Reverend Joseph Mpinganjira, Chairperson
The Malawi Law Commission
Sent by facsimile:
RE: COMMENTS ON THE REPORT OF THE LAW COMMISSION ON THE DEVELOPMENT OF HIV AND AIDS LEGISLATION
Dear Reverend Mpinganjira and members of the Commission:
Human Rights Watch is pleased to have an opportunity to submit comments to the Law Commission on this report.
Human Rights Watch is an independent non-governmental organization, founded in 1978, that monitors human rights developments in more than eighty countries around the world. Since 2001, Human Rights Watch has been monitoring human rights violations in the context of the global HIV epidemic and has produced a number of reports that detail human rights violations that fuel the epidemic and create barriers to access to treatment, care and support for people living with HIV.
Human Rights Watch wishes to commend the Commission for its explicit commitment to human rights and is pleased to note that various attempts have been made to ensure that the rights of those infected and affected are recognized and protected.
Human Rights Watch notes that this is an interim report and hopes that this letter will alert the Commission to potential concerns, and assist it to strengthen the human rights protections provided by the proposed legislation. We have chosen to confine our comments to the draft legislation and have not commented on the background material provided in the report.
Composition of the National AIDS Commission
The report recognizes that ‘the prevention and management of HIV and AIDS requires the full participation of all citizens regardless of their sex'. The report also recognizes the disproportionate effect of the epidemic on both the vulnerability of women and girls to HIV transmission and its impact on them. Human Rights Watch therefore recommends that the composition of the National AIDS Commission be expanded to include a representative nominated by the women's sector in Malawi.
Human Rights Watch appreciates the Commission's acknowledgement of the gender dimensions of the epidemic. Human Rights Watch's research has found, as the Commission's comments accept, that human rights abuses faced by women and girls throughout their lifetime put them at risk of HIV and AIDS and impedes their access to potentially life-saving treatment, care and support. Women and girls may face many different human rights violations, including rape and domestic violence, other forms of sexual violence and coercion, unequal property and inheritance rights, laws on divorce and child custody that exacerbate women's dependency on their husbands and discriminatory barriers to education, health care and other social services. Human Rights Watch has documented these violations in a number of reports, including the following:
- Hidden in the Mealie Meal: Gender Based Abuses and Women's HIV Treatment in Zambia, 2007
- No Bright Future: Government Failures, Human Rights Abuses and Squandered Progress in the Fight against AIDS in Zimbabwe, 2006
- Positively Abandoned: Stigma and Discrimination Against HIV-Positive Mothers and their Children in Russia, 2005
- A Test of Inequality: Discrimination Against Women Living with HIV in the Dominican Republic, 2004
- Deadly Delay: South Africa's Efforts to Prevent HIV in Survivors of Sexual Violence, 2004
- Just Die Quietly: Domestic Violence and Women's Vulnerability to HIV in Uganda, 2003
- Double Standards: Women's Property Rights Violations in Kenya, 2003
- Suffering in Silence: The Links between Human Rights Abuses and HIV Transmission to Girls in Zambia, 2003
Human Rights Watch welcomes the prohibition on harmful practices that expose individuals to the risk of HIV infection. Many of these discriminatory practices aim to restrict women and girls' autonomy, especially in the expression of their sexuality. The legislation should send a clear message that such practices cannot be tolerated or justified in the name of culture and tradition.
Human Rights Watch is however concerned that the current draft of the act contains provisions that mandate compulsory testing in a number of circumstances: of pregnant women; persons charged with sexual offences; sex workers; and persons in polygamous unions. Mandatory HIV testing violates fundamental rights to privacy and bodily integrity protected by international treaties to which Malawi is a party. International guidance, including by the World Health Organization (WHO) and the Joint United Nations Programme on HIV/AIDS (UNAIDS) has thus explicitly rejected all forms of mandatory and compulsory HIV testing, and made plain that HIV testing should be voluntary, stating that
The conditions of the ‘3Cs', advocated since the HIV test became available in 1985, continue to be underpinning principles for the conduct of HIV testing for individuals. Such testing of individuals must be:
- be accompanied by counseling
- only be conducted with informed consent, meaning that it is both informed and voluntary.
We are further concerned that draft mandatory testing provisions will threaten the health of those tested, without actually protecting the health of third parties, which we understand is the rationale of such testing.
Mandatory testing of pregnant women, for example, undermines women and girls' rights to equality, as set out in various international conventions, and potentially exposes them to the risk of intimate partner violence and abandonment by male partners and families. (In this regard, see Human Rights Watch reports, ‘Hidden in the Mealie Meal' and ‘Just Die Quietly').
