One of the key objectives of the Association is to be a watchdog of all the legislation that is discriminatory, oppressive or unconstitutional as regards women and children and ensure that the same is promulgated, amended or repealed in line with internationally accepted standards of human rights. WLA is an organization that is tasked with asking the woman question of legislation and ensuring that laws are created with regard to the lived experiences of women in Malawi. In line with this mandate and objective, WLA has prepared this briefing on specific aspects of the HIV/AIDS (Prevention and Management) Bill No. 12 of 2017 (hereafter referred to as the HIV Bill).

The 2017 HIV and AIDS Prevention and Management Bill

The HIV Bill developed by the Special Law Commission in 2007 seeks to introduce a comprehensive law to regulate the prevention and management of the HIV and AIDS epidemic in Malawi. Further, the HIV Bill provides for the institutional framework for effective regulation of the prevention and management efforts including the establishment, powers and functions of the National AIDS Commission. The HIV Bill takes a multi-dimensional approach by combining public health, human rights and criminal law issues. The Bill, further, seeks to balance rights and obligations of people infected and affected by HIV and AIDS on the one hand and obligations of the State to protect the public at large from the epidemic on the other.[i] Since the time it was developed, the HIV Bill has only been tabled in Parliament this very year.

HIV and AIDS in Malawi

Malawi’s HIV prevalence is one of the highest in the world, with 10.6% of the adult population (aged 15-64) living with HIV. Malawi accounts for 4% of the total number of people living with HIV in sub-Saharan Africa. An estimated 980,000 Malawians were living with HIV in 2015 and 27,000 Malawians died from HIV-related illnesses in the same year.3 The Malawian HIV epidemic plays a critical role in the country’s low life expectancy of just 57 years for men and 60 years for women. Over the last decade, impressive efforts to reduce the HIV epidemic have been made at both national and local levels. New infections have dramatically declined from 98,000 new infections in 2005, to 28,000 new infections in 2015/2016. Malawi has also witnessed a reduction in children acquiring HIV, with New 4,800 new infections in 2015, a decline from 16,000 in 2010.[ii]

In Malawi, the bulk of all new HIV infections occur through unprotected heterosexual intercourse. HIV infection rates show gender, age, social status and geographical variations, with infection more prevalent in women than men, urban than rural populations, and in the Southern region compared to the rest of the regions.

The“woman” concerns raised by the HIV Bill

The HIV Bill comes at a time when there has been significant research and writings on the possible role that the law can play in the HIV/AIDS pandemic. Regionally there have been initiatives such as the SADC Model Law on HIV in Southern Africa.[iii] There have been many contributions made on the draft HIV and AIDS legislation and the implications of these provisions. One voice that has not been prominent in this discourse and debate is that of Malawian women. This commentary from WLAs has taken the HIV Bill and asked the woman question of several problematic provisions. The “woman question” requires us to interrogate a provision for its implications on the lived experiences of Malawian women. If we are going to legislate HIV and AIDS in Malawi then we need to have a very clear and representative figure at the centre of the debate. So who are we drafting these laws for (be it to protect or prevent)? Who is the face of HIV and AIDS in Malawi? Although the language of the HIV Bill is gender neutral, the realities of the pandemic result in a complete feminization of HIV criminalization.

There is a need to ensure that women’s voices, particularly the voices of women living with HIV, are incorporated in the law-making process.

In its current format, despite the many admirable aspects of the HIV Bill, the provisions that create criminal measures to enforce various HIV management efforts have the effect of infantilizing, criminalizing, stigmatizing and potentially victimizing women – particularly women who are already living with HIV. Rather than being protective and preventive, the law is paternalistic positing women as both victims and vectors of HIV. Yet in reality women living with HIV rarely describe themselves as “victims” when relaying how they became infected, and the language of vectors is especially harmful for those most marginalised members of society such as female sex workers. The HIV Bill both demonizes and infantilizes women, they are painted as carriers of the disease but also  as potentially careless and callous mothers; and women of loose morals. This in a country where more than half of the women are married before the age of 18, and it is within these relationships (oftentimes violent relationships and a product of harmful cultural practices) that they either become infected or learn of their infection. In this manner, lives that are already filled with violence are suddenly even more fraught with danger.

