Getting to zero - or just empty promises?

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Department for Social Science Peace and Development Studies

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Getting to zero - or just empty promises?

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A study of Kenya’s AIDS Strategic Framework from a Human Rights perspective

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Bachelor thesis in Peace and Deveopment Studies

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2FU3IE

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Author: Lisa Skatka

Tutor: Lennart Wohlgemuth Examintor: Chris High Date of seminar: 2016-01-20

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Abstract

This bachelor thesis has been conducted after having personally observed and becoming interested in the HIV response in Kenya. The aim of the study is to assess the capability of Kenya’s AIDS Strategic Framework (KASF) based on Susan James perspective on rights as enforceable claims. It will do so by answering the question; ”what understanding of humans right to highest attainable standard of health is expressed in KASF? In order to do so, James’

conditions and circumstances have served as the foundation to an abductive study which seek to assess KASF from a different perspective.

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The study is primarily based on Kenya’s AIDS Strategic Framework (KASF) and Susan James’ (2003) article “Rights as enforceable claims”. The results and conclusions are reinforced by the use of other supporting documents to KASF and official reports and surveys.

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The results presented in this qualitative study of KASF concludes that some community groups are portrayed as stronger claim-holders than others, with some groups almost being excluded. Furthermore, this thesis establishes that the access to the highest attainable health is hindered by obligation-holders own emotional dispositions as well as institutional limitations.

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Keywords: HIV, AIDS, Kenya, strategic framework, Human Rights, enforceable claims

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Table of contents

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Abstract

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List of abbreviations 5

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1. Introduction 7

1.1 Problem identification 7

1.2 Purpose and contribution 8

1.3 Research questions 9

1.4 Disposition 10

1.5 Limitations and delimitations 10

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2. Methodology 11

2.1 Qualitative study 11

2.2 Abductive study 12

2.3 Data systematisation 12

2.3.1 Data selection 12

2.3.2 Data interpretation 13

2.4 Reliability and validity 14

2.4.1 Researchers bias 15

2.5 Ethical considerations 16

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3. Literature overview 17

3.1 Human Rights and development 17

3.2 Use of Human Rights in strategic frameworks (HRBA) 19

3.3.Rights as enforceable claims 19

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4. Analytical framework 22

4.1 Explaining the model 22

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5. Research results and analysis 26

5.1 Leave no man behind 26

5.1.1 The holy trinity of HIV 27

5.1.2 Men, women and children, one happy family? 31

5.2 Making HIV everyone’s business 34

5.2.1 All for one and one for all? 34

5.2.2 What makes the world go round? 37

5.3 Who run the show? 40

5.3.1 Structured chaos? 41

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6. Conclusion 45

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7. Reflections 47

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8. Bibliography 49

8.1 Published sources 49

8.2 Unpublished sources 50

8.3 Internet sources 53

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List of abbreviations

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AIDS - Acquired Immune Deficiency Syndrome

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ART - Anti-Retroviral Therapy

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ARV - Anti-Retroviral

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CRC - Convention of the Rights of the Child

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CRR - Center for Reproductive Rights

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CSO - Civil Society Organisation

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eMTCT - elimination of Mother To Child Transmission

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FIDA - Federation of Women Lawyers - Kenya

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GBV - Gender Based Violence

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HAPCA - HIV and AIDS Prevention and Control Act

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HIV - Human Immunodeficiency Virus

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HRBA - Human Rights Based Approach

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IDU - Inject Drug User

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KASF - Kenya AIDS Strategic Framework

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MoH - Ministry of Health

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MSM - Men having Sex with Men

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NACC - National AIDS Control Council

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NCAPD - National Coordinating Agency for Population and Development

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NEPHAK - National Empowerment Network of People Living With HIV and AIDS in Kenya

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PLHIV - People Living with HIV

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PMTCT - Prevention of Mother To Child Transmission

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SSA - Sub-Saharan Africa

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UN - United Nations

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UNAIDS - Joint United Nations Programme on HIV/AIDS

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VCT - Voluntary Counselling and Testing

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WHO - World Health Organisation

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1. Introduction

1.1 Problem identification

“Since the early days of the HIV epidemic, people, inspired with conviction and courage, have struggled against the odds and faced significant risks in pursuit of a more equitable world. Whether they are gay activists in New York, women’s groups in African communities, sex workers in India, transgender people in Brazil or people around the globe living with HIV, people with purpose and vision have led the HIV response. Their struggle has evolved into unprecedented national commitment and serves as a beacon of global solidarity” (Michel Sidibé, UNAIDS Executive Director, 2010, Getting to zero; foreword).

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Despite tremendous effort, resources and attention given world wide, HIV and AIDS are still considered a global health emergency. According to the World Health Organisation (WHO), in 2012 HIV/AIDS was the second leading cause of death in low income countries and was rated the sixth leading cause of death worldwide. Nearly 71% of the total global population living with HIV are found in Sub-Saharan Africa (SSA), with 81% of the region’s HIV- positives divided between ten countries, with Kenya being one of them (UNAIDS 2014).

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Over the last decade or so, health related problems have received great attention and are now considered one of the ground pillars in regard to development. Nattrass (2014) for example argues that the inclusion of health targets in the Millennium Development Goals reflects and facilitates an already existing and expanding international health agenda by acknowledging the idea of ”health as development”. Poor health systems may result in high levels of illness and mortality rates which could limit a nation’s access to skilled workers which can be regarded as an obstacle for a country’s development. The importance of health in regard to development is stressed in Kenya’s newest addition to the HIV response, Kenya AIDS Strategic Framework (KASF). This strategy, launched in 2014, states in the foreword that;

“health being a priority because improving development is particularly essential to building skilled and competitive workforce and lifting people’s living standards” (NACC 214a;vii).

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Furthermore, KASF was launched during a time when Kenya underwent many reforms following the new constitution adopted in 2010 (National Council for Law reporting 2010).

