Malawi

Last updated on: 23 May 2015

Criminalisation of HIV transmission/exposure

Malawi
Whether Specific law enacted: 
-
Number of people prosecuted: 
-
Number of people convicted: 
-
Applicable law: 

An HIV Bill for Malawi is currently being developed.

Key wording in the law: 

Not yet available.

Key Cases: 

NEWS: http://www.southernafricalitigationcentre.org/2015/05/20/malawi-high-court-rules-that-mandatory-hiv-testing-is-unconstitutional/

The attitudes displayed by police towards alleged sex workers also extend to how some policy-makers view sex workers in Malawi. The HIV and AIDS (Prevention and Management) Bill of 2013, currently prohibits compulsory HIV testing, but allows forced HIV testing for specific groups of people, including commercial sex workers. In contrast, this case highlights the human rights violations caused by mandatory HIV testing and the importance of having legislation which prohibits this. This is an important message at a time when the Malawi government engages in final deliberations on the proposed Bill.

 

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 a new 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'. 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.

Survey respondents/Organisations working on HIV and the Law: 

National Association of People Living with HIV/AIDS in Malawi - NAPHAM, +265 1 254 452, +265 1 770 641, napham@malawi.net Contact: Mr. Mphande

Further reading: 

An article in PlusNews (1 February 2005) discusses the development of a law on criminalisation in Malawi.
The Canadian HIV/AIDS Legal Network provided comments and input to the HIV/AIDS Law Commission in Malawi. Download on this website.
AIDS Portal for Malawi

Other laws and policies with an impact on responses to HIV

Laws and regulations relating to entry, stay or residence in the country: 

There are no restrictions for people with HIV/AIDS. There are no specific legal regulations concerning people with AIDS.
Neither a medical certificate nor an HIV test result is required when entering the country. Foreigners with a known HIV infection are not subject to specific residence regulations. There are no regulations regarding the control, deportation or expulsion of those concerned.
Vaccination certificates are checked at entry (yellow fever).
Antiretroviral medication can be carried for personal use. It is recommended to carry a doctor’s prescription in English, stating that the drugs are prescribed for personal use.
Travellers are required to carry evidence of a yellow fever vaccination.

For updated information, please go to: http://www.hivrestrictions.org

Laws relating to same sex, sexual relations: 

Male to Male relationships: Not Legal

Punishments for male to male relationships: Imprisonment of 10 years or more

Female to Female Relationships: Legal

Marriage and Substitutes for Marriage: No law

For updated information, please go to: http://ilga.org

Protective laws and policies for people living with HIV: 

Yes