Nigeria

Last updated on: 16 June 2015

Criminalisation of HIV transmission/exposure

Nigeria
Whether Specific law enacted: 
No at national level, yes in three States. UPDATE as of June 3 2015 : A new law was passed Yesterday, Wednesday, June 3, the Sexual Offences Bill, sponsored by Senator Christiana Anyanwu, was passed into law by the Nigerian Senate.it is not clear whether this law will take precedence over the current law applicable to the three states
Number of people prosecuted: 
-
Number of people convicted: 
-
Applicable law: 

Update as of June 3 2015 A new country wide law has been passed - with  a number of problematic provisions relating to “HIV or any other life threatening sexually transmitted disease(s)” that were added between the 2012 draft and the 2013 draft that became law on June 3, notably:

  • Section 26 (Deliberate transmission of HIV or any other life threatening sexually transmitted disease) and
  • Section 43 (Intentional and unlawful acts)

Section 43 is actually much more of a concern, as it essentially frames non-disclosure of HIV (or any other ‘life-threatening STI, including, potentially, ebola) as sexual assault, because it is seen as fraud vitiating consent to otherwise consensual sex.

43. (1) An act is intentional and unlawful if it is committed. b) under false pretences or by fraudulent means.

(3) False pretences or fraudulent means, referred to in sub-section (2) (b), include circumstances where a person
(c) intentionally fails to disclose to the person in respect of whom an act which causes penetration is being committed, that he or she is infected by HIV or any other life-threatening sexual transmissible disease.

- See more at: http://www.hivjustice.net/news/nigeria-senate-passes-law-criminalising-hiv-non-disclosure-exposure-and-transmission-with-vague-and-overly-broad-statutes-in-the-sexual-offences-bill/#sthash.3tj7mjyk.dpuf

  Up until June 3rd there was no is no nation-wide law though Enugu, Lagos and Cross River states had  passed anti-HIV legislations.

Enugu State of Nigeria: Law No 2- HIV/AIDS Anti-discrimination and Protection Law 2005

Lagos State Government of Nigeria: Law No 17- A Law for the Protection of Persons Living with HIV and Affected by AIDS in Lagos State and for Other Connected Matters of 2007

Cross River State Stigmatization and Discrimination Law No 9, of 2010

Key wording in the law: 

Enugu State - Part IV: Criminal and Correctional Systems Legislation

Transmission and Exposure Offences

12 (1) It shall be considered a criminal offence for someone with etablished knowledge of his/her positive status to willfully and intentionally expose someone else or transmit the virus to another person, or engage in such behaviour or practices that are considered to put others at risk of HIV infection
(2) Nothwithstanding existing criminal, public and mental health laws, one shall be guilty of engaging in risky behaviour capable of willfully and intentionally transmitting HIV if he/she engages in intentional unprotected sex, attempts murder, assult, battery, unlawfully causing bodily harm, engaging in dangerous acts, use of noxious things and other such acts considered to constitute public nuisance
(3) Nothwithstanding criminal laws existing on sexual offences, anyone who coerces or engages in sexual intercourse with another person without the consent of the latter, or if such consent is obtained under force threat, fear, impersonation or offer of inducements whereby the victim is exposed to risk of transmission of HIV the perpetrator of the act shall be liable to compensate the victim to the tone of =N=200,000 if prove of infection is provided.
(4) Any partner in marriage has the right to secure divorce in a situation where he/she considers himself/herself at risk of being infected by an HIV positive partner who refuses to consent or practice safer sex, especially the consistent use of condoms.
(5) HIV -positive individuals shall not be prohibited from having sex or marrying anyone of their choice, provided the latter's consent is obtained by his/her partner either voliuntarily or on demand of his/her HIV positive status, the protection of the formers right to privacy notwithstanding
(6) Where an HIV - positive person is taken a preventive measure and such measure fails such as the case of a broken condom, resulting in the infection of his/her sexual partner, the former shall not be guilty of willful transmission if he/she obtained consent of the latter to having sex, and the latter was informed of the positive status of the former.
(7) Anyone charged with the above offences on transmission and exposure of HIV infection shall have the right to put up defence. Nothwithstanding, consent shall not be considered a defence for willful or intensional transmission or exposure to HIV infection if such consent was not “informed” by the disclosure of the status of the HIV positive individual to the consenting party

Lagos State - Section 18 Offences and Penalties
(1) Any Person who willfully or knowingly endangers other persons by infecting them with the AIDS virus, commits an offence and shall be liable on conviction to a fine not exceeding Two Hundred Thousand Naira only (N200,000) or imprisonment not exceeding ten years (10 years) or both fine and imprisonment.