Two of the most dominant features of the reforms following the new constitutions are the devolution of political and economic power and the inclusion of the Bill of Rights. Thanks to these features the constitution has been praised by world leaders and help organisations world wide. The question is however if the Kenyan government can live up to the expectations following the new constitution. Furthermore it is interesting to see how these changes are visible in the country’s HIV response, with special regard to the Bill of Rights. While Human Rights have been given a prominent role in the international society, and are often included in strategies and work plans, the concept of Human Rights often portrays a utopia and not applicable in the real world. This is something Susan James (2003) highlights in her article

“Rights as enforceable claims” where she offers her view on how we can make rights enforceable by adhering to certain conditions and circumstances which she presents in her article.

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1.2 Purpose and contribution

The purpose of an AIDS strategic framework is to outline the best possible response towards preventing the spread of HIV and AIDS that may save millions of people from stigmatisation and a premature death. The latest edition in Kenya’s HIV response is Kenya AIDS Strategic Framework 2014 - 2019 (KASF), which states as its vision “A Kenya free of new HIV infections, stigma and AIDS related deaths” (NACC 2014a;x). It further claims to “provide guidance for addressing the HIV and AIDS epidemic in Kenya” by reversing the spread of HIV and improving the lives of those infected and affected (NACC 2014a;ix). KASF was developed during a turbulent time in the Kenyan political scene with constitutional changes taking place and the whole governmental system being reorganised. Two of the more prominent new features are the devolution and the Bill of Rights. With the Bill of Rights now included in the constitution a greater emphasis on Human Rights is to be found in KASF who mentions the use of rights-based approaches as one of its guiding principles (NACC 2014a;

4). Similar to the old strategies, high expectations are put on this strategy as it affects a large number of lives. Henceforth it is important that this document is useful not only in theory but also in practise.

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In this thesis I will make an effort to interpret and analyse KASF with the help of Susan James’ theoretical perspective within Human Rights. As the implementation of the strategy will affect the lives of a large number of Kenyans, I will argue that it is important for it to be critically examined and the value and feasibility of it established. In regard to the emphasis put on Human Rights in the framework and the debate surrounding the universal application and usefulness of Human Rights at global level I find it an interesting and important aspect to look deeper in to. Can Human Rights actually play an important role in the HIV response?

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My initial literature review indicates that while there are many publications on HIV/AIDS in different contexts and there are progress reports based on previous strategic frameworks, none of the publications seem to do a deeper analysis of the framework’s feasibility. Given that the new KASF has been developed at a time of increased focus on Human Rights and the devolvement of the health sector, in theory it should be very different from the previous one and thus a deeper analysis would be interesting. A critical study of KASF from Susan James’

perspective could help see how the devolvement of the health sector has affected the Kenyan HIV and AIDS response from a Human Rights perspective. Based on this, my contribution to the field will be to assess how well KASF take Human Rights into account. Are the rights from James’ point of view enforceable and therefore useful, or are they just empty promises and only included in the strategy to please the international community?

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1.3 Research questions

The Constitution of Kenya (2010) article 43(1) states that; “every person has the right to the highest attainable standard of health, which includes the right to health care services, including reproductive health care”. The same article is repeated in KASF (NACC 2014a;1).

Therefore it is logical that my main research question will be as follows:


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- What understanding of all humans’ right to highest attainable standard of health is expressed in KASF?

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With the underlying questions:

- In what way are obligation- and claim-holders portrayed in the strategy and has any group been excluded?

- What is the strategy’s take on institutions ability to help?

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1.4 Disposition

The first chapter in this thesis includes a short presentation of the background to the research problem as well as stating the purpose of the subject. It also presents the research questions chosen for this thesis. The second chapter provides an introduction to the chosen research method followed by a description of the method for collecting and analysing the data. This chapter also includes a section where I discuss the reliability and validity of my work as well as ethical considerations. Previous research results will be covered in chapter three, where I will provide a brief literature overview. This chapter will give the first introduction to James perspective on enforceable rights which will be used as an analytical framework in this study.

The fourth chapter gives the reader a deeper understanding of the analytical framework and explains how it will be used. In chapter five the research result combined with the analysis for this thesis will be presented. Chapter six will conclude my research findings, followed by a brief discussion in chapter seven.

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1.5 Limitations and delimitations

This study could have been more thorough and gone deeper in to each of the conditions and circumstances presented by James. There are many aspects of Kenya’s HIV response that have not been addressed and some of which I have only scratched the surface. The reason is that I had to limit myself and only cover the aspects I found most relevant. Despite finances being a relevant issue to this study and there being a chapter in KASF addressing the financial situation in the HIV response, I have made an active choice to not discuss that aspect of the strategy. This is partially due to lack of knowledge of economic matters but also due to the fact it is a pretty big question in itself and risks taking focus from other matters.

My aim for this thesis was not to discuss Kenya’s economic situation, but how well Kenya cope with the HIV-epidemic from the resources they possess.

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2 Methodology

In this section I will account for my chosen methods. Firstly I will provide a short introduction to fundamentals of qualitative research, followed by a brief explanation of the abductive method. To conclude this section I will describe the method chosen to collect data and the use of qualitative content analysis. I will further discuss why I have chosen this method for interpreting the data.

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2.1 Qualitative study

As the intention of the study is to describe and understand KASF from a different perspective rather than verify an existing theory a qualitative method is most suitable. Using Creswell’s definition, qualitative research can be explained as below:

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“Qualitative research is an approach for exploring and understanding the meaning individuals or groups ascribe to a social or human problem. The process of research involves emerging questions and procedures, data typically collected in the participants setting, data analysis inductively building from particulars to general themes, and the re-searcher making interpretations of the meaning of the data...” (Creswell, 2014: 4)

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First, this study will discuss KASF from Susan James’ perspective of claims as enforceable rights. By using James’ argument regarding conditions and circumstances on KASF it can be argued that if the rights set forth in the strategy lack the means to be fully implemented and thus enforced we can ascribe meaning to the structure of KASF as a problem towards the HIV and AIDS response. Next, during the research process new questions have emerged as my interpretations of the data have revealed new insights into the problem. These interpretations have first been built inductively by identifying reoccurring factors on which general conclusions have been drawn and later analysed using an abductive approach with the help of James. Finally, data has been collected in the participant’s setting, through the use of academic journals and government publications.

