In-depth: Crime and punishment: Criminalisation and HIV

WEST AFRICA: HIV law "a double-edged sword"

Photo: Tiggy Ridley/IRIN

In several countries a woman can be charged for not taking steps to prevent HIV transmission to her baby

Johannesburg, 1 December 2008 (PlusNews) - West Africa has the dubious distinction of having the most HIV legislation in sub-Saharan Africa: over 10 countries in the region have developed HIV laws, often with provisions that have sometimes been described as "terrifying", and a danger to HIV-positive people.

In places like Guinea, Guinea-Bissau, Mali and Niger, a woman can be criminally charged with not taking the steps necessary to prevent HIV transmission to her unborn baby, such as taking antiretroviral (ARV) drugs during pregnancy. Sierra Leone recently changed a legal provision that explicitly referred to a mother passing on the virus to her baby as a crime.

In Togo, people who do not use male or female condoms in "all risky sexual relations" are considered to be breaking the law; HIV-positive people are prohibited from having unprotected sex, regardless of whether they have disclosed their status to their partner.

Guinean law requires mandatory HIV testing before marriage, while Togolese law provides for periodic mandatory testing of sex workers for HIV and sexually transmitted diseases.

A far from model law

The explosion of HIV/AIDS legislation did not happen overnight. Richard Pearshouse, director of research and policy at the Canadian HIV/AIDS Legal Network, told IRIN/PlusNews that most of these laws were based on the African Model Law, created in September 2004 during a workshop by Action for West Africa Region – HIV/AIDS (AWARE–HIV/AIDS), held in N'djamena, capital of Chad.

The model law developed in Chad is a template HIV act that has some good features, such as provisions guaranteeing pre- and post-test counselling, health care services for people living with the virus, and protecting HIV-positive people from discrimination in the workplace, when receiving healthcare and when trying to access credit and insurance.

But that is pretty much all it has going for it. The template was a "profoundly disabling, problematic and undermining law" that had serious flaws, said Pearshouse, who has worked with lawmakers in the region.

The model law states that a person diagnosed with HIV should disclose their status to a "spouse or regular sexual partner" as soon as possible and, at most, within six weeks of diagnosis, and also allows for physicians to notify a spouse or partner of the person's HIV status.

It requires that pregnant women undergo mandatory HIV testing during antenatal care, despite international guidelines that suggest the routine offer of a test. The law also makes provision for compulsory HIV testing to settle a marital dispute.

One of the major problems with the template was the "very broad language" used to define "wilful transmission" - the transmission of HIV "through any means by a person with full knowledge of his/her HIV/AIDS status to another person" - including via sex, needle-sharing, and mother-to-child transmission.

Pearshouse expressed concern that such a clause could "potentially apply to a range of people we wouldn't want to criminalise". But despite these serious weaknesses in the model law, at least seven countries in West and Central Africa have already used it as the basis for their national HIV legislation, while at least six others are in the process of developing similar laws.

Some countries have chosen to adopt the wording of the template law intact, while others have attempted to simplify it, making the legislation even worse, according to Pearshouse.

A double-edged sword

Leonie Amouzou, President of the Togolese NGO, Espoir Vie, an association of people living with HIV and AIDS, noted that Togo's HIV legislation, adopted after the model law was drafted, discriminated against HIV-positive people.

"The law was conceived with a double objective – to protect the rights of people living with HIV/AIDS, and to protect negative people from infection ... [but] it appears to be a double-edged sword." Yet the legislation is seldom used. "Until now, I do not know of any cases that have gone to court," Amouzou said.

The same is true in Benin. Dr Theophile Hounhouedo, president of West Africa's Network of AIDS organisations (WANASO), said it was rare to hear of a case brought to court in Benin.

Pearshouse admitted that such laws would be difficult to implement, and suggested that policymakers had belatedly realised that their enthusiasm for HIV laws had been misplaced. "In some places, people are being a little more critical of [such] bills, unlike before, when they were passed very quickly and with little consultation."

UNAIDS has been working with countries in the region, offering technical support in revising the laws in areas where they fall short of international guidelines, and endanger human rights. Togo has begun making amendments to its HIV/AIDS law, while Sierra Leone, Gambia and Cote d'Ivoire have started the review process.

Although Pearshouse noted that it would be "very difficult" to change the laws in countries that had recently passed legislation criminalising HIV infection, he was optimistic that countries in West Africa would amend their HIV laws to make them more human-rights friendly. "There's a lot of goodwill ... but it's been misplaced up to now," he commented.

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Crime and punishment: Criminalisation and HIV
December 2008

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