Botswana

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African HIV criminalisation achievements and challenges highlighted at ICASA 2013

11 Dec 2013
The African continent has more countries with overly broad and vague HIV-specific laws relating to HIV non-disclosure, exposure and/or transmission than any other global region, nearly all of which have been enacted in the past decade. Although North America is … More

Botswana’s draconian Public Health Bill approved by Parliament, BONELA will challenge it as unconstitutional once President signs into law (Update 3)

05 Apr 2013
Update: April 5th 2013 Very disappointing news from Botswana. The Public Health Bill – including all of its draconian provisions on HIV – has been approved by Parliament. BONELA issued this press release last week just prior to the vote. … More

Botswana: Proposed Public Health Bill goes against HIV programming best practice

11 Dec 2012
Guest blog by Christine Stegling, Associate Director, Best Practice, and Senior Human Rights Adviser, International HIV/AIDS Alliance. Reposted with permission from the International HIV/AIDS Alliance. Late last week, and by all accounts with no previous public debate or discussion with … More

Africa: PlusNews publishes in-depth analysis of criminalisation throughout the continent

09 Dec 2008
PlusNews, the global online HIV and AIDS news service of the United Nations Integrated Regional Information Networks (IRIN), has published an excellent in-depth analysis of criminalisation in Africa. A collection of short articles focusing on various aspects of criminalisation in … More

Botswana: Judge acquits lawyer accused of HIV exposure

02 Jul 2008
A Botswanan judge has acquitted an HIV-positive lawyer who was accused of HIV exposure primarily due to the fact that Botswana does not have criminal HIV exposure or transmission laws. The case rested on whether the man, who had sex … More

Botswana: Belief that many are deliberately transmitting HIV fuels calls for criminal HIV transmission laws

07 Jan 2008
Those That Sow HIV Deserve Prison Voice journalist Naledi Mokgwathi, recently went out onto the streets of Gaborone to find out what B0tswanans think about the issue. “People should be forced to test at intervals so that when someone accuses … More

Botswana: Lawyer on trial for sexual HIV exposure

03 Dec 2007
HIV/AIDs infection case resumesGABORONE- A case in which a state lawyer is accused of spreading HIV to another person resumed at the village magistrate court with the complainant giving evidence. According to the charge sheet, on July 7, at Ledumadumane … More

Botswana: MPs consider criminalising HIV transmission

16 Oct 2007
Criminalising HIV transmission sparks debate LOBATSE – The issue of criminalising intentional transmission of HIV received mixed reaction from residents of Lobatse and surrounding areas. While some accepted the idea of making intentional spread the disease a criminal offence, others … More

Last reviewed 01 June 2017

Specific laws

Specific law enacted Yes

Public Health Act, 2013 – Clause 116 (1)

Specific law criminalising HIV non disclosure, exposure, or transmission: Yes

Prosecuted using non-HIV specific laws: Yes

Prosecuted using both specific and non specific laws: No

Is non-disclosure actionable: No

Is exposure actionable: No

Is transmission actionable: No

Prosecutions

Number of prosecutions 2

Laws

Applicable laws

Public Health Act 2013

Penal Code (Amendment) Act 5 of 1998

Applicable key wording

Public Health Act, 2013, Section 116(1) provides that a person who is aware of being HIV positive shall inform, in advance, any sexual contact or care-giver or person with whom sharp instruments are shared. Prosecution is possible for placing another at risk.

Section 116(1)(a) and (c) requires that a person who is aware of being HIV positive take all reasonable measures and precautions to prevent transmission of HIV to others and not place another person at risk of becoming infected with HIV. Defences include taking “reasonable measures and precautions” and disclosure in advance any sexual contact or care giver or person with whom sharp instruments are shared.

Section 116(9) allows a Director in writing to apply to a magistrate for an order, where the Director reasonably believes that a person with HIV “knowingly or recklessly places another person at risk of becoming infected with HIV without the knowledge of that person of the infected person’s HIV status.” Section 116(10) then allows the magistrate to order that such person with HIV undergoes medical and psychological assessment; to impose restrictions on the behaviour or movement of that person for a period of up to 28 days; or to isolate and detain that person for up to 28 days. The period of detention of 28 days may be renewed.

Penal Code (Amendment) Act 5 of 1998, Section 184. Spreading infection

Any person who unlawfully or negligently does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, is guilty of an offence.


Discussion

Prior to 2013, when the Public Health Act, 2013, Section 116 came into force, there was no specific legislative provisions  to criminalise the transmission of HIV. Plans from 2000 suggesting the introduction of legislation compelling HIV- positive people to disclose their status to their sexual were never acted on. In 2012-13, civil society advocacy led by the Botswana Network on Ethics, Law and HIV/AIDS (BONELA) resulted in a postponement of debates on the draft Bill, enabling some politicians to argue that the Bill should be withdrawn altogether. BONELA and a coalition of international organizations sent strong submissions to President Khama. UNAIDS also wrote to the Minister of Health. Despite this, the Bill was passed by Parliament in April 2013 and signed into law by President law by President Khama in September 2013.

Under the Penal Code (Amendment) Act, a person who ‘unlawfully or negligently' does any act which has the likelihood of spreading any ‘disease dangerous to life' is guilty of an offence. A man charged with an offence under the Penal Code (Amendment) Act 5 of 1998 was acquitted in 2008. Dismissing the charges against the defendant, the Chief Magistrate said that the state had failed to prove whether or not a condom was used even though it had been proven that there was unlawful sexual intercourse and that there was no consent from the complainant. The judgement suggested that had the prosecution proved that a condom had not been used, a conviction could have been obtained. The Chief Magistrate also emphasized there is no specific law in Botswana which punishes the deliberate spread of HIV/AIDS that Section 184, under which the defendant was charged is expressed in vague term, covering ‘any other dangerous disease to life'. Note that Public Health Act, 2013, Section 116 changed this by introducing a HIV specific law.