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2.2 Abductive study

In the words of Danermark et al (2002:80) an abductive method is used “to interpret and re- contextualise individual phenomena within a conceptual framework or set of ideas”. This will allow me to see possibilities and to understand processes through a more holistic point of view, meaning that I will be able to expand my understanding of KASF. Instead of investigating KASF strictly through a theoretical point of view, James’ perspective allows for a deeper analysis of the framework’s usefulness and accessibility for the lay population. What has motivated me to carry out this abductive study of KASF is the prospect of reviewing the framework from a different perspective which could lead to a new understanding of the Kenyan HIV and AIDS response and possibly improve it. As James (2003; 133) argues, it is important that the rights set forth are more than just moral values to not serve as a mockery for those in need. While KASF may look useful at first glance it will be interesting to see how well it responds to James’ three conditions and four circumstances to make the claims enforceable.

2.3 Data Systematisation 2.3.1 Data selection

As this study is carried out as a qualitative desk study it will be built primarily on the Kenya AIDS Strategic Framework 2014/15-2018/19. KASF makes up the guidelines for Kenya’s HIV and AIDS response by determine and form the actions taken by the Kenyan health sector. For this reason I have chosen this document as the basis of the study. As KASF is the fourth framework produced by the Ministry of Health (MoH) in collaboration with the National AIDS Control Council (NACC) lessons have been learnt and improvements made over time. My initial plan for this thesis was to compare the older frameworks with this new one to highlight the differences. However, the newly adopted constitution, with its inclusion of the Bill of Rights, puts the framework in a new light and differentiates it from the previous ones. Therefore I felt a study of KASF through a Human Rights perspective would be more interesting.

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The use of academic and official publications are not uncommon sources of data within the field of social sciences. However, all material should be scrutinised based on authenticity,

credibility, representativity and meaningfulness to establish the quality of the document (Bryman 2011;489). As an official document, sanctioned by governmental officials, I see no objection to using KASF.

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While KASF form the foundation for this research, additional academic publications have been used. In line with the features of a qualitative approach, the data collection and analysis has taken place alongside each other (Denscombe 2010;272). The collection of data has been done through the method of theoretical sampling which in short means that any concepts or questions that derive from the analysis of my primary data, will determine what sort of further information I should seek. This method is therefore responsive to my findings and allows me to understand the concepts in-depth by filling the gaps in my knowledge. Corbin and Strauss (2008:144-45) explain this as a circular process where “[d]ata collection leads to analysis. Analysis leads to concepts. Concepts generate questions. Questions lead to more data collection so that the researcher may learn more about those concepts”. However, as Susan James’ theory of enforceable rights has been used as an analytical framework she is responsible for the guidelines of what to look for and put forth some pre-existing concepts.

The additional data consist of academically peer-reviewed publications found through searches on the Ebcohost database as well as recommended reading and references found in related articles.

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2.3.2 Data interpretation

The purpose of this thesis is, through a non-judgemental, but critical approach, problematise KASF from Susan James perspective on rights as enforceable claims. In order to do so I will be using the method of a content analysis combined with a discourse analysis for extra depth.

According to Bryman (2011;505) the method of content analysis is frequently used for studies aiming to review specific documents. The method follows a logical and relatively uncomplicated procedure allowing the author to break the text down into smaller units which are then systematically categorised relevant for the study (Denscombe 2010;282). Beckman (2007;49-50) describes it as putting on a set of glasses, which can help reveal new messages or ambiguities in the text. The idea of doing a content analysis is to elucidate what KASF

establishes as relevant, what their priorities and values are and how well they align with the perspective presented by Susan James.

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However, Denscombe (2007; 309) also highlights that one of the shortcomings with a content analysis is its inability to deal with a text’s implicit meaning. To overcome that shortcoming I will also conduct a discourse analysis that will help me reveal the underlying messages in the literature. In contrast to a content analysis, which focuses on the actual content, a discourse analysis is more critical and seeks to find certain factors that reflect, generate or enhance cultural or hidden messages in the literature (Denscombe 2007;394). Through this method one can show how a text should be understood and provide aspects of the text which are not portrayed at first sight. As explained by Bergström and Boreus (2005;167) an idea consists of two parts; one visible and one latent underlying part, where idea analysis can make the invisible visible. The use of a discourse analysis allows me to reflect upon what KASF explicitly expresses and also pay attention to what has been left out of the strategy.

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The glasses of my choice for this study will be as previously described, Susan James’ (2003) conditions and circumstances set forth in her article “Rights as enforceable claims”. The analysis is conducted by identifying certain key concepts and expressions which are used as reference points to answer my research questions. According to both Denscombe (2010;282) and Beckman (2007;20,24-25) the concepts only become useful as reference points once you have determined the significance that the concept has to your study. Hence the researcher ought to have an idea of what type of categories or ideas to look for in the text. Naturally, the concepts I will be using in this study are influenced and based on Susan James’ perspective.

In my analysis I will therefore discuss the presence and absence of Susan James’ three conditions and four circumstances in KASF and the implications of them. The meaning subscribed to these concepts is found in the section presenting the analytical framework.

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2.4 Reliability and Validity

When it comes to abductive methods there are no set criteria to evaluate the validity of an analysis. Therefore, Danermark et al (2002;80) argue it can be difficult to assess the validity of conclusions drawn from abductive studies.

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When discussing reliability in qualitative research, Creswell (2014:201) refer to Gibbs (2007) who emphasises that the conceptualisation of the researcher must remain the same through out the study and in contact with different projects and researchers. In this thesis I will ensure reliability by carefully document each step in the data collection process and following analysis as was accounted for in section 3.3. By using the same approach as explained in that section, another researcher should be able to replicate the results of this study. However, it is unlikely another researcher would come up with the exact same results, as that researcher carries with him/her a whole new set of biases. To further ensure the reliability of this thesis I will in the following section clarify my biases, which is one step Creswell (2014;201) recommends.