Testing of partners in polygamous unions will likely have a disproportionate impact on women, and again may potentially expose them to the risk of abuse, including intimate partner violence and abandonment and divorce. It is also important to note that there is currently little research that conclusively demonstrates that partners in polygamous unions are at higher risk of HIV infection than those in non-polygamous unions.
Mandatory testing of persons charged with sexual offences could actually undermine a rape survivor's ability to make informed decisions about his or her health. Instead of protecting rape survivors, such provisions could do harm by providing misinformation about the alleged offender's status. A negative HIV test does not conclusively establish that the person who committed an assault is not HIV-positive because some alleged offenders might be tested during the "window period," when an HIV test does not detect infection because HIV antibodies are not yet present in an infected person's blood. A negative test also will be misleading if an alleged offender is not the actual perpetrator of the assault. In either case, a survivor might be inclined not to obtain HIV post-exposure prophylaxis (PEP) because of a misleading negative HIV test of the accused. Second, many alleged offenders are not apprehended within the time period during which PEP needs to be initiated to be effective, which would make the information about HIV status irrelevant for preventing HIV infection of the victim. Mandatory testing of alleged offenders also threatens the fundamental rights of criminal suspects.
Human Rights Watch would therefore recommend that the Commission remove any reference to compulsory or mandatory testing.
Human Rights Watch is concerned that the proposed law does not contain any provisions relating to the testing of children, although it does state that HIV test results may be disclosed to the parent or legal guardian of a minor, defined as a child below the age of 14 years. Human Rights Watch is concerned that, should the law not specify how children can access HIV testing, and thereafter treatment, care and support, many children who do not live with parents or legal guardians will be exposed to violations of their rights to health, access to information and equality and non-discrimination Human Rights Watch recommends that the proposed law state that children above the age of 14 years be permitted to consent to an HIV test, without parental consent, if they are mature enough to understand the consequences of such a decision. This provision may be of particular importance for girls who have been sexually assaulted and who will need to undergo an HIV test prior to commencing HIV PEP.
Prohibition of Discrimination
Although Human Rights Watch welcomes the commitment to human rights protection expressed in this section of the draft law, it has some concerns about the manner in which specific provisions are drafted and whether they will be effective in preventing discrimination against people living with HIV.
The present draft of the proposed law does not contain a definition of what constitutes discrimination against people who are living with HIV or who are perceived to be living with HIV. The current draft criminalises ‘any form of discrimination' against people living with HIV and imposes a lengthy period of imprisonment or a substantial fine for this conduct. In the absence of a clear definition of HIV-related discrimination, Human Rights Watch does not believe that it is appropriate to criminalise all conduct that could potentially be labeled as discriminatory. In our view, civil remedies are a more appropriate form of redress, as accepted by the Commission further on in this section of the draft law. We urge the Commission to consider creative ways of facilitating access to justice for people living with HIV and AIDS whose rights to equality and non-discrimination have been violated, including alternate dispute mechanisms, provision of free legal assistance and access to information about legal rights.
Human Rights Watch was concerned to note that the proposed law seems to suggest that it might be possible to exclude people with HIV and AIDS from certain professions. Although the draft law does not currently specify which professions may lawfully exclude people living with HIV and AIDS, Human Rights Watch believes that any such exclusion would be unlawful, violate the human rights of individuals and be inconsistent with the provisions of international human rights laws and jurisprudence.
Privacy and Confidentiality
The Commission recognizes and supports the right to privacy and confidentiality for people with HIV and AIDS, an approach which is consistent with international norms and standards. Human Rights Watch is however of the view that the wording of the provision that protects that right to confidentiality about state of health is too broad and may be interpreted in a manner that could put people living with HIV and AIDS at risk of discrimination, violence and other human rights abuses. Human Rights Watch recommends that the words ‘if the conditions and characteristics of their life and work do not constitute a risk of infection to others', be deleted from the section.
There is a widely accepted body of scientific and medical research which shows that the risk of occupation transmission of HIV is extremely small in almost all workplaces, and can be effectively managed through the provision of accurate information about preventing exposure to HIV and through the use of universal precautions.
Human Rights Watch is also concerned that the draft law permits service providers to disclose to sexual partners ‘when they obliged to do so', without specifying in what circumstances they would be obliged to make a disclosure. Human Rights Watch assumes that the rationale behind this provision is to protect third parties from potential infection. There is a significant risk that such a provision will have a disproportionately negative affect on women. They are more likely to be tested, in the context of accessing ante-natal and pregnancy related health services, and therefore more likely to know their HIV status. Forced disclosure to male sexual partners could expose women to human rights violations, including violence.
The draft also fails to specific which service providers are entitled to make these disclosures and Human Rights Watch is concerned about which service providers will be permitted to release such confidential information and what procedure will be put in place to prevent unlawful disclosure.
