Assessing legal environments for health, HIV, TB and malaria

Legal Environment Assessments (LEA), or Legal Audits, are a valuable tool for identifying legal, regulatory and human rights barriers and how they affect health, including for vulnerable and key populations at country-level, and providing a gateway to advocacy and action for enabling legal and policy environments.

UNDP support to LEAs

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 related health issues, and relating to 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 key and vulnerable populations, are able to access remedies for rights violations. In this way, LEAs provide information on how the legal 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. For instance, HIV-related LEAs have focused on issues such as:

  • 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, and
  • Access to treatment.

Outcomes of the LEA process

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 that adversely impact on health and wellbeing. LEAs also involve discussions with key stakeholders from all sectors of government, civil society and development partners. They often include focus group discussions with vulnerable and key populations, to discuss human rights and gender equality issues that impact them. LEAs involve consultations and feedback mechanisms to understand, discuss and analyse the findings. Finally, they include multi-stakeholder validation 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, they build consensus among national stakeholders on actions needed to strengthen legal 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 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: Building solidarity for sustained action during the DRC LEA

An existing national Task Force on HIV law and human rights in the Democratic Republic of Congo (DRC) 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. The government, however, determined that an LEA would strengthen the existing work being done, by identifying key remaining challenges in the legal and policy framework and prioritising 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 mobilise sustained commitment for action on HIV, law and human rights. By doing this, they were able to successfully 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, and
    • 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, and
    • Producing a training manual on HIV law and human rights and holding capacity building sessions with key stakeholders.
  • Consensus Building: 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.

Other assessment tools

Additional tools to assess the human rights and legal environments for health, including those that can be used in conjunction with an LEA, are included below.

Global Fund Baseline Assessments of Human Rights Related Barriers

Starting in 2017, as part of the Breaking Down Barriers initiative, the Global Fund supported twenty selected countries to undertake baseline assessments of human rights and gender-related barriers to HIV, TB and malaria services, review existing programmes to address these barriers, including why they have remained small-scale, and identify how these barriers could be comprehensively addressed, and the associated cost. A summary of key findings of the baseline assessments shows that there remain various, intersectional barriers to health services and key population-led organisations have insufficient capacity to address these. Existing programmes to address human rights-related barriers are small, inadequately resourced and supported, not co-ordinated, insufficiently integrated and not well evaluated.

Informed by these baseline assessments, country stakeholders, with the support of Global Fund staff, have held multi-stakeholder meetings and developed five-year national plans, and funding requests, to scale up programmes to reduce human rights and gender-related barriers.

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 legal and policy environments that address human rights challenges for health.

UNDP-supported country engagement scans

Some countries have supplemented or followed up LEAs with an engagement scan. An engagement scan aims to provide country partners with information on opportunities for engaging in law and policy review and reform on health, key and vulnerable populations. It focuses on national processes, but also covers opportunities at international and regional level. In this way, it helps partners, particularly civil society to plan interventions aimed at the legislative, executive and judicial arms of government, for creating enabling legal and policy environments.

An engagement scan aims to:

  • Provide a brief overview of a country’s legal environment, including, where possible, recommendations for law and policy review
  • Identify the key institutions that are relevant to law and policy reform
  • Detail the processes through which law and policy reform occurs, and
  • Outline the ways in which civil society organizations can engage in these events and processes.

See, for instance, UNDP’s Linking Policy to Programming project LEAs and Engagement Scans.

Stop TB Partnership Community, Rights & Gender Assessments

The Stop TB Partnership’s 2020 guide for a Community, Rights and Gender Assessment is an integrated guide to support countries to review stigma, discrimination, legal and policy frameworks and the impact of gender on vulnerability to TB and access to TB services and treatment outcomes, as well as to develop a costed national action plan and accountability framework for implementation.

See the Stop TB Partnership’s Communities, Human Rights and Gender webpage for examples of Country CRG Assessment Reports.

Checklist to integrate human rights in COVID-19 assessments

An assessment of health rights should also include an analysis of key and vulnerable populations, and the impact of COVID-19 laws, regulations, lockdown restrictions and law enforcement on access to health care services. UNDP developed a COVID-19 and Human Rights Checklist to help countries promote rights-based socio-economic responses to COVID-19, taking into account issues such as:

  • The use / misuse of criminal law to prevent the spread of COVID-19;
  • Law enforcement and state-based violence against key populations during COVID-19;
  • Reasonable, specific, time-bound and evidence-based limitations on movement, adjusted in response to new evidence;
  • Confidentiality and privacy;
  • Stigma, discrimination and violence against key and vulnerable populations;
  • Non-discriminatory access to food, health care, shelter or other basic needs, taking into account key and vulnerable populations;
  • Non-discriminatory access to HIV treatment and prevention services for key and vulnerable populations;
  • Conditions (e.g. overcrowding, access to health and sanitation) in detention settings
  • Occupational health and safety
  • Gender and COVID-19, including gender-based violence against women, children and lesbian, gay, bisexual, transgender and intersex people during lockdowns
  • Support for designated essential workers, including community health workers and community-led service providers, journalists and lawyers
  • Civil society and judicial accountability for response

Learn more:

UNDP (2020) Check-list for a Human Rights-based Approach to Socio-Economic Country Responses to COVID-19
UNAIDS (2020) Rights in a Pandemic