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2.4.1 Researcher Bias

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“Qualitative data are inherently rich in substance and full of possibilities. It is impossible to say that there is only one story that can be constructed from the data. […]

Different analysts focus on different aspects of data, interpret things differently, and identify different meanings” (Corbin & Strauss 2008:50)

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Most researchers agree that it is impossible to maintain complete objectivity and for the author to avoid their background, epistemological assumptions and values from influencing the analysis. Therefore Creswell states that:

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“Good qualitative research contains comments by the researchers about how their interpretation of the findings is shaped by their background, such as gender, culture, history, and socioeconomic origin” (Creswell, 2014:202).

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First of all my reality is very different from the reality discussed in this study. My upbringing is characterised by safety, stability and a strong belief in the social welfare system. Coming from a socioeconomically wealthy household in Sweden with access to free quality health care, the contrasts are remarkable. In many ways it is therefore difficult for me to fully grasp the reality of the HIV-epidemic in Kenya and the implications it has on those affected.

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My motivation for this study can be traced back to the six months I spent in Kenya as an intern for an NGO working with HIV. Many of my experiences deeply shocked me and I was surprised to see the extent of the epidemic. Being a firm believer of equal rights and that every person hold the same value it was unsettling for me to experience how deep stigma concerning HIV is rooted in Kenya. This feelings and thoughts that arose during my time in Kenya has followed me throughout the work of this study.

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Despite my best efforts to put my epistemological assumptions and values aside they will, as with all qualitative research, inevitably influence the analysis. This study will only present my interpretation of reality, but by providing the readers with insights of my background, I hope it will give a better understanding of my conclusions.

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2.5 Ethical considerations

In many parts of the world, exclusion and marginalisation is part of everyday life for a person living with HIV and/or AIDS. Given these circumstances, any discussion concerning this subject must take care in using the correct type of language to preserve the dignity of those living with HIV and not contribute to worsen the stigma HIV positives face. With this in mind, this thesis is written following the terminology guidelines provided by UNAIDS (UNAIDS 2011).

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3 Literature overview

In this chapter I will give an overview on research previously conducted in relation to the subject of this thesis. As my analysis of KASF will be conducted through a Human Rights perspective I have decided to look deeper into literature giving a better understanding of the use and implementation on Human Rights in development work. I will start with providing an explanation of the connection between Human Rights and development, followed by a general overview of the use of Human Rights in strategic frameworks. The section will end with a presentation of Susan James’ work which will serve as an analytical framework in this thesis.

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3.1 Human Rights and development

As stated in the introduction Nattrass (2014) argues that there is an international health agenda where a strong connection between health and development exists. Furthermore KASF states in its foreword (2014;vii) that “health being a priority because improving development is particularly essential to building skilled and competitive workforce and lifting people’s living standards”. The former US President Roosevelt stated as early as 1944 “true individual freedom cannot exist without economic security and independence”(cited in Sengupta 2000;553-554). The concept of economic security comprises the right to food, clothing, housing, education, employment and of importance to this thesis, health. Based on these statements it is fair to say that there is an international acknowledgement that the health of the population plays an important role in developing the nation. Furthermore, just as we have the right to health, we also have the right to development. Article 1 of the UN resolution from 1986, which was further recognised through international consensus in 1993, states;

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“The right to development is an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realised” (Declaration on the Right to Development, UN Doc. A/

RES/41/128, 4 December 1986, art. 1)

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Arjun Sengupta, previously appointed Independent Expert on the Right to Development, by the Commission on Human Rights, Geneva and currently Independent Expert on Human

Rights and Extreme Poverty has written numerous articles on the subject (OHCHR). In his article “Realizing the right to development” (2000) he discusses the nature and content of the Right to Development and methods to implement it. Similar to James, Sengupta also discusses the role of states and civil society in implementing rights. Sengupta (2000;557) argues that by recognising the Right to Development as an inalienable human right a claim on national and international resources follows which obliges the states and organs of civil society, including individuals, to implement that right. After stating that everyone is responsibility for realising these rights, Sengupta moves in to a debate on resource constraints. Although realising that some states may have limited resources, he denounces the idea that some rights have a greater claim than others and should thus be addressed first, but still accepts that they may be fulfilled at different pace (Sengupta 2000; 559).

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Another contributor to the field of freedom, rights and development is Amartya Sen, an economist and Nobel Prize winner for his contribution to the field of poverty, development and economic theories. In 2001 Sen published the book “Development as Freedom”

presenting a new theory of development challenging the rather economistic view previously dominating the field. In the book Sen (2002; 17-18) argues that the process towards development is hindered by certain factors creating a lack of freedom. These factors include poverty or poor economy, which limits the access to food, health care etc, but also the lack of social welfare or an oppressive state. These factors have to be overcome to reach freedom and through that development.

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The above perspectives represent separate theories from independent authors, however, they still share common features. Both of them address Human Rights as a way towards development, one through freedom and the other through the right to development. The authors share the common idea that the implementation of Human Rights leads to development, wealth and a more equitable world, but for that to happen, we need to make sure we are not presenting empty promises.

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3.2 Use of Human Rights in strategic frameworks (HRBA)

While the previous subchapter discussed the link between Human Rights and development this subchapter will address how Human Rights are put to use in development work, with special regard to strategic frameworks. The last decade has shown an increase in the inclusion of Human Rights in strategies on both a national and an international level. Sofia Gruskin’s and Daniel Tarantola's (2008) qualitative study ”Universal Access to HIV prevention, treatment and care: assessing the inclusion of human rights in international and strategic plans” addresses the gap between expressions of Human Rights in strategies and the actual processes taking place to reach universal access in the HIV response. Their findings indicated that while the rhetorical acknowledgement of Human Rights are highly present, the practical application is increasingly insufficient (2008;123). Gruskin and Tarantola (2008;127) offer different explanations for these findings. Firstly they acknowledge that there may be cases of inadequate resources, such as lack of knowledge, training etc. There may be certain factors between the conceptualisation at policy level and the actual implementation causing the Human Rights approach to fail by being forgotten. Secondly, Human Rights rhetoric may be used in an attempt for political good will and not intended to be used at all. The final point that Gurskin and Tarantola make is that donors today are insistent on fast results, using short term indicators that do not leave much room for issues generated by a Human Rights approach. One of the main points Gruskin and Tarantola are making when it comes to a Human Rights based approach is the importance to pay attention to both processes and outcomes (2008;126). Results can be reached in many different ways, but we need to make sure they are carried out according to the Human Rights perspective.

