Good intention, bad policy: A dialogue with SADC Members of Parliament on Criminalisation of HIV transmission

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Members of Parliament from 10 countries in the SADC region attended the meeting 

“These days, none can dare contest the link between HIV, health, human right and the law,” stated Hon Justice Prof. OBK Dingake during his key note address delivered at the opening of a meeting of the Southern African Development Community (SADC) Parliamentary Forum (PF) Standing Committee on Human and Social Development and special interrogation of criminalisation of HIV exposure and transmission in the SADC region ahead of the 37th SADC PF Plenary Assembly Session.

The meeting, co-hosted by ARASA and SADC PF, was held in Gaborone, Botswana from 27 to 28 May 2015 and attended by 10 members of parliament from Botswana, the Democratic Republic of Congo (DRC), Lesotho, Malawi, Namibia, Seychelles, South Africa, Swaziland, Tanzania, Zambia and Zimbabwe. The meeting was convened in response to the emergence of the criminalisation of HIV transmission as a contentious issue during the Committee sitting at the 36th Plenary Assembly Session in Victoria Falls in October 2014. During this session, some members of parliament expressed the view that intentional and/or negligent transmission should attract penalty and criminal law should be considered as a deterrent.

In light of this, the objectives of this convening were 1) to consider country positions and updates on national legislation and policies on criminalisation of wilful and intentional HIV transmission, exposure and non-disclosure in the SADC region; 2) to offer a platform for direct interaction between legislators and human rights experts on evidence-based information related to wilful and intentional HIV transmission, exposure and disclosure; and 3) to gain knowledge on the existing scientific evidence relating to wilful and intentional HIV transmission, exposure, non- disclosure and criminal law.

In his keynote address, Hon, Justice Prof OBK Dingake made reference to the role of law makers stating that: “I would also submit, with greatest of respect, that it is time the three arms of the State, the Judiciary, the Executive and the Legislature consider themselves partners in the area of honouring rights than protagonists. In this way, the ultimate objective of law being the welfare of society will be better served.”

Making reference to the report of the HIV and the Law Commission, he explained that “the Global Commission on HIV and the Law found that good laws, fully resourced and properly enforced can widen access to prevention and health care services, improve quality of treatment enhance social support for people affected by the epidemic, and protect human rights that are vital to survival and save public money.”

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Hon Justice Prof. OBK Dingake delivering his key note address 

Further, he explained that “the arguments in favour of using criminal punishment against persons found guilty of transmitting HIV/AIDS are grounded on the retributive and deterrent functions of criminal law. It has been argued that, given the fatal and debilitating effects HIV/AIDS, the law should punish those who wilfully or recklessly transmit it to innocent victims.” However, he pointed out that treatment significantly improves the length and quality of life of people living with HIV, which means that “HIV infection can no longer reasonably be the basis of criminal charges of “murder”, “manslaughter”, or “attempted murder”, as it appears to be in some jurisdictions.” To read Judge Dingake’s full speech, click here

ARASA staff and experts from the Southern Africa Litigation Centre and the Zimbabwe Lawyers for Human Rights also elaborated on the challenges posed by the criminalisation of HIV transmission, exposure and non-disclosure. 

Following the consideration of various country positions, the expert’s presentations and the provisions of the SADC Model law on HIV and AIDS, the committee members agreed that there was no evidence to support the criminalisation of HIV transmission in an effort to further prevention efforts. They reiterated the role of parliament in enacting efficacious laws and that of the judiciary in interpreting and not restating or making the law. However, they noted with concern, the continued transmission of HIV, especially in countries experiencing conflicts where sexual assault is used as a weapon of war; the high prevalence of gender-based violence in countries with a high prevalence of HIV in their populations; and high levels of drug abuse, among others; as well as instances where certain persons maliciously, wilfully and intentionally transmit HIV.

The Committee agreed to recommend to the 37th Plenary Assembly that the Plenary Assembly reaffirm its commitment to the values and principles contained in the SADC Model Law on HIV and AIDS with regard to non-enactment of laws specifically criminalising HIV transmission; and make a pronouncement urging member states to take into account the current scientific evidence and progress made in new technologies in prevention and treatment of HIV and review the existing laws criminalising HIV. It further recommended that the SADC PF Secretariat be tasked to formulate some activities that would enable SADC parliamentarians to effectively participate in the “Ending AIDS” Campaign, including the convening of a regional consultative conference on SRHR which would be aimed at engaging and sensitising traditional and religious leaders specifically on pertinent issues pertaining to HIV and AIDS as part of parliamentarians’ contribution towards the campaign. They also recommended that the SADC secretariat be requested to make a presentation to the Committee on Human and Social Development and Special Programmes at its next meeting as regards the state of human trafficking in the region.

The meeting report was tabled and adopted with most content of the original report during the 37th SADC PF Plenary Assembly Session hosted from 4 to 7 July 2015 in Durban, South Africa.  However, the debate on the recommendations related to criminalisation of HIV transmission was deferred to the next session as business was not concluded.

Visit www.arasa.info to read the meeting report.