Malawi

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Africa: Moving towards revolutionising approaches to HIV criminalisation

29 Jun 2017
“We have all agreed with the Sustainable Development Goal of ending HIV and Tuberculosis by 2030. We cannot get there while we are arresting the same people we are supposed to ensure are accessing treatment and living positively,” said Dr … More

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

Last reviewed 01 June 2017

Country overview

A HIV bill is currently being developed. Proposed HIV and AIDS Management Bill, 2013 - §43 "A person who deliberately or recklessly infects another person with HIV commits an act of grievous harm."

Penal Code – Section 192 states that ‘any person who unlawfully or negligently commits 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, shall be guilty of a misdemeanor.’ 

Specific laws

Specific law enacted No

Specific law criminalising HIV non disclosure, exposure, or transmission: No

Prosecuted using non-HIV specific laws: No

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 11

Section 192 was used in 2009 to prosecute eleven women who were presumed to be sex workers and who were tested for HIV without their knowledge or consent. In 2015, mandatory HIV testing was found to be unconstitutional. Their sentences are currently under review.

Laws

Applicable laws

Malawi Penal Code of 1930, Chapter 7:01 Section 192 Negligent act likely to spread disease dangerous to life. http://www.malawilii.org/mw/consolidated_legislation/701

A HIV bill is is being proposed, the HIV and AIDS Management Bill, 2013 - §43.


Applicable key wording

Malawi Penal Code of 1930, Chapter 7:01 Section 192 Negligent act likely to spread disease dangerous to life: any person who unlawfully or negligently commits 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, shall be guilty of a misdemeanor.’ 

The proposed HIV and AIDS Management Bill contains a number of problematic provisions including mandatory testing of sex workers (but this is no longer proposed for pregnant women). It also makes HIV transmission a more serious criminal act than provided for in Section 192. However, defences would include non-disclosure due to reasonable fear of consequences; reasonable measures to reduce the risk of infection; or a previously agreed mutually acceptable risk.

Discussion

From the information received from NAPHAM it appears that no one has yet been charged with transmitting HIV to another person.
However, there is provision in the proposed HIV and AIDS Management Bill for such a charge to be made. The Bill mentions both intentional and unintentional transmission. It was suggested by NAPHAN that a person will not be able to consent to being infected with HIV. NAPHAN also mentioned that there have been media reports of cases of rape and /or defilement where HIV has also been transmitted. This has led to the defendants receiving steeper sentences.

As a member of the SADC region, Malawi will be affected by the ‘Model Law, 2008'. To provide specific guidance to Members of Parliament, Ministers, of SADC countries on the complex process of HIV legislation, the SADC Parliamentary Forum, a consultative and advisory intergovernmental organization of national Parliaments in SADC countries, with the technical assistance of the AIDS and Human Rights Research Unit and the involvement of various stakeholders and regional civil society groups, has developed a model law on HIV to serve that purpose. The Model Law integrates the protection of human rights as a key element of an effective response to HIV. The Model Law has no provisions allowing criminalisation. (see Further Reading).

In 2015, the SADC region the parliamentary forum adopted a  motion on HIV criminalization (see Further Reading: Edwin J Bernard and Sally Cameron (2016). Advancing HIV Justice 2: Building momentum in global advocacy against HIV criminalisation.) Key agencies and members of parliament from across southern Africa came together in Botswana in May 2015 to interrogate HIV criminalisation in the Southern African Development Community (SADC) region. Convened by the AIDS and Rights Alliance for Southern Africa (ARASA) and the SADC Parliamentary Forum’s Human and Social Development and Special Programmes Standing Committee, it was attended by parliamentarians from Botswana, Democratic Republic of Congo, Lesotho, Malawi, Namibia, Seychelles, South Africa, Swaziland, Tanzania, Zambia and Zimbabwe. (See Further Reading: ARASA Facebook page. 27 May 2015).

The meeting included expert presentations on the latest science and evidence-based thinking to educate parliamentarians so that they may lead, advocate and legislate on the basis of evidence rather than emotions. (See Further Reading: ARASA. ARASA and SADC PF Human and Social Development and Special Programmes Regional Standing Committee Meeting on Criminalisation of HIV exposure and transmission. 27 May 2015).