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3.3 Rights as enforceable claims

As the above subchapter points out the mentioning on Human Rights in strategic plans does not always translate into actual rights emerging or being fully accessible. This correlates to Susan James (2003) article “Rights as enforceable claims” where she also raise concern on how Human Rights are used in development work but also offers her view on how we can improve the use of Human Rights by making them enforceable. In the opening phrases in her article James problematises the way we in the modern world use rights. She argues;

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“[w]hen governments or international organisations allocate rights of education, free speech or holidays to people who have no likelihood of gaining these things, their efforts are merely rhetorical gestures which display a lack of political and philosophical understanding” (James 2003;133).

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Despite her criticism towards how rights are used in the modern way, James still sees them as a relevant tool for change, but only if they are used in the right way. In order for the rights to avoid simply serving as empty promises or rhetorical gestures we need to separate between moral beliefs and rights. This is done, according to James, by ensuring that rights are not only built on morals but can also be implemented effectively (2003;137-138, 147). Furthermore, for rights to be understood as useful and actual tools for change rather than empty promises, James argues that they need to be claimable, meaning that individuals or their representatives can make reasonable claims upon them (2003;133). However, a person’s ability to claim a right differs depending on the context he or she exists in. For example, if corruption is widespread or governments and institutions are unstable or simply dysfunctional, it is more difficult for agents to claim their rights.

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The main questions James tries to answer with her article are what does it take to make rights claimable and what happens if rights become “unclaimable”, do they cease to exist?

According to James, for rights to be claimable and enforceable they need to adhere to the three conditions and four circumstances explained in her paper. The argument for the theory she presents has its foundation in Onora O’Neill’s (1996) article “Towards justice and virtue.

A constructive account of practical reasoning”. In the words of James (2003;134), O’Neill suggests “a right cannot be claimed, and therefore does not exist, when we are unable to find anyone whom to pin the correlative obligations”. In this matter James (2003;135-136) offers O’Neill some criticism since she presents rights that are claimable but not necessarily enforceable, which according to James translates into being a mockery and empty gestures.

Therefore James (2003;134) elaborates further on O’Neill’s arguments stating that first of all a distinction between a) claiming and b) enforcing rights are needed. A right can be, as O’Neill is stating, claimable if a responsible agent can be identified even if the right is not delivered, but what O’Neill fails to acknowledge according to James, is that it put no

demands on the agents obliged to obtain the rights. This means that while a right may be claimable it is not necessarily enforceable. To further strengthen her argument for the three conditions and four requirements, James takes inspiration from Raymond Geuss (2001) who while agreeing that rights depend on agents or a specifiable mechanism for enforcing it, it also must be “backed up by an effective method of implementation” (Geuss 2001;146).

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4 Analytical framework

This thesis will use the ideas presented in Susan James’ (2003) article “Rights as enforceable claims” as an analytical framework. James’ minimalistic and institutional view on Human Rights presents an interesting point of departure for research of Kenya AIDS Strategic Framework (KASF) which has a strong relation to Human Rights. In addition to KASF using a Human Rights Based Approach the inclusion of the Bill of Rights in the Constitution of Kenya has contributed to an even stronger focus on Human Rights. James’ perspective is relevant to this study as it places certain demands on how Human Rights should be used in development work in order to be efficient. The following section will therefore seek to explain the framework further.

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4.1 Explaining the model

The aim of this thesis is to analyse KASF through the lens of Susan James’ three conditions and four circumstances found in her article “Rights as enforceable claims”. Based on the work of O’Neill (1996) and Geuss (2001), James (2003) presents her theory on rights as enforceable claims. First of all James presents three conditions which need to be fulfilled for claims to be enforceable. She emphasises that it is not enough for one of the conditions to be in place, but all three conditions need to be met and work together in harmony (2003;141).

The first condition to be in place according to James (2003;139) is availability of institutions when she stated “obligations from which rights flow only emerge within elaborate and interlocking sets of institutions". What James (2003;139) means by institutions is vaguely defined as she talks about institutions in broad terms from families all the way up to governments. However, as James (2003;139) points out, no matter the level of the institution certain steps need to be followed, namely rights need to be taught, reinforced and sanctioned.

The point James is trying to make is that it takes the co-operation of many institutions for rights to emerge. As an example James uses the right to health care, which is dependent not only on the obligations from local health authorities, medical education, health personnel, equipment and so on but also from government ministries. Together institutions possess the ability to spread information and knowledge about rights but also practical skills to realise them.

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The second condition to be met is the identification of obligation-holders. These are the individual agents who James (2003;139-140) identifies as taking on various ‘sets of responsibilities’ and in that way contribute to rights emerging by bringing the institutional network to life. Again James is vague in regard to defining who the obligation-holders are more specifically. She does however emphasise the importance of the agents to “understand what they are obliged to do and know how to carry out their obligations” (2003;140). These requirements should be adhered to by creating effective procedures and sanctions both within institutions and externally. As an example James (2003;140) mentions a health authority which may not support its managers adequately with training, possibly hindered by government spending policy or by changes in the law. James (2003;140) continues by claiming that institutional design is not the only determinate on an institution’s effectiveness.

It also comes down to the attitudes of the agents or obligation-holders. Attitudes may include certain emotional dispositions such as confidence, determination, respect for sanctions, benevolence towards claim-holders, etc, which all determine how they perform their duties to meet certain obligations. James (2003;140) finishes her section on obligation-holders by stating “[t]he creation of institutions that work well enough to implement and enforce the obligations from which rights flow is therefore an elaborate and continuous process which must continually adapt to changing circumstances”.

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The third condition is related to the claim-holder. In order for an agent to claim his/her rights certain resources are necessary. Besides financial resources to pay for legal help, she also needs information on where to turn, knowledge of procedures, but most importantly she would need to know her rights. These resources are often connected with institutions such as libraries, firms of solicitors etc which again highlights the importance of institutions.

