BANJUL, The Gambia—Civil society organisations working on HIV and human rights, delivered a statement at the 61st Ordinary Session of the African Commission on Human and People’s Rights condemning the disturbing trend of the enactment of repressive HIV specific laws which often contain provisions that criminalise HIV, transmission, non-disclosure and exposure. These laws also often provide for compulsory HIV testing, disclosure of HIV status and involuntary partner notification.
“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,” said Michaela Clayton, Director of the AIDS and Rights Alliance for Southern Africa (ARASA).
In sub-Saharan Africa, while there were no HIV-specific criminal laws at the start of the 21st century, 31 countries have since then enacted overly broad or vague HIV-specific criminal statutes. These laws and policies provide, inter alia, 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 continues 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.
“We are concerned that the current advancements in the HIV response in Africa are being threatened by the misguided use of criminal sanctions by States, to – as they argue – ‘control the spread of the HIV epidemic’. 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 specifically provided for in Article 4 (bodily integrity), Article 5 (dignity), Article 7 (fair trial), and Article 16 (right to health) of the African Charter,” said Kaajal Ramjathan-Keogh, Executive Director of the Southern Africa Litigation Centre.
Women living with HIV face surveillance and state control in terms of 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. For example, in Malawi a woman living with HIV was prosecuted for breastfeeding. In addition, there are numerous examples of prosecutions of people living with HIV in Zimbabwe, Uganda, and Nigeria, particularly women. In our 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.
“We, however, would like to recognise the positive developments made by some African countries due to consistent advocacy on the part of civil society. Two countries have strongly rejected HIV criminalisation: Mauritius in 2007 and Comoros in 2014. Furthermore, Mozambique revised its HIV law in 2014 to remove HIV criminalisation, and in Kenya the High Court has ruled that section 24 of HIV Prevention and Control Act 2006, which forced people with HIV to disclose their status to any ‘sexual contacts’, was found to contravene the Kenyan constitution that guarantees the right to privacy,” said Victor Mhango, Executive Director of the Centre for Human Rights Education, Advice and Assistance (CHREAA).
As HIV and human rights organisations we call on 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.
The full Statement to the African Commission on Human and People’s Rights can be found here.
AIDS and Rights Alliance for Southern Africa
Centre for Human Rights Education, Advice and Assistance
Centre for the Development of People
Coalition of Women Living with HIV in Malawi
Southern Africa Litigation Centre
Women Lawyers Association of Malawi
Zambia Network of Religious Leaders Living With or Affected by HIV and AIDS
 HIV Justice Network et al (2016) Advancing HIV Justice 2: Building Momentum Towards Advocacy Against HIV Criminalisation, available at: https://hivlawcommission.org/wp-content/uploads/2017/06/312008825-Advancing-HIV-Justice-2-Building-momentum-in-global-advocacy-against-HIV-criminalisation-1.pdf.