The draft provision provides that consent of another to disclosure of a person's HIV status is permitted if "in the opinion of the service provider who undertook the HIV test, the person has a disability or appears incapable of giving consent." Human Rights Watch is concerned that this provision is overbroad, and risks unjustifiably infringing the privacy rights of people living with HIV.
Human Rights Watch is concerned that term "disability" or "appears incapable of giving consent" are vague and overbroad and should be qualified. We suggest that "disability" be changed to "disability that makes it impossible for him or her to give informed consent." In the case of someone who "appears incapable of giving consent," we recommend that a procedure be put in place to establish whether in fact that person can give consent, including an assessment of capacity to consent.
Deliberate or Negligent Transmission of HIV
The draft provision penalizes "deliberate or negligent" transmission in two places. The section on health makes it offence to "deliberately or negligently" do "any act which is, and which he knows or has reason to believe to be likely to spread the infection of HIV and AIDS." The section on "deliberate transmission and exposure to HIV infection" similarly penalizes "any person who deliberately or negligently does an act or omission that he knows or has reason to believe to be likely to spread the infection of another person with HIV."
Human Rights Watch notes that these provisions, as drafted, are overbroad and are inconsistent with international guidance on HIV/AIDS and human rights. The International Guidelines on HIV/AIDS and human rights recommend that "[c]criminal and/or public health legislation should not include specific offences against the deliberate and intentional transmission of HIV but rather should apply general criminal offences to these exceptional cases. Such application should ensure that the elements of foreseeability, intent, causality and consent are clearly and legally established to support a guilty verdict and harsher penalties."
There is no evidence that using the criminal law to respond to HIV is effective in protecting public health, and some evidence that it may in fact cause harm. Criminalizing transmission may deter people from getting tested, since ignorance of HIV status may be a defense. This, in turn, deters people from getting tested, and if they don't know their HIV status, they can't take steps to obtain treatment, care, and support, and keep from infecting others. In addition, criminalizing HIV transmission may also keep people from disclosing their HIV status to health care providers and other health professionals for fear it may be used against them in the criminal justice system.
There is also scant evidence that criminalization is effective in meeting justice objectives. Moreover, criminalisation threatens fundamental human rights of people living with HIV and populations whose marginalized status makes it difficult to seek or receive HIV information or services.
It should also be noted that there are practical difficulties with using the criminal law to prevent HIV transmission: a significant percentage of those living with HIV are unaware of their HIV status and can therefore not be held liable for HIV transmission. There is also the difficulty-if not impossibility-of proving HIV transmission due to a specific, or series, of potential exposures. Furthermore, the existence of HIV transmission criminalization laws may impede efforts to promote disclosure to children and youth of their HIV-positive status or voluntary HIV testing, to reduce stigma and prevent discrimination, and to provide broader legal protection for individuals living with HIV.
Finally, the law is likely to have a greater impact on women and girls than on their male counterparts. The law may be used against women if they are deemed not to conform with appropriate sexual behavior for women, and women-even if they are aware of their HIV serostatus-are often unable to negotiate the use of HIV prevention methods and are vulnerable to being forced into unprotected sex as a result of violence, or threats of violence.
We thank you for the opportunity to offer comments on the proposed Sexual Offences Bill and hope that our submission will be of assistance in consideration of this important legislation.
Joseph Amon PhD, MSPH
Director, Health and Human Rights Program
Director, Women's Rights Division
Acting Executive Director, Africa Division
Cc: Chizaso Nyirongo, Assistant Chief Law Reform Officer
William Yakuwawa Msiska, Assistant Chief Law Reform Officer
 See also, Human Rights Watch, "Policy Paralysis: A Call for Action on HIV/AIDS-Related Human Rights Abuses against Women and Girls in Africa," 2003 (based on documentation of HIV/AIDS-related human rights abuses against women and girls in eight sub-Saharan countries).
 UNAIDS, "UNAIDS Policy Statement on HIV Testing," June 2004; see also Office of the United Nations High Commissioner for Human Rights and the Joint United Nations Programme on HIV/AIDS, HIV/AIDS and Human Rights International Guidelines (Geneva: UNAIDS, 1998), U.N. Doc. HR/PUB/98/1, para. 20(b).
 International Guidelines on HIV/AIDS and Human Rights, guideline 4.
 See Scott Burris, et al., Do Criminal Laws Influence HIV Risk Behavior? An Empirical Trial, 39 Ariz. St. L.J. 467 (2007).
 See, generally, Matthew Weait Intimacy and Responsibility: the Criminalisation of HIV Transmission Abingdon: Routledge-Cavendish (2007) and Lawrence O, Gostin, LO) The AIDS Pandemic: Complacency, Injustice, and Unfulfilled Expectations University of North Carolina Press (2004).