However, similar to the obligation-holder, emotional dispositions would play a role for the claim-holder as well. For instance, does she has the self-confidence, determination and indignation to go through with a complaint (James 2003;140-141)?

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In addition to the three conditions of a) institutions, b) obligation-holders and c) claim- holders, James (2003;142) also describes four different circumstances which need to be present for enforceable rights to emerge. As previously mentioned above, James has on

multiple occasions emphasised the importance of institutions and their co-operation. Again James (2003;142) stresses that the level of co-ordination that the realisation of rights presupposes can only be achieved if there is an “overarching and effective source of political authority, or a hierarchy of authorities with well-defined and accepted jurisdiction”. When institutions fail to meet these criterions, there may be areas where they operate less effectively or compete for resources, disrupting one another. These circumstances may cause fewer rights to exist and also make the existing rights harder to meet.

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The second circumstance James (2003;142) identifies relates to the distribution of power. For a right to emerge, agents need to be able to exercise their rights effectively. For minority groups the ability to enforce rights may be limited as they may have little or no capable representation.

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In relation to having limited representation and power, the third circumstance addresses how well agents command relevant resources. Without resources the agents will be unable to perform the duties put on them by the institutions. Therefore an institution’s ability to muster resources and how to distribute them determine the institution’s capacity to generate rights.

Again, resources here do not exclusively mean financial resources but also knowledge, power, contacts, drive, etc (2003;143).

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As the final circumstance, James (2003;143) point out that the “willingness of agents to contribute to the complex process of realising rights may be undermined if they are out of sympathy with the rights in question, or with some of the procedures, attitudes or dispositions on which these depend”. By that she means that rights emerge more easily in an environment where the majority see their value and thus receive an adequate level of support. Therefore James acknowledges the role culture and history may play in creating an environment for enforceable rights.

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Susan James’ perspective and the criteria she has drawn up can thus help us see how rights, viewed as enforceable claims, are not as accessible as we may think. When it comes to incorporating rights into different strategies there is a point in using her criteria to avoid

creating strategies which end up being a mockery to those they intend to help. James ends her article by stating how Western democracies often refer to themselves as ‘right-creators par excellence’ and thus highlight their well functioning rights-apparatus (2003;146). However, as pointed out by James, the emergence of rights depends on cultural practises and interchanges in line with the prevailing environment. Trying to implement the same rights and ideas that worked in the Western world may have very different outcomes in a different context, let’s say in a country with other preconditions.

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5 Research results and analysis

This bachelor thesis will present both the research findings and the analysis in a conjoint manner. The structure of the thesis will have close links to Susan James’ theoretical reasonings found in her article “Rights as enforceable claims”. The first section will discuss the main objective of the strategy and review its take on the claim-holder. The following section will focus on different levels of obligation-holders, here identified on individual level and then professional level with a focus on the health sector. The third and final chapter will examine the role of institutions and their contribution to fulfilling KASF.

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5.1 Leave no man behind.

As one of the main points in James’ arguments for rights as enforceable claims is the need for an identified claim-holder. Take almost any strategic document concerning global or national health of today and they are likely to be heavily influenced by a Human Rights based approach. This influence is often visible in the foreword or in the preface by stating the universality of the strategy. Words like ‘for all in need’ and ‘universal access’ are often used, proclaiming everyone as a claim-holder. In this sense KASF is no different but states “[i]t emphasises an equitable HIV response that ensures no one is left behind” and continues by saying that all Kenyans will be reached (NACC 2014a;vii). The preface continues by stating that the framework “requires that all actors pay particular attention to vulnerable and marginalised groups” (NACC 2014a;viii). Further the strategy expresses that while “the epidemic is deeply rooted among the general population in some regions of the country while there is also concentration of very high prevalence among key populations” (NACC 2014a;

6). This expresses that while the epidemic is affecting the general population, which would include all Kenyans although this specific wording is left out throughout the rest of KASF, there is still a focus on certain key populations, vulnerable groups and certain counties where the HIV burden is higher. This itself provides a paradox where the phrasing of ‘including all Kenyans’ or ‘leaving no one behind’ is in conflict with the special treatment of certain groups/areas which exclude the general population from certain actions and interventions. In theory this could be interpreted as some groups being more entitled as claim-holders than others. Given James’ condition of an identified claim-holder the purpose of this chapter is

therefore to examine further who KASF points out as a claim-holder more in particular and to what extent.

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5.1.1 The holy trinity of HIV

In 2010 Kenya presented her new constitution which guaranteed its citizens various rights and freedoms, most of them found in chapter four. These rights and freedoms, also known as the Bill of Rights, are partly or entirely borrowed from various international human rights instruments and thus provide a legal framework anchored in the international society (Maalim et al. 2014). Article 43(a) of the Constitution, which is of importance for this study states, “[e]very person has the right to the highest attainable standard of health, which includes the right to health care services, including reproductive health care” (National Council for Law Reporting 2010;art.43(a)). So while the Constitution clearly declares everyone as a claim-holder, KASF is somewhat more ambiguous. First of all the identification of claim-holders is complicated by the fact that it is seeking to guarantee both prevention and treatment, and thus addresses two different groups separated by their HIV status.