Key Cases: 

 

Discussion: 

From the information gathered, deliberate transmission of HIV to another has not been prosecuted in Nigeria so far. Pockets of HIV criminalization laws are emerging from the States of the Federation. Presently, there is an anti-stigmatization and discrimination bill before the National Assembly. This bill, supported by the National Agency for the Control of AIDS in Nigeria and Civil Society Groups, seeks to stop stigma and discrimination against persons living with HIV in Nigeria and by extension to address the wave of criminalization laws emeging from the States.

In February 2013, NEPWHAN and other civil society advocates were successful in arguing for the removal of an HIV-specific criminal statute from the draft HIV and AIDS Anti-Discrimination Bill, assisted in their advocacy by data obtained from the HIV Criminalisation Scan report.  

Source: African HIV criminalisation achievements and challenges highlighted at ICASA 2013 - See more at: http://www.hivjustice.net/news/african-hiv-criminalisation-achievements-and-challenges-highlighted-at-icasa-2013/#sthash.dqhtvjZ2.dpuf

The Enugu State of Nigeria: Law No 2 - HIV/AIDS Anti-discrimination and Protection Law 2005 also provided for transmission of infections through the use of needles that does not follow standard infection control procedure.

Athough this law recognises consent, however, it forcloses consent as defence for willful or intentional transmission of or exposure to infection if such consent was not “informed” by the disclosure of the stauts of the HIV positive individual to the consenting party.

Lagos State: The Law seeks to protect the rights of persons living with or affected by AIDS in Lagos by providing for access to health care, HCT, establishment of anti-retroviral drugs fund, provision of universal precautions for health care workers and forbids discrimination against persons living with HIV in Workplaces, housing and society. However, it still went ahead to provide for punishment for any person who willful or knowingly endangers other persons by infecting them with the HIV virus.

Senate passes law criminalising HIV non-disclosure, exposure and transmission with vague and overly broad statutes in the Sexual Offences Bill 

June 3, the Sexual Offences Bill, sponsored by Senator Christiana Anyanwu, was passed into law by the Nigerian Senate.

The new law contains a number of problematic provisions relating to “HIV or any other life threatening sexually transmitted disease(s)” that were added between the 2012 draft and the 2013 draft that became law yesterday,

See more at: http://www.hivjustice.net/news/nigeria-senate-passes-law-criminalising-hiv-non-disclosure-exposure-and-transmission-with-vague-and-overly-broad-statutes-in-the-sexual-offences-bill/

Survey respondents/Organisations working on HIV and the Law: 

Association of Women Living with HIV/AIDS in Nigeria

Journalists Against AIDS, Nigeria

Association of Positive Youths Living with HIV/AIDS

Center for the Right to Health

Civil Society for HIV/AIDS in Nigeria

National Agency for Control of AIDS

Association of Religious Leaders Living with HIVand AIDS

Network of People Living with HIV and AIDS in Nigeria - (Not part of respondents)
 

Further reading: 

The African Charter on Human and Peoples Rights (Enforcement and Ratification) Laws Cap 10 Laws of the Federation

AIDS in Nigeria: A Nation on the Threshood, Harvard Center for Population and Development Studies (2006) www.apin.harvard.edu

Federal Ministry of Health (Nigeria) National HIV/AIDS and Reproductive Health Survey, 2007 (NARHS plus) Federal Ministry of Health Abuja, Nigeria

The website of Journalists against AIDS Nigeria (Check archives)

Other laws and policies with an impact on responses to HIV

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

In Nigeria, there are no specific entry regulations for people living with HIV and AIDS. An HIV test result is not required when entering the country. Foreigners with a known HIV infection are not subject to specific residence regulations.

Some HIV/AIDS entry restrictions exist for visitors to and foreign residents of Nigeria. Nigerian authorities have the discretion to deny entry to foreigners who are “undesirable for medical reasons” and may require HIV tests for foreigners marrying Nigerian citizens. Please verify this information with the Embassy of Nigeria before you travel.

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: Death

Female to Female Relationships: Legal only in some areas

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: 

No