Africa: HIV Criminalisation a Setback to Africa’s Aids Efforts

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  • Civil society organisations working on HIV and human rights in Africa have denounced a trend in applying criminal law to HIV transmission. These laws also often provide for compulsory HIV testing, disclosure of HIV status and involuntary partner notification. Rights groups have appealed to governments to repeal HIV-specific criminal laws and reject any legislative proposals to create new HIV-specific offences.

Civil Society Condemns Criminalising of HIV

Civil society organisations working on HIV and human rights in Africa recently condemned the enactment of repressive laws which often include provisions that criminalise HIV transmission, non-disclosure and exposure.

The organisations delivered the statement at the 61st ordinary session of the African Commission on Human and People’s Rights in Gambia last month.

Some of these laws also often provide for compulsory HIV testing, the disclosure of HIV status, and automatic partner notification.

The director of the AIDS and Rights Alliance for Southern Africa (Arasa), Michaela Clayton, said these provisions are overly broad, and disregard the best available scientific evidence. They fail to pass the human rights test of necessity, proportionality and reasonableness.

“Rather, they have the effect of exacerbating stigma, discrimination and prejudice against people living with HIV. These measures undermine both an effective public health response to the HIV epidemic, as well as the human rights of people living with HIV,” Clayton said.

While there were no HIV-specific criminal laws at the start of the 21st century in sub-Saharan Africa, 31 countries have since then enacted overly broad or vague HIV-specific criminal statutes.

These laws and policies provide, among other things, for the criminalisation of HIV transmission, exposure and non-disclosure, despite the fact that in all of these countries, there are existing penal provisions which can be invoked in those rare cases of intentional HIV transmission.

The number of prosecutions continue to rise at an alarming rate in countries where HIV-specific criminal laws have been promulgated. To date, prosecutions have been documented in 16 countries.

Meanwhile, the executive director of the Southern Africa Litigation Centre, Kaajal Ramjathan-Keogh, said they are concerned about the current advancements in the HIV response in Africa being threatened by the misguided use of criminal sanctions by countries.

“As they argue, ‘control the spread of the HIV epidemic’, Ramjathan-Keogh said these laws, policies and practices violate the rights of people living with HIV, and of all healthcare users to informed consent, bodily integrity, dignity, freedom from inhuman and degrading treatment, and fair trial rights, amongst others.

“The protection of these rights is expressly provided for in Article 4 (bodily integrity), Article 5 (dignity), Article 7 (fair trial), and Article 16 (right to health) of the African Charter,” Ramjathan-Keogh said.

Women living with HIV face surveillance and state control regarding their reproduction, family planning, childbirth, child feeding, and child-raising choices. In many contexts, HIV criminalisation laws, policies and practices have a disproportionately punitive effect on women, as evidenced by recent cases.

Ramjathan-Keogh gave the example of a woman living with HIV who was prosecuted for breastfeeding in Malawi. There are also numerous examples of the prosecutions of people living with HIV in Zimbabwe, Uganda and Nigeria, particularly women.

In patriarchal societies, it is women who already disproportionately face the burden of the HIV epidemic due to their inability to negotiate protective sexual intercourse in relationships, and are often the first to be tested for HIV.

The executive director of the Centre for Human Rights Education, Advice and Assistance, Victor Mhango, however, recognised the positive developments made by some African countries due to consistent advocacy on the part of civil society. Two countries – Mauritius in 2007 and Comoros in 2014 – have strongly rejected HIV criminalisation.

“Mozambique revised its HIV law in 2014 to remove HIV criminalisation, and in Kenya, the High Court has ruled that section 24 of the HIV Prevention and Control Act 2006, which forced people with HIV to disclose their status to any ‘sexual contacts’, was contravening the Kenyan constitution which guarantees the right to privacy,” Mhango said.

He said as HIV and human rights organisations, they were calling for the African Commission on Human and People’s Rights to take leadership in protecting the rights of people living with and affected by HIV, including women living with HIV by:

  • Encouraging and reminding member states about their obligations under the African Charter and the Maputo Protocol, including resolutions adopted by the Commission.
  • Reminding states of their duties and mandates to protect and promote the rights of people living with and affected by HIV, including women and girls who are vulnerable to HIV, by prioritising the urgent needs for access to justice and the upholding of the rights to bodily integrity, autonomy, and health.
  • Calling on states to repeal laws that unjustly criminalise HIV transmission, exposure, and non-disclosure.