WLA’s Stance on the Criminalization of HIV Transmission in the HIV Bill

There are clear public health implications to a pandemic such as HIV and AIDS and the role that the government opts to play in the management of the pandemic has a severe impact on the course of the disease. Legislation can be used to set out the manner in which issues such as voluntary counselling and testing; partner notification; medical care and treatment of AIDS related illnesses; and, epidemiological surveillance amongst other things are handled. The UNAIDS Handbook for Legislators on HIV/AIDS, Law and Human Rights (the Handbook) suggests that laws should require specific informed consent before HIV testing is done for fear of risking violation of a person’s right to both privacy and personal liberty, the Handbook also goes on to stress that targeting specific groups for compulsory testing is in violation of the non-discrimination principle under international human rights law.^[iv]

WLA has noted with consternation that the overly punitive crafting of many of the provisions in the HIV Bill, that were intended to prevent the spread of HIV and AIDS, are instead more likely to lead to disproportionate demonization and vilification of women living with HIV. This in turn will have the regressive effect of encouraging rather than preventing the spread of HIV and forcing those living with the virus to turn away from the lifesaving services that have had a real impact on the pandemic in Malawi so far. This Bill, if it becomes law in its current form, risks destroying many of the gains that we as a country have made in handling HIV by creating criminals out of those most vulnerable to this terrible disease. If knowing your status creates a potential criminal out of you then people will avoid “knowing” their status at all costs.

As a country we need to be clear that reducing the spread of HIV  by reducing stigma and persecuting persons living with HIV cannot coexist, we cannot do both.

Accordingly WLA recommends that the provisions of the draft legislation that exact criminal sanctions on persons living with HIV (PLHIV) be deleted and that the prevention and management efforts of the proposed law be enhanced by provisions that aim at the reduction of stigma and the debunking of dangerous myths about HIV rather than the inadvertent creation and reinforcing of messages that posit PLHIV as devious carriers and spreaders of disease. Specifically WLA recommends that the following articles be entirely removed or drastically amended:

Article 4(2) – that over-broadly prohibits harmful cultural practices;

Analysing this provision it can be construed that all participants in such practices, conceivably adhered to as a matter of tradition, would be in contravention of the law and presumably risk being prosecuted, fined and imprisoned for taking part. The HIV Bill does not make any distinction between perpetrators, participants or accomplices. The very victim that the drafters sought to protect can be prosecuted for their involvement. The provisions on harmful cultural practices appear to be significantly ambiguous and do not include any defences. It is doubtful that the Special Law Commissioners’ intention to eradicate harmful practices that contribute to the spread of HIV and also ‘denigrate women’ are best achieved in the form of a blanket prohibition of established customs. The obvious danger that comes with using criminal sanctions is that these and other ‘harmful practices’ would merely be driven underground

Criminalization of the practices in this purely punitive manner may not automatically achieve that goal. There is no obligation upon the government to provide comprehensive prevention services when it comes to harmful cultural practices; services such as information and education for the targeted social or cultural groups.

Article 18(2)(b) – that requires compulsory testing of Pregnant women and their sexual partners

WLA urges the lawmakers to take a holistic stance that requires the protection of the mother and her human rights, to achieve the protection of the unborn child. Infantilizing the pregnant woman living with HIV by coercing her to undergo testing and take medication presupposes that these are choices she would not make if offered the same. .as if she is nothing but a recalcitrant child that needs to be told what to do, when to do it and why to do it despite herself. This legislation sets in stone a paternalistic approach that makes women out to be able to make good decisions about their health and that of their unborn child.

The truth is that most women WANT to protect their babies, they want to have their babies born HIV free, they WANT to live.

Attaching a criminal sanction or coercive requirement does not promote a healthier outcome for the woman and her baby, rather it devalues the life of the mother living with HIV in favour of a baby born HIV-free.

