19 May 2015
The Malawi High Court will on Wednesday deliver landmark ruling on HIV and AIDS mandatory testing in a case of State versus Mwanza Police, District Hospital Ministry of Health and Home affairs and ex parte HB, JM and 9 others.
On 10 March 2011, eleven women from Mwanza, Malawi, filed an application in the Blantyre High Court through judicial review challenging their subjection to mandatory HIV tests, the admission of the HIV test results as evidence in criminal cases against them, and public disclosure of their HIV status in open court. The women argue that these actions by government officials violated their constitutional rights. The applicant’s lawyer was Chrispine Gwalawala Sibande, human rights lawyer with specialisation in Sexual Reproductive Health Rights.
The applicants were arbitrarily arrested in Mwanza on two separate occasions in September and November 2009 during sweeping exercises conducted by the police. On both occasions, a number of women were detained overnight at Mwanza Police Station. The police arrested both men and women but when they arrived at Mwanza Police Station, all men were released. The women were then taken to Mwanza District Hospital. At the hospital, the women were subjected to Mandatory HIV Testing which includes blood tests without their informed consent. This was done in presence of police. The medical officers noted the women’s names and test results on pieces of paper and handed these over to the police. Thereafter, the women were taken to the Magistrate’s Court where some were charged with spreading venereal diseases in contravention of section 192 of the Penal Code. In the courtroom, the particulars of the offence were read out loud including the fact that the women were HIV positive. This was the first time some of the women became aware of their HIV status.
Malawi government through Attorney General did not defend the case from 2011.
The applicants argue that subjecting them to mandatory HIV tests was unreasonable and arbitrary. They further argue that the mandatory HIV tests violated their constitutional rights, including:
- Their right to privacy and liberty of a person [section 21];
- Their right to non-discrimination [section 20;
- Their right to freedom from cruel, inhuman and degrading treatment [section 19(3)]; and
- Their right to dignity of the person [section 19(1).
In challenging the admission of the illegally-obtained HIV test results in each applicant’s criminal case, the applicants argue that this violated their constitutional right to a fair trial.Finally, the applicants argue that the public disclosure of their HIV status in court violated their constitutional rights to privacy and dignity. Again, some women were ordered by Mwanza Magistrate Court to leave Mwanza on the basis of their HIV status.
Importance of the Case
The case is important for a number of reasons:
- The case shows that it is possible for vulnerable groups to suffer at the hands of those in authority.
- The case will set an important precedent in Malawi and the region if it recognizes the right not to be subjected to mandatory HIV testing by the State.
- The case shows human rights violations caused by mandatory HIV testing and the importance of having legislation which prohibits this. This is important as the Malawi government is in the process of final deliberations of the proposed HIV and AIDS (Prevention and Management) Bill.