Sierra Leone

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Africa: HIV Laws Do More Harm Than Good by Miriam Mannak (IPS)

06 Aug 2009
I received an email last week from Miriam Mannak, a freelance writer based in Cape Town, South Africa who keeps on blog on AIDS in Africa. She recently contributed this excellent piece on the spectre of criminalisation on her continent … 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

Laws

Applicable laws

THE PREVENTION AND CONTROL OF HIV AND AIDS ACT, 2007

Applicable key wording

PART V – TRANSMISSION OF HIV
21. (1) A person who is and who is aware of being infected with HIV or is carrying and is aware of carrying the virus shall–
(a) take all reasonable measures and precautions to prevent the transmission of HIV to others and in the case of a pregnant woman, the foetus; and
(b) inform, in advance, any sexual contact or person with whom needles are shared, of that fact.
(2) Any person who is and is aware of being infected with HIV or is carrying and is aware of carrying HIV antibodies shall not knowingly or recklessly place another person, and in the case of a pregnant women, the foetus, at risk of becoming infected with HIV, unless that other person knew that fact and voluntarily accepted the risk of being infected with HIV.
(3) Any person who contravenes subsection (1) or (2) commits an offence and is liable on conviction to a fine not exceeding five million leones or to a term of imprisonment not exceeding seven years or to both the fine and imprisonment.
(4) A person referred to in subsection (1) or (2) may request any medical practitioner or any other person approved by the Minister under section 13, to inform and counsel a sexual partner of the HIV status of the person.
(5) A request under subsection (4) shall be in the prescribed form.
(6) On receipt of a request made under subsection (4), the medical practitioner or approved person shall, whenever possible, comply with the request in person.
(7) A medical practitioner who is responsible for the treatment of a person and who becomes aware that the person has not, after reasonable opportunity to do so–
(a) complied with subsection (1) or (2); or
(b) made a request under subsection (4), may inform any sexual partner of that person, of the HIV status of that person.
(8) Any medical practitioner or approved person who informs a sexual partner as provided in subsection (6) or (7) shall not, by reason only of that action, be in breach of this Act.

Discussion

From the information gathered, it appears that no one has yet to be prosecuted for transmitting HIV in Sierra Leone.
Sierra Leone was in the second tier of countries to introduce specific HIV specific legislation following the N’djamena Model Law (see other issues below).
The law in Sierra Leone has received media attention and criticism from Human Rights activists  for the provisions which criminalise not only actual transmission of HIV from mother to child – but makes a criminal of any pregnant woman who knows she has HIV but does not take reasonable measures to prevent transmission to her baby.
The Act also places a duty on medical practitioners to disclose the HIV-status of their patients to partners where the patients have not done so within the reasonable period that is prescribed.
The Legislation in Sierra Leone 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 200
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

Analysis of N'Djamena model legislation by the Canadian HIV/AIDS Legal Network

Last reviewed 01 June 2017

Last reviewed 01 June 2017

Last reviewed 01 June 2017