The WHO and UNAIDS have explicitly rejected compulsory HIV testing as part of the process for validation of the elimination of mother to child transmission of HIV: “Actions taken to eliminate new infections among children must always reinforce and promote the human rights of women living with HIV and their infants.”[v] This means that in order to meet the WHO and UNAIDS requirements for being declared as having eliminated mother to child transmission of HIV, countries must show that they did not violate human rights in the process and particularly that they did not conduct compulsory HIV testing of pregnant women (or forced sterilization).

Obliging pregnant women, and the other targeted groups to undergo testing not only infringes their human rights, it also poses severe public health risks. It can be unreliable, if people are tested whilst they are within their window period they are under the false assumption that they are HIV free and would live accordingly. Coincidentally, the early stage of their infection is also the time when people are most infectious.

Compulsory testing sounds like a stern measure but in reality it could simply be bypassed – pregnant women and their partners could avoid using life-saving health services for the duration of their pregnancies.

Furthermore, the first person in a family or relationship to test positive is almost always treated as the person who brought HIV infection into the home, even if it turns out that the other partner was also positive when that first test occurred. This belief opens the door for men bringing charges against their wives or female partners for allegedly exposing them to HIV.[vi]

Additionally, Malawi has achieved great success implementing the option B+ strategy, which was invented by Malawi in 2010 and has been adapted by WHO as a global strategy for eliminating mother to child transmission. Through this strategy, over 95% of pregnant women go through counselling and HIV testing and where they are positive, they are immediately put on life-saving medication.

Introducing compulsory testing of pregnant women could reverse progress made and undermine Malawi’s leadership in the global effort to eliminate mother to child transmission.

Article 27(b) – that allows for pre-recruitment testing of domestic workers

Mandatory HIV screening is discriminatory and constitutes a gross violation of the rights to privacy, dignity and employment. Indeed, the International Labour Organization (ILO) Code of Practice on HIV/AIDS and the World of Work maintains that ‘HIV testing should not be required at the time of recruitment or as a condition of continued employment. Any routine medical testing, such as testing for fitness carried out prior to the commencement of employment or on a regular basis for workers, should not include mandatory HIV testing.’^[vii]  Nevertheless, the intimate and unique role that domestic workers play in a home has been used as justification for their inclusion for pre-recruitment HIV testing. Alleged sexual abuse of children (by domestic workers) as further justification. This was something in the minds of the drafters and the public queried during the consultative process almost a decade ago! The other underlying fear was that a female domestic worker living with HIV would potentially have sex (be sexually assaulted) by the man of the house and thereby bring HIV into the family home. Why must we legislate to protect women from philandering husbands in a way that blames the “other woman” and legitimises the sexual assault or sexual harassment of a domestic worker – women, often girls, who are in a desperately unequal power relationship with their employers.

Article 27(b) is yet another stark example of the ways in which the HIV Bill seeks to protect others from PLHIV and not simply protect PLHIV and prevent transmission of HIV. Employing someone to take care of your children is always a delicate business. Whether that individual is or is not a PLHIV. Screening a potential domestic worker for HIV does not tell you much more than that they tested negative (if they test negative) on the day that they were tested. That person could well be within their window period, or could be a mere minutes away from being infected. Sexual abuse is a monstrous crime, a crime that is unaffected by a provision that allows HIV screening of domestic workers. Potential employers have the responsibility to ensure that the work environment is one where there are minimal risks of transmission to and from a domestic worker. A matter easily dealt with by following firm hygiene guidelines. The responsibility for ensuring the safety of our children rests squarely with us the parents and guardians, the employers and not solely the domestic worker.

Part X: Articles 41-44 – that prescribe personal conduct and responsibility of PLHIV and criminalize transmission of HIV

Part X of the HIV Bill provisions is damagingly titled ‘Personal Conduct and Responsibility.’ Labelling the section in this manner only serves to reinforce a version of the HIV/AIDS pandemic that is cast in a distressing binary of victims and vectors. Discourse which flies in the face of literature and logic about the epidemiological and the social aspects of HIV/AIDS. There is no us and them when it comes to HIV/AIDS in Malawi – some are infected, but all of us are affected by HIV and AIDS.

