20 May 2015
Malawi High Court judge Justice nyaKaunda Kamanga on Wednesday ruled that the police and the medical personnel violated the rights of 11 Mwanza women by subjecting them to mandatory HIV testing, setting a precedent by declaring that mandatory testing of HIV/AIDS is illegal and unconstitutional.
Lawyer representing the 11 women, Chrispine Sibande, filed an application in court on March 10 2011, arguing that their rights were violated when they were subjected to HIV test and the results made public.
The women who allege that their HIV status was publicly disclosed in an open court, argue that the mandatory HIV testing by government officials violated their constitutional rights to privacy, dignity, liberty, non-discrimination, and freedom from cruel, inhuman and degrading treatment.
Justice Kamanga ruled that the action of subjecting the applicants to forced HIV testing was unreasonable and violation of their rights to privacy, equality, dignity and freedom from cruel, inhuman and degrading treatment.
Sibande who was supported by the Southern Africa Litigation Centre and Open Society Initiative for Southern Africa, said the ruling has come at “a more critical time” when Malawi government is in the process of finalising the HIV and AIDS (Prevention and Management) Bill.
“Draft versions of the Bill have included provisions allowing mandatory HIV testing of various groups, including sex workers. It is internationally accepted that forced HIV testing is counter-productive and violates human rights,” said Sibande.
We hope the judgment will ensure that these provisions are finally removed from the Bill.The judgment is also progressive in that it considered equality between men and women in relation to HIV,” added the lawyer.
Centre for the development of people (Cedep) executive director, Gift Trapence, whose organisation also provided support to the case said he was pleased with the ruling.
Anneke Meerkotter from the Southern Africa Litigation Centre (SALC) said the ruling sets an “important precedent” in protecting the rights of vulnerable groups who are often subjected to such practices, not only in Malawi, but in many countries across the world.
“The case is testimony to the courage of the applicants, who were willing to hold government accountable for the violation of their rights despite the personal risks they faced in asserting their rights,” she said.