Note further that under the Penal Code, punishments for Rape and Defilement of persons under 16 years of a defendant who is found to be HIV- positive are aggravated whether or not the defendant was aware of their HIV-positive status. 

Section 142. Punishment for rape

(1) Any person who is charged with the offence of rape shall (....)

(ii) subject to subsections 2 and 4, upon conviction be sentenced to a minimum term of 10 years' imprisonment or to a maximum term of life imprisonment.
(2) Where an act of rape is attended by violence resulting in injury to the victim, the person convicted of the act of rape shall be sentenced to a minimum term of 15 years' imprisonment or to a maximum term of life imprisonment with or without corporal punishment.
(3) Any person convicted of the offence of rape shall be required to undergo a HIV test before he is sentenced by the court.
(4) Any person who is convicted under subsection 1 or subsection 2 and whose test for the HIV under subsection 3 is positive shall be sentenced
(a) to a minimum term of 15 years' imprisonment or to a maximum term of life imprisonment with corporal punishment, where it is proved that such person was unaware of being HIV positive; or
(b) to a minimum term of 20 years imprisonment or to a maximum term of life imprisonment with corporal punishment, where it is proved that on a balance of probabilities such person was aware of being HIV positive.

Section 147. Defilement of person under 16 years

(1) Any person who unlawfully and carnally knows any person under the age of 16 years is guilty of an offence and on conviction shall be sentenced to a minimum term of 10 years, imprisonment or to a maximum term of life imprisonment.
(2) Any person convicted under subsection 1 shall be required to undergo a HIV test before he is sentenced by the court.
(3) Any person who is convicted under subsection 1 and whose test for the HIV under subsection (2) is positive shall on conviction be sentenced to a
(a) minimum term of 15 years' imprisonment and a maximum term of life imprisonment with or without corporal punishment, where it is proved that such person was unaware of being HIV positive; or
(b) minimum term of 20 years' imprisonment and a maximum term of life imprisonment with or without corporal punishment, where it is proved that on a balance of probabilities such person was aware of being HIV positive.

Further reading

Latest cases and news can be found at: http://www.hivjustice.net/country/bw/

Background information about Botswana on Avert website. http://www.avert.org/aidsbotswana.htm

Edwin J Bernard and Sally Cameron. Advancing HIV Justice 2: Building momentum in global advocacy against HIV criminalisation. HIV Justice Network and GNP+. Brighton/Amsterdam, April 2016. http://www.hivjustice.net/wp-content/uploads/2016/05/AHJ2.final2_.10May2016.pdf

MP’s says criminalization of HIV transmission not based on evidence in The Sentinel (Official newsletter of the Human & Social Development and Special Programmes of the SADC Parliamentary Forum), Volume 2, 2015. http://sadcpf.org/index.php?option=com_docman&task=doc_download&gid=77&Itemid=115

Southern Africa Litigation Centre (12 February 2013). Comments on the Botswana Public Health Bill 23 of 2012. http://www.transplant-observatory.org/SiteCollectionDocuments/afrlegethBWA1.pdf

Cases

Overview

In 2008, a man charged under the Penal Code (Amendment) Act 5 of 1998 was acquitted of HIV exposure due to lack of a HIV specific law. 

In October 2013, a Zimbabwean woman was charged under the Public Health Act 2013 with ‘deliberate HIV transmission’ for breastfeeding her neighbour’s baby. The outcome of the case is unknown.

Botswana: Woman from Zimbabwe faces ‘deliberate HIV transmission’ charge for breastfeeding neighbour’s baby. A Zimbabwean woman who breastfed a neighbour’s baby without her consent faces a possible two-year sentence for deliberately infecting another person with HIV after she tested positive. 39-year-old Annie Mpariwa appeared in a Gaborone court on Wednesday and the case was deferred to October 24 to allow a second HIV test to be done on the toddler. The child’s initial results came out negative. Mpariwa was arrested last week on charges of common nuisance and should the child test positive, the charge will be raised to ‘deliberately infecting another person with HIV’. The mother of the 14-month old baby said seeing her child being breastfed by her neighbour was traumatising. She alleged that her neighbour snatched the child while she was playing outside and hid her in her room. After searching for the child for quite some time, she went and knocked on Mpariwa’s rented room and got no response. Upon peeping through the window, she saw her suckling the little girl. The incident comes in the wake of a newly enacted law on HIV/AIDS that calls for stiffer penalties on people who deliberately infect others with HIV. Source: http://www.hivjustice.net/storify/botswana-woman-from-zimbabwe-faces-deliberate-hiv-transmission-charge-for-breastfeeding-neighbours-baby/#sthash.IcovoS4Y.dpuf

In 2015, BONELA (Botswana Network on Ethics, Law and HIV/AIDS) reported a dramatic rise in people seeking legal advice (as both potential complainants and defendants) since the Public Health Act 2013 was passed.

BONELA. HIV willful transmission [allegations] on the rise. 15 January 2015. http://www.bonela.org/index.php?option=com_k2&view=item&Itemid=223&id=128:15-january-2015

 

Last reviewed 01 June 2017

Last reviewed 01 June 2017

Last reviewed 01 June 2017