Transmission of HIV rarely occurs with fanfare; instead it happens silently within the intimate spaces of human existence.

There are HIV-positive individuals who intentionally or recklessly expose others to infection and it would be inconsistent with the purpose of criminal law to exclude such behaviours from its scope completely. Even so, such acts could easily be prosecuted under existing legislation. As Lazzarini et al eloquently put it: the behaviour most widely accepted as wrong — deliberately using HIV as a tool to harm or terrorize another — is too rare to influence the epidemic, whereas the behaviour most responsible for spreading the virus—voluntary sex … —is difficult and controversial to prohibit.’^[viii]

For the time being there is no scientific, empirical or even informal evidence that the behaviour to be targeted occurs to such an extent that the creation of an HIV-specific statutory offence is necessary; an HIV-specific statutory offence would have no or little practical utility; the social costs entailed in creating an HIV-specific statutory offence are not adequately justified; and, that an HIV-specific statutory offence instead infringe the right to privacy to an unjustifiable extent.^[ix]

The provisions in the HIV Bill rely upon the offender having tested positive for HIV. Under section 41, when a person is ‘diagnosed as having HIV infection or AIDS’ they are obliged to undergo counselling and to comply with prescribed precautions. The full burden of containing their infection is placed upon the PLHIV: vectors and victims. The potential public health implication of this provision is to remove all individual responsibility for one’s own sexual health – the implication is that if all PLHIV are under a legal obligation to take precautions then everyone else is safe. A suggestion that flies in the face of the knowledge, the context and the realities of the HIV pandemic and the successful public health measures that we as a country have put in place to change the tide.

Article 43 is narrowly crafted (which is good) and criminalises deliberate infection: ‘any person who deliberately infects another person with HIV shall be guilty of an offence and shall be liable to imprisonment for fourteen years.’ Infection must have resulted from the act in question. Exposure to infection or an attempt to infect would not suffice. Furthermore, there is no condition that the offender is a PLHIV and as such evidentiary requirements concerning knowledge are not automatically relevant. The crux of the offence is that the offender has the mens rea or ‘guilty mind’ to infect and a causal link must be made between their action and HIV infection of the complainant.

In article 44 deliberate is replaced with reckless or negligent infection. The Commission intended to create an offence that captures instances where someone either knows or suspects that they are HIV positive. In reality what would be the evidentiary basis for criminal suspicion of status. In a country like Malawi just about everyone who does not know their HIV status for a fact, could be (or perhaps should be) living with the suspicion that they might be HIV positive. ‘Another problem if this approach is followed, is that any knowledge of HIV/AIDS is dangerous. People could consider it “safer” to avoid all knowledge, all information, all thinking of HIV/AIDS. The less you know of HIV/AIDS the less your chances are of “having reason to believe”’ that you are HIV positive.’

The Government of Malawi should ensure access to information and education about the causes, modes of transmission, means of prevention and management of HIV and AIDS messages on HIV and AIDS, as well as the actual provision of means of HIV prevention – for example provision of sterilising chemicals or machines that barbers can use to treat their equipment. Interventions such as these seem much more likely to ensure safety and prevent instances of HIV infection than prosecution of narrow or sloppy reckless infection offences where there will have to be a causal link made between the alleged perpetrator, their recklessness or negligence and the HIV infection of the accuser. Taken in its entirety, Part X of the HIV Bill does nothing to enhance current criminal law provisions that could be used to prosecute harmful HIV-related behaviour.

The HIV Bill and the feminization of HIV Criminalization

Criminalizing HIV/AIDS overlooks that reality that not all Malawians are free to develop personal abilities and make choices without the limitations set by gender roles. Applying criminal law to HIV exposure or transmission does nothing to address the epidemic of gender based violence or the deep economic, social, and political inequalities that are at the root of women’s and girls’ disproportionate vulnerability to HIV. On the contrary, criminalization is likely to heighten the risk of violence and abuse that Malawian women face; strengthen prevailing gendered inequalities in healthcare and family settings; further promote fear and stigma; increase women’s risks and vulnerabilities to HIV and to HIV-related rights violations; and have other negative outcomes for women.[x]

Women bear the brunt of the HIV pandemic – they are the first to learn of their status and are largely responsible for the care of those living with HIV. This entails that the criminal transmission provisions in Part X of the HIV Bill will overwhelmingly be applicable and be applied to women.

