Togo

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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

Africa’s criminal HIV transmission laws are highly inefficient, says Justice Michael Kirby

16 Jul 2008
Australia’s most eloquent and insightful High Court judge, Justice Michael Kirby, spoke at the International Criminal Law Reform conference in Dublin yesterday, arguing that the move to criminalise HIV transmission in sub-Saharan countries such as Benin, Guinea, Guinea-Bissau, Mali, Niger, … More

Last reviewed 01 June 2017

Specific laws

Specific law enacted Yes

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

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 4

Convictions

Number of convictions 2

Laws

Applicable laws

La Loi 2005-012 du 14-12-05

Applicable key wording

CHAPTER VII - PENAL PROVISIONS
Article 53 : Are regarded as crimes : - the doubtful medical practices as regards the HIV/AIDS which cause a serious disability. - the sexual intercourse not protected with the aim of transmit the virus or any other activity of voluntary propagation of the virus.
Article 54. The non-observance of the provisions of subparagraphs 1 and 3 of article 11 above, exposes the authors to two (02) months to three (03) years of imprisonment and a fine of fifty thousand (50.000) to five hundred thousand (500.000) francs CFA without prejudice of the civil proceedings and disciplinary likely to be filed against them.

Discussion

It has been pointed out by the Canadian HIV/AIDS legal network that :
Legal Article 50 of the Togolese law provides for periodic mandatory testing of sex workers for HIV and sexually transmitted diseases

That it is one of the few countries that has adopted a version of  ‘the model law' which provides some guidance as to the requisite mental element in establishing criminal guilt: Article 53 of this law says that it is a criminal offence for a person to have “unprotected sexual relations with the intention of transmitting the virus or any other activity to wilfully spread the virus.”

We are indebted to the article ‘Legislation contagion: the spread of
problematic new HIV laws in Western Africa’ of the Canadian HIV/AIDS Legal Network in their HIV/AIDS Policy & Law Review of December 2007.

The Legislation in  Togo is in direct response of criminalization legislation in the aftermath of the Action for West Africa Region HIV/AIDS Project (AWARE-HIV/AIDS) meeting in N’djamena, Chad in 2004.

As part of the meeting, West African parliamentarians drafted what is now known as the N'djamena African Model Law. The law contains some protections, including the guarantee of pre- and post-natal counselling and the right to health care services, but features several troubling provisions. The N'djamena model broadly requires HIV-status disclosure to a "spouse or regular sexual partner" within six weeks of diagnosis and permits mandatory testing of pregnant women, rape victims, and when necessary to "solve a marital dispute."

The N'djamena law also creates the vague offence of wilful transmission pertaining to those who transmit the virus "through any means with full knowledge of their HIV-positive status" - a parameter broad enough to include mother-to-child-transmission. The law does not, however, distinguish between those who intend to do harm and those whose behaviour can be categorized as reckless or negligent, raising particular questions about the culpability of individuals who might not be aware that they are HIV positive.

Further reading

Human rights analysis of the N'Djamena model law in Togo.
UNAIDS recommendations for the N'Dajamena model law:
Article on HIV laws in Western Africa by the Canadian HIV/AIDS Legal Network

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

Last reviewed 01 June 2017

Last reviewed 01 June 2017

Last reviewed 01 June 2017