malawi: challenging the criminalisation of breastfeeding by women living with hiv

SALC worked with the International Coalition of Women (ICW), Malawi and a private lawyer, Mr Wesley Mwafulirwa, to support the appeal of a woman living with HIV against her conviction of a crime for breastfeeding a child in EL v the Republic.

Facts

The appellant, EL, is a woman living with HIV who was convicted of negligently and recklessly doing an act which is “likely to spread the infection of any disease which is dangerous to life” under section 192 of the Malawi Penal Code for accidentally breastfeeding another person’s child. She was unrepresented during her trial and sentenced to 9 months’ imprisonment.

Arguments

Before the High Court, she appealed her conviction and sentence and challenged the constitutionality of section 192 of the Penal Code for being vague and overbroad. She raised expert evidence to show the “infinitesimal risk” of HIV transmission by women on antiretroviral treatment through breastfeeding. The State agreed that the appellant’s conviction and sentence should be overturned and set aside.

High Court judgment

On 19 January 2017, the High Court acquitted the appellant and ordered her immediate release. It held that the proceedings in the trial court were irregular and “blatantly bias” against the appellant, compromising her right to a fair trial. This was because the charge was ambiguous and did not disclose the elements of a valid offense, and that the appellant’s plea was defective.

The Court held that the appellant did not have the requisite knowledge or belief that breastfeeding the complainant’s child was likely to spread HIV. The Court further set out the appropriate parameters for the limits to the application of criminal law in cases of HIV transmission and exposure, affirming that the law’s function should be primarily protective and to protect people living with HIV from “the unjust consequences of public panic.”

The Court held further that the custodial sentence imposed on the appellant was grossly excessive and stated that incarcerating women with children should always be a last resort.

Finally, on the constitutional challenge, the Court noted that the appellant’s argument was convincing however recommended that the matter be referred for separate determination considering the importance of the issue being one requiring national input.

Community support

The case raised concerns about the severity of stigma and discrimination against people living with HIV in the client’s community, and the social well-being of the client following her return. SALC has been supporting ICW Malawi and the Coalition of Women Living with HIV/AIDS (COWLHA) to provide psycho-social counselling and support to the client and her family as well as to engage the community and traditional leaders on issues concerning HIV treatment and testing,  stigma and discrimination. Community sensitization has been conducted through COWLHA and a support group has been established in the community.

NOTE ON ANONYMITY OF PARTIES

The Zomba High Court has issued an order that the names and personal details of the appellant, the complainant and their respective children be anonymised and protected from public disclosure. While press may report on the case, the Court warned that any use of the names or information that may identify the appellant, complainant or children would be a violation of the Court order and subject to contempt of court proceedings. 

In granting this order, the Court took judicial note of the fact that the stigma and discrimination attached to HIV continues to be a challenge for people living with and affected by HIV.

Court order on confidentiality

 

Court papers:

Appellant Submissions_Anonymised

State Submissions_Anonymised

High Court Judgment

 

 

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