There are several real harms from HIV criminalisation that have been pointed out in this briefing including the following:

• Women frequently are the first to know their status, and therefore, can be at greater risk of prosecution.
• Women may face domestic violence for disclosing their HIV status to their partners or family. But they also risk arrest if they do not.
• HIV criminalization does not protect women from sexual coercion or violence.
• The most vulnerable and marginalized women such as child brides or female sex workers, will be most affected.

Legislators and those responsible for the interpretation and enforcement of law must base their HIV response not on populist morality but on the strong evidence base provided by three decades of clinical, scientific and social research into HIV and AIDS.[xi] What is clear is that the criminalisation of transmission and the compulsory testing provisions that have been highlighted in this post encourages a false sense of security, with the targeted groups (women, pregnant women, domestic workers, persons living with HIV) being misleadingly represented as the only vectors of disease and that they are now being controlled. Everyone else can be lulled into complacency about their own sexual health acting under the assumption that pregnant women, for example, are largely HIV-free. Furthermore, this sends the wrong message about risk groups by promoting an “us and them” mentality and creating further fear, further denial and enhancing stigma.

The HIV Bill creates a situation where persons knowingly living with HIV (who are largely women) are wholly responsible for controlling their disease and protecting the “uninfected” from infection.

It is important to remember that, most of the time, people who transmit HIV to another person do so because they don’t know that they are HIV positive or that they are placing their partner at any risk of HIV infection. This happens frequently because people are generally MOST infectious (have the highest amount of HIV in their blood) in the first two months after they, themselves, have become infected and before they have an HIV test that detects HIV antibodies in their system. There are close links between violence and vulnerability to HIV and in Malawi we know that many women live lives that are darkened by violence. As many as 1 in 3 women and girls have and continue to experience sexual and gender based violence.

Criminalization of HIV non-disclosure ignores the power imbalance that can make it more challenging for women to reveal their status to their sexual partners, including the fear that it would one day be used against them.

Applying criminal law to HIV nondisclosure or exposure doesn’t do anything to end the social inequalities that make women and girls more vulnerable to HIV, like gender-based violence or difficulties in attaining financial independence for themselves and their family. In fact, provisions like these can increase women’s risk of violence and abuse, and further promote the fear and stigma experienced by women living with HIV.

Brief Gender analysis of the HIV/ AIDS (Prevention and Management) Bill 2017

The table below presents a summary of the WLA gender analysis of the HIV and AIDS (Prevention and Management) Bill, 2017

[i] Law Commission Report.

[ii] HIV and AIDS in Malawi https://www.avert.org/professionals/hiv-around-world/sub-saharan-africa/malawi

[iii] Available at www.justice.gov.za/vg/hiv/docs/2008_Model-Law-on-HIV-in-Southern-Africa.pdf

[iv] UNAIDS/IPU (1999) Handbook for Legislators on HIV/AIDS, Law and Human Rights: Action to combat HIV/

[v] See https://results.unaids.org/sites/default/files/documents/Validation%20Case%20Study.pdf

[vi] The Positive Justice Project “What HIV Criminalization Means to Women in the U.S.”

[vii] Section 8.1 of the ILO Code of Practice on HIV/AIDS and the World of Work.  ILO, 2001. Malawi is a member state of the ILO.

[viii] Lazzarini, Z., Bray, S. and Burris, S. ‘Evaluating the impact of criminal laws on HIV risk behavior’ Journal of Law, Medicine & Ethics, 30 (2002): 239-253, p 251.

[ix] SALRC Fifth Interim Report on Aspects of the Law Relating To AIDS: The Need for A Statutory Offence Aimed At Harmful HIV-Related Behaviour (Project 85) 2001.

[x] ATHENA “10 Reasons Why Criminalization of HIV Exposure or Transmission Harms Women”

[xi] 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.

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Sarai Chisala-Tempelhoff

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