In November 2015, the Plenary Assembly of the SADC Parliamentary Forum Resolution considered, took note of, and unanimously adopted a motion on HIV criminalisation, moved by Hon. Duma Boko of Botswana and seconded by Hon. Dr. Emamam Immam of South Africa. Members expressed concern that specific laws on HIV transmission, exposure and non-disclosure may not only be harmful to successful HIV prevention and care but may also infringe on human rights. The motion reaffirmed the obligations on SADC Member States to respect, protect, fulfil and promote human rights in all endeavours undertaken for the prevention and treatment of HIV; reiterated the critical role of Parliamentarians in enacting laws that support evidence-based HIV prevention and treatment interventions that conform with regional and international human rights frameworks; and called on Member States to consider rescinding and reviewing punitive laws specific to the prosecution of HIV transmission, exposure and non-disclosure. (See Further Reading: 7.3 Motion on Criminalisation of HIV Transmission, Exposure and Non-Disclosure in SADC Member States. Parliament of Zimbabwe Hansard. Tuesday, 1st March, 2016).

Further reading

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

Latest cases and news can be found at: http://www.hivjustice.net/site/news/?country=135&from-month=-1&from-year=-1&to-month=-1&to-year=-1

Malawi Penal Code of 1930, Chapter 7:01 Section 192 Negligent act likely to spread disease dangerous to life. http://www.malawilii.org/mw/consolidated_legislation/701

7.3 Motion on Criminalisation of HIV Transmission, Exposure and Non-Disclosure in SADC Member States. Parliament of Zimbabwe Hansard. Tuesday, 1st March, 2016. www.parlzim.gov.zw/senate-hansard/senate-hansard-01-march-2016-vol-25-no-29

Malawi High Court rules that mandatory HIV testing is unconstitutional. Southern Africa Litigation Centre Blog, 20 May, 2015. http://www.southernafricalitigationcentre.org/2015/05/20/malawi-high-court-rules-that-mandatory-hiv-testing-is-unconstitutional/

ARASA Facebook page. 27 May 2015. https://www.facebook.com/AIDSandRightsAllianceforSouthernAfrica/photos/a.10153284189602305.1073741835.45271732304/10153284189502305/?type=1&theater

ARASA (2015). ARASA and SADC PF Human and Social Development and Special Programmes Regional Standing Committee Meeting on Criminalisation of HIV exposure and transmission. 27 May 2015. http://www.arasa.info/news/arasa-and-sadc-pf-human-and-social-development-and-special-programmes-regional-standing-committee-meeting-criminalisation-hiv-ex/

Malawi: 'Hiv & Aids Bill Not Ready for Presentation to Parliament'. Joseph Mwale, Malawi News Agency, 4 September 2014. http://allafrica.com/stories/201409041390.html

Canadian HIV/AIDS Legal Network, International Community of Woman Living with HIV/AIDS, and Global Network of Sex Work Projects (2010). Comments on the Report of the Law Commission of Malawi on the Development of HIV and AIDS Legislation. May 31, 2010. http://www.aidslaw.ca/site/comments-on-the-report-of-the-law-commission-of-malawi-on-the-development-of-hiv-and-aids-legislation/?lang=en

Human Rights Watch (2008). Comments to the Malawi Law Commission on the development of HIV and AIDS Legislation. June 23, 2008. https://www.hrw.org/news/2008/06/23/comments-malawi-law-commission-development-hiv-and-aids-legislation

Southern African Development Community (SADC) Parliamentary Forum, HIV and AIDS Programme (2008). Model law on HIV in Southern Africa. http://www.sadcpf.org/hiv/index.php?option=com_docman&task=cat_view&gid=67&limit=5&limitstart=0&order=date&dir=ASC&Itemid=137

Possible criminalisation of wilful HIV infection. IRIN News. Johannesburg, 1 February 2005. http://www.irinnews.org/news/2005/02/01/possible-criminalisation-wilful-hiv-infection

Cases

Overview

Section 192 was used in 2009 to prosecute eleven women who were presumed to be sex workers and who were tested for HIV without their knowledge or consent. In 2015, mandatory HIV testing was found to be unconstitutional. Their sentences are currently under review. Lawyers for Human Rights, Southern Africa Litigation Centre and Open Society Initiative for Southern Africa challenged the mandatory testing and prosecution of the eleven women on the grounds of being unreasonable and a violation of their rights to privacy, equality, dignity and freedom from cruel, inhuman and degrading treatment. Blantyre High Court found in their favour. Civil society supported by UNDP and UNAIDS recommended against language on HIV criminalisation and mandatory testing for pregnant women in proposed HIV and AIDS Management Bill. Draft law revised multiple times (see Further Reading).

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Last reviewed 01 June 2017

Last reviewed 01 June 2017

Last reviewed 01 June 2017