal code to the same age level. Another important feature of the Revised Family Law is the prohibition of marriage by abduction, early marriage and bigamy, practices associated with the spread of HIV/AIDS in Ethiopia. The FDRE Revised Family Code vividly confirms that AIDS is a ground of divorce.49

2.3 The Criminal Code

The Penal Code is another important legislation that has been revised to harmonize domestic laws with international human rights standards with important implications for the response to HIV/AIDS. The new Criminal Code, which came into

45 Article 25, FDRE Constitution (also see: Article 18 of the FDRE Constitution)46 Articles 26, 41/1 and 42/2, FDRE Constitution47 Articles 34 and 32/1, FDRE Constitution48 “The Revised Federal Family Code of Ethiopia”, Federal Negarit Gazette of the

Federal Democratic Republic of Ethiopia (July 4, 2000) Sixth Year Extra Ordinary Issue No. 1, Addis Ababa

49 Article 13(b), The Revised Family Code




force in May 2005 replacing the 1957 Penal Code, includes new and revised provisions relevant to the national response to the HIV/AIDS pandemic. The most direct of these provisions expressly criminalizes the act of spreading or transmitting a communicable human disease.50 This provision provides for punishment up to and including the death penalty for the intentional spread of an epidemic that can cause grave injury or death. The Public Health Proclamation similarly imposes a duty on persons suspected of infection with communicable diseases to submit to testing51 while everybody else is duty bound to report suspicions or knowledge on the occurrence of a communicable disease to the authorities. In addition, the provision of the 1961 Criminal Procedure Code pertaining to medical examination of accused sexual offenders has been interpreted as allowing compulsory HIV testing. The provision in question reads:52

“where an investigating police officer considers it necessary, having regard to the offence with which the accused is charged, that a physical examination of the accused should be made, he may require a registered medical practitioner to make such examination and require him to record in writing the results of such examination. Examination under this Article shall include the taking of a blood test”.

The justification for such interpretation is based on the claim that the result of the HIV test is essential in determining the applicable Criminal Code provision. That is, the HIV status of the suspect determines whether the charges fall under the provisions relating to rape or transmitting a communicable human disease.

On the other hand, various forms of violence against women and children, which are closely linked to vulnerability to HIV/AIDS, are extensively addressed within the new Criminal Code. The Code criminalizes forms of violence against children including sexual offences such as rape,53 trafficking in children,54 prostitution of another for gain55 and physical violence within marriage or in an irregular union56. The prohibitions also extend to HTPs in general with specific provisions on abduction,57 female genital mutilation,58 early marriage,59 bigamy60 and endangering the lives of or causing bodily injury to children61. In addition to criminalizing new forms of violence against women and children, the Criminal Code has also redefined the elements of some existing offences, added aggravating circumstances and revised

50 Article 514, Criminal Code51 Articles 2/8 and 17/2, Proclamation No. 200/200052 Article 34, Criminal Procedure Code53 Articles 620-628, Criminal Code54 Articles 597 and 635, Criminal Code55 Article 634, Criminal Code56 Article 564, Criminal Code57 Article 587-590, Criminal Code58 Articles 565 and 566, Criminal Code59 Article 649, Criminal Code60 Article 650, Criminal Code61 Articles 561-563, Criminal Code




the penalties applicable in cases of violation. New provisions on concurrence of offences and the liability of institutions have also been included.

2.4 Employment Laws

The law governing employment is another area of Ethiopian law that explicitly responded to HIV/AIDS concerns. The currently applicable laws governing employment in the civil service and private employment, i.e., the Federal Civil Servants Proclamation62 and Labour Proclamation63, prohibit compulsory HIV testing for the purpose of employment. The first states that:64 “there shall be no discrimination among job seekers or civil servants in filling up vacancies because of their ethnic origin, sex, religion, political outlook , disability, HIV/AIDS or any other ground”. While providing for production of medical certificate as a pre-condition for candidates who qualify for a job, the Civil Servants’ Proclamation unequivocally states that the medical certificate does not have to include HIV test result.65 It also prohibits HIV testing of civil service employees stating: “any civil servant shall have the obligation to take medical examination, with the exception for HIV/AIDS, when required by the government institution on sufficient ground related to the service”.66 Similarly, the Labor Proclamation states that:67 “it shall be unlawful for the worker to, except for HIV/AIDS test, refuse to submit himself for medical examination when required by law or by the employer for good cause”. This prohibition is intended to address potential discrimination of PLWHA in getting employment opportunities. Other relevant areas to HIV/AIDS concerns covered by the employment laws include non-discrimination, respect for the worker’s human dignity, termination of a contract of employment for reasons of health, health and safety of workers and sick leave.

Though more limited in scope, the private employment agency proclamation68 also has direct contributions to the national response to violence against women and girls. The proclamation, which regulates the activities of private employment agencies for local as well as foreign employment, puts in place a mandatory licensing arrangement enforced with serious penalties. Through this licensing arrangement as well as provisions for monitoring and supervision, the proclamation seeks to protect employees who are mostly woman or girl victims of trafficking and other forms of violence against women.

2.5 The Civil Code

Though the Civil Code has been in existence long before the emergence of HIV/AIDS, some of its provisions are relevant to HIV/AIDS issues. The provisions of the Criminal Code provide for civil redress in the form of compensation where a

62 Proclamation No. 515/200763 Proclamation No. 377/200364 Article 13/1, Federal Civil Servants Proclamation No. 515/200765 Article 17, Federal Civil Servants Proclamation No. 515/200766 Article 63/1, Federal Civil Servants Proclamation No.515/200767 Article 14/2/d, Labor Proclamation No 377/200368 Proclamation number 104/1998




crime has caused considerable damage to the injured person including death or injuries to the body or health. In such cases, the victim may claim compensation from the offender. The provisions of the Civil Code relating to Extra Contractual Liability govern the calculation and payment of this compensation. The Civil Code provides that69 “a person commits a fault where he infringes any specific and explicit provision of a law, ordinance or administrative regulation’. And since the basic principle of extra-contractual liability is that70 “whosoever, by his fault, causes damage to another, shall make it good”, the perpetrator of any act prohibited by law will be liable for the financial losses resulting from his or her actions.

69 Article 2035/1, Civil Code of Ethiopia70 Article 2028, Civil Code of Ethiopia