To be acknowledged as a claim-holder in regard to treatment the person in question has to be HIV-positive. While KASF itself does not explicitly express who is eligible for Anti- retroviral Therapy (ART), it does however make reference to the implementation of new 2014 ART guidelines, which recommend early initiation of ART among all stakeholders (NACC 2014a;23). In simple terms the new ART guidelines recommend ART for “[a]ll HIV- infected adolescents and adults with CD4 count <500 cells/mm3 irrespective of WHO ¹ stage ” (MoH; NASCOP 2014;16). Compared to ART guidelines from 2005, where the ² recommendation was for ART to be given at a CD4 count somewhere between 250 and 350cells/mm3 depending on WHO stage, KASF is now promoting the right to treatment

A type of white blood cells which help protect the body from infections. The HIV virus attacks and destroys the

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CD4 cells and can therefore be used as a marker on how far the virus has progressed. For more information go to www.aids.gov

WHO stage is a clinical staging of HIV and AIDS provided by the World Health Organisation. Each stage is

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characterised by different symptoms and diseases indicating the status of the infected and provide guidance when to start, substitute, switch and stop ART. For more information read http://www.who.int/hiv/pub/

guidelines/clinicalstaging.pdf.

much earlier (MoH 2005;28). From James’ perspective this can be understood as an example of strong will and strong morals by giving the HIV-positive individual a stronger position as a claim-holder through access to earlier treatment. However, the introduction of earlier ART can most likely also be explained by the improved resource allocation, another one of James’

circumstances. In the older ART guidelines there is a mention of treatment initiation in

‘resource poor settings’ where the recommendation follows that those in greatest need should be prioritised as the “decision as to when to start treatment is further complicated by the limitations of currently available ARV drugs” (MoH 2005;27-28).

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While the situation has improved in Kenya concerning access to Antiretroviral (ARV) drugs and Voluntary Counseling and Testing (VCT), the two foremost resources in the HIV response, the existing resources are still not enough to meet the demands of the population.

Inadequate number of educated health personnel and risks of shortages is therefore a serious problem (CRR & FIDA 2008;34). Following James’ reasoning, the lack of relevant resources weakens the claim-holders ability to claim their rights by limiting their access to care and treatment as well as testing services. KASF (NACC 2014a;23) expresses a will to improve this situation by recommending a series of interventions to improve quality and increase the coverage of care and treatment. By doing so they hope to have increased the ART coverage to 90% for all HIV-positives and thus strengthen the HIV-positive individuals’ position as claim- holders. Unless these promises can be translated into actual improvements and results they will just pose as empty promises and mockery in the eyes of James. The problem with lack of relevant resources will be further elaborated on in a later section focusing on the health sector.

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When discussing the HIV-positive individual’s position as a claim-holder the issue of stigma must be emphasised. As stated in article 27(4) of the Constitution of Kenya (2010;24), referenced in KASF (NACC 2014a;29), discrimination based on a person’s health status is against the law. Furthermore article 27(6) urges the state to take legislative measures, including action programmes and policies, to rectify any disadvantage suffered by individuals or groups who has been subjected to discrimination in the past. This shall be done, as expressed in the Constitution of Kenya (2010;24), “to give full effect to the realisation of the

rights guaranteed under this article”. Just after the reference to article 27 of the Constitution of Kenya KASF also gives attention to Kenya’s HIV and AIDS Prevention and Control Act (HAPCA) from 2006. This document represents the legal framework of the HIV response, addressing issues such as compulsory and forced testing, confidentiality and discrimination.

The two references to legal documents ensure that KASF has a legal foundation on which to rest and in the eyes of James strengthens the position of the HIV-positive claim-holders. As the HAPCA is also aligned to the HIV and AIDS Tribunal there are effective resources available for claim-holders to claim their rights. KASF uses the tool of policy making at county and national level to tackle stigma and discrimination (NACC 2014a;31). However, most legal documents are difficult to comprehend for people lacking legal training and HAPCA is no exception. Consider also that a large percentage of those infected or at risk of being infected by HIV live in more remote areas, maybe having dropped out of school early, leaving them with little or no access to such documents. Statistics from a stigma index report reveals that only 44.2% of respondents to the survey had knowledge of the law and only 37,4% of the participants had been aware of rights abuses against them over the last 12 months, while 15,5% stated they were not sure. A follow-up question also reveals that 59,5%

had attempted to address the issue legally, but only 3,23% were uncertain if their redress had been successful (NEPHAK 2011;11, 36). While actions to improve the legal frameworks are important, which is clearly stated in James’ circumstance of clear jurisdiction, we may not forget about the accessibility to relevant resources. So while, from James’ perspective, the references to HAPCA and the Constitution of Kenya provide jurisdiction and thus strengthen the HIV-positive individual’s position as claim-holder, it all comes down to the accessibility of this resource. Simply offering a service, but not making it accessible will act as the mockery James is warning us about.

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Let us now continue to the position of the HIV-negative individual as a claim-holder. While the HIV-positive individual has the right to treatment, the HIV-negative individual has the right to remain free from the virus. However, a large portion of the prevention effort puts a large responsibility on the individuals themselves to take precautions and avoid risky situations, something that will addressed further when discussing the obligation-holder. But what happens if the claim-holder, in this case the HIV-negative individual, experiences

circumstances which may provide difficulties in taking these precautions? KASF points out certain key groups and clusters of the population which are referred to as vulnerable ³ populations (NACC 2014a;17). These groups are singled out due to their social context ⁴ which make them more vulnerable and thus run a higher risk of becoming infected by HIV.

Taking a closer look at the social context which they are defined by it can be argued it gives them a weaker position in society due to for example poverty or gender inequality. From this position for these vulnerable groups it may be difficult to have a say in who, when, if and how to have sex with someone. Many women and men live in relationships where they are inferior to their partner and have no realistic opportunity to force him or her to use a condom or even be faithful to him or her. Looking at it from a poverty point of view, the claim-holder may lack access to the relevant resources, such as money and tools, mentioned by James.

Furthermore James (2003;141) emphasises the importance of the claim-holder’s personal assets such as confidence, determination and indignation play when exercising his or her rights. Being at the bottom of the society, it may be difficult to muster the confidence and strength to actually stand up for your rights. Using James’ pillars these uneven societal power distributions create a barrier for people to claim their rights. KASF touches on the subject, partly as it highlights these groups as special claim-holders in the prevention response and also through specific actions on meeting the social context that is weakening their position in society. For example KASF (NACC 2014a;18) recommends an implementation of gender based violence prevention and response programmes, investments in girls and women leadership, and implementing cash transfer programmes designed to keep girls in school.

These recommendations and actions are steps towards empowering young girls and women to take on a stronger role in society which will hopefully lead to a more equal society in the long run. The role of women in KASF will be further discussed in a later section.

