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Legal environment assessments for health, HIV, TB and malaria

Legal Environment Assessments, or Legal Audits, are another tool for identifying legal, regulatory and human rights barriers and how they affect health, including for vulnerable and key populations at country level; they can also provide a gateway to advocacy and action for enabling law, rights and policy environments.

UNDP supports countries to undertake participatory, country-led LEAs to identify and document a country’s laws, regulations and policies relating to HIV, TB and malaria and related health issues, affecting vulnerable and key populations. These LEAs also examine access to justice and law enforcement issues, to determine how laws, regulations and policies are enforced and whether populations, including vulnerable and key populations, are able to access remedies for rights violations.

In this way, LEAs provide information on how the law, rights and policy framework protects and promotes effective and inclusive governance for health and / or how it creates barriers to access to health services.

LEAs are generally initiated by key government ministries, led and overseen by a multi-stakeholder committee that includes civil society and supported by development partners such as UNDP. Currently, most LEAs have focused on HIV and AIDS, and more recently also TB, but they can be used to examine laws, policies and human rights issues affecting populations in the context of a range of health issues, including sexual and reproductive health and rights. The LEAs focus on key legal, human rights as well as gender-related issues identified by country stakeholders.

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For instance, HIV-related LEAs have considered:

  • stigma and discrimination against populations living with or affected by HIV, TB and sexual and reproductive health risks
  • criminalization of HIV transmission, exposure and non-disclosure
  • women, girls and HIV
  • the rights of children and young people
  • criminal laws that impact on vulnerable and key populations
  • access to treatment

LEAs collect information in various ways. They examine a country’s laws, policies and regulations that affect diseases such as HIV and TB. This requires looking not only at health laws, but also laws that affect vulnerable and key populations and that protect and promote or alternatively harm health and well-being. LEAs also involve discussions with key stakeholders from all sectors of government, civil society and development partners.

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They often include focus group discussions with vulnerable and key populations, to discuss human rights and gender equality issues that affect them. LEAs involve consultations and feedback mechanisms to understand, discuss and analyse the findings. Finally, they include multi-stakeholder processes to validate recommendations and to plan for rights-based effective responses to strengthen legal frameworks.

The process can contribute to increasing awareness and understanding of human rights and health. When carried out in a consultative, participatory and transparent manner, LEAs build consensus among national stakeholders on actions needed to strengthen law, rights and policy environments and to initiate dialogue amongst various stakeholders on sensitive issues.

In some countries, an LEA may already have been completed, may be ongoing or may have been identified as an important activity—e.g. in the national strategic plan or a Global Fund proposal. In this case, the outcome of the LEA can help to direct actions to review and reform laws, protect and promote human rights and gender equality and address the needs of vulnerable and key populations. Where an LEA has not been undertaken, it may be useful to include it as an activity in a national plan, programme and/or funding request.

Case Study Global Fund Baseline Assessments of Human Rights Related Barriers
Starting in 2017, the Global Fund has provided funding for twenty selected countries to undertake baseline assessments of human rights-related barriers to HIV, TB and malaria services, existing programmes to address the barriers, how the barriers could be comprehensively addressed, and the associated cost. The baseline assessments will include an analysis of why small-scale programmes have remained that way.
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Informed by these baseline assessments, country stakeholders, with the support of Global Fund staff, will develop five-year national plans to scale up programmes to reduce human rights barriers (including removing policy and legal impediments).

The LEA and baseline assessment together can complement efforts to identify legal, policy, human rights and gender-related barriers to HIV, TB and malaria services, and recommended responses to create enabling law, rights and policy environments that address human rights challenges for health.

Case Study Building solidarity for sustained action during the DRC LEA
In the Democratic Republic of Congo (DRC), law and human rights issues were integrated into the national response to HIV. An HIV law was passed in 2008, the legal sector was involved in the national response and there was a pre-existing Task Force on HIV law and human rights, made up of diverse stakeholders representing people living with HIV, key populations, government ministries, human rights organizations and UN partners such as UNDP and UNAIDS.
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The Task Force was working towards increasing awareness of the rights of people living with and affected by HIV, law review and reform to strengthen protection of the rights of affected populations and the dissemination of the results of the People Living with HIV Stigma Index Study carried out in 2012. However, DRC determined that an LEA would strengthen the existing work being done, by identifying key remaining challenges in the law, rights and policy framework and prioritizing actions to strengthen laws, policies and practices relating to HIV.

In carrying out an LEA, partners in the DRC undertook various activities to build on and strengthen existing strategies and partnerships and to mobilize sustained commitment for action on HIV, law and human rights. By doing this, they were able to build on a network of informed, sensitized and committed partners who then also undertook follow-up actions arising out of the LEA. Strategies included:

  • awareness-raising: partners undertook preliminary activities to raise awareness amongst stakeholders on the need for and importance of undertaking an LEA
  • strengthening structures and partnerships: partners also undertook various activities to build on existing structures and partnerships to encourage sustainability for ongoing action on HIV law review and reform during and after the LEA, including:
    • assigning responsibility for overseeing the LEA to the existing task force on HIV law and human rights
    • establishing a close working relationship with the Ministry of Justice including advocating for the appointment of a National Focal Point on HIV and Human Rights and encouraging the Ministry of Justice to revive the HIV units within the Ministry
  • capacity Building: partners in the DRC also undertook further awareness raising and capacity building initiatives during the course of the LEA which further strengthened commitment to the process. This included:
    • holding a National Dialogue under the chairmanship of the Minister of Justice, with the participation of all key stakeholders including government ministries, parliamentarians, people living with HIV, key populations, members of the judiciary and law enforcement officials
    • producing a training manual on HIV law and human rights and holding capacity building sessions with key stakeholders
  • consensusbBuilding: the draft LEA was circulated amongst key experts to allow stakeholders such as the judiciary to provide expert input into the LEA and its recommendations

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