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Above I have established both HIV-positives and HIV-negatives as claim-holders in regard to KASF, but what about those unaware of their status? According to the framework 53% of the

Defined as groups characterised by higher-risk behaviour which runs a higher risk of be infected irrespective

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of local context. Includes MSM, FSW, and IDU’s.

Includes young girls and women, people in prison or other closed setting, PLHIV, children and pregnant

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women living with HIV, and fishing communities, truck drivers, street children, people with disabilities, migrant populations and mobile workers.

people living with HIV in Kenya are not aware they are infected (NACC 2014a;19). At the same time Kenya HIV Prevention Roadmap states 80% of the female population know their status, while only 63% of the male population are aware of theirs (MoH 2014;8). While this problem is mentioned in KASF and certain actions are recommended, the population who are unaware of their status are not explicitly identified as claim-holders. Going back to the preface of KASF, the key strategic objectives include reducing new HIV infections, reducing AIDS related mortality, reducing HIV related stigma and discrimination and increasing domestic financing of the HIV response. Ensuring 100% of Kenya’s population know their status is not one of KASF key strategic objectives. The population who is unaware of their status can thus not be identified as claim-holders, despite that universal knowledge of HIV status could help reduce the spread of HIV.

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5.1.2 Men, women and children, one happy family?

In 2010 Mr Michel Sidibé, Executive Director of UNAIDS told a reporter “[t]his epidemic unfortunately remains an epidemic of women” (UN News centre, 2010). According the WHO (2011;105) 52% of those infected with HIV worldwide are women. Looking at the area of SSA the prevalence is as high as 60%. Turning our eyes to Kenya the national HIV prevalence is 6,04%, where women constitute 7,6% in comparison to men who make up 5.6% (MoH 2014;8). These figures clearly indicate that women are more affected by the HIV epidemic than men and thus may be considered more at risk. As touched upon in the previous section there is a focus in KASF on women empowerment and proposed interventions of the aim of strengthening women’s position. This together with that women and especially young women, by their sex, are singled out as extra vulnerable it can be argued that KASF portray women as weak and helpless individuals in need of protection. Following that assumption, as long as women are regarded as weak and helpless, it may be hard to find agents who are willing to help claim their rights, providing that the women in question even are aware of their position as claim-holders. However, the image of women portrayed by KASF as weak and helpless in this case can give them a stronger position as a claim-holder as they can be seen as claim-holders both as women and by their HIV status. Reading between the lines the focus on female empowerment suggests that KASF realises that the power distribution needs

to be addressed by granting women equal power to men in order for them to successfully access their rights which they are entitled to as claim-holders.

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Even though women are, in James’ definition, acknowledged as claim-holders and KASF expresses a series of actions to empower the women the strategy will not work unless a critical mass of the population actually are in favour of the reforms. In a review of the past five years of prevention programmes in Kenya there was an identified gap between perceived and actual outcome of behaviour change communication interventions where the results did not reach up to expectations (NACC 2014a;15). This could potentially be explained by a lack of understanding of the cultural context in which the strategy was implemented in. The inclusion and focus on empowerment strategies in KASF indicates a political will to change prevailing cultural structures. However, political will is not enough if there are no agents willing to “contribute to the complex process of realising rights” (James 2003;43). As long as the majority of the population fail to see the value of female empowerment it will be hard for women to receive the adequate level of support.

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Given the close connection between women and children it is not surprising that children are also identified as a vulnerable group. According to KASF young girls in their adolescent account for 70% of all pregnancies in Kenya, which places elimination of mother-to-child- transmission (eMTCT) as a priority measure in the HIV prevention strategy (NACC 2014a;

17). This puts children forward as a recognised claim-holder. This position is further strengthened by Kenya’s ratification of the Convention of the Rights of the Child (CRC).

However, children's role as claim-holders is complicated by the unclear definition of a child in KASF. While the most common definition of a child is a person below the age of 18, as stated in the convention, the strategy defines boys and girls in ages 0-14 as children (NACC 2014a;14). Adults are recognised from the age of 15 but at the same time KASF refers to adolescent ending at the age of 19 (NACC 2014a;23, NACC 2014b;9). To make matters even more complicated a person under the age of 15 may implicitly be regarded as an adult if pregnant, a parent or married (HAPCA 2006;14 Art 14(1b)). This deviation from the norms makes it unclear how Kenya should relate to this group of claim-holders and what obligations they have toward them. By the standards of CRC children aged 15-18 should fall under their

protection and not being acknowledged as a child by KASF put them at risk of being lost between jurisdictions. This circumstance can be related to the importance of a well-defined and accepted jurisdiction (James 2014;142). Since in this case there are multiple actors involved with different definitions there is a risk of no actor owning responsibility for this group which makes it difficult for them to exercise their rights.

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Returning once more to Mr Michel Sidibé statement that the HIV epidemic remains an epidemic of women, how does that affect the HIV response? Does the label of being a female issue scare men off from being associated with HIV? A quick glance through KASF makes it clear, as argued above, that there is a focus on women, but where does that leave the men?

Although men are not entirely excluded from KASF there is significantly less focus on them compared to women. While women are considered vulnerable as a group, men are often included in groups such as men who have sex with men (MSM), inject drug users (IDU), truck drivers and prisoners, but not explicitly identified as just men. When not being portrayed as men with homosexual tendencies or as criminals, the men are presented as bystanders to the women. Instead of trying to reach men directly with prevention messages and VCT, they are addressed by couple VCT and by encouraging male involvement in preventing mother-to-child-transmission (PMTCT) (NACC 2014a:18). While male involvement in these matters can lead to men becoming more sensitive of women’s reality it fails to acknowledge men’s position as claim-holders. Rather than being seen as a potential HIV-positive individual in his own right the man is now portrayed as a part of the woman’s escort. If also taking in to account the proposed actions in KASF concerning female empowerment and gender-based violence (GBV) interventions, we have a rather unfavourable image of men.

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This division between men and women further gives rise to the perception of women as weaker and more vulnerable to the virus than men. This contributes to strengthen the prevailing cultural context which KASF expresses a will to change by empowering women.

Furthermore the strategy’s reluctance to see men as claim-holders and rather vilify them by portraying them as violent and criminals may discourage men from getting involved and