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Africa: Move to Criminalise Aids 'Bad for Africa'
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Business Day (Johannesburg)
8 August 2008
Posted to the web 8 August 2008
Tamar Kahn
Johannesburg
A wave of ill-considered new African HIV/AIDS laws criminalising the transmission of the virus were likely to backfire and end in more people being infected, Supreme Court of Appeal judge Edwin Cameron said this week.
Cameron was speaking at the 17th International AIDS Conference, which ends today.
"Just like condoms or faulty medical supplies, bad laws can spread the virus," said SA's Cameron, who is expected to give a plenary address on the issue later today.
Africa bears the brunt of the HIV/AIDS pandemic, and leaders on the continent are battling to curb the rate of new infections: two-thirds of the 33-million people with the disease live south of the Sahara.
Most don't know they are infected, and many African countries are desperately trying to persuade more people to get tested.
Cameron said he hoped to use the "Champions for HIV" initiative that Botswana's former leader, Festus Mogae, started this week, to urge changes to recently passed laws in west, east and central Africa that criminalised HIV transmission.
More than a dozen African countries have adopted legislation based on a much criticised "model" law developed by Ghana, and another four countries have bills pending.
The Ghanaian laws contained "terrifying" provisions that made it a criminal offence (carrying a maximum seven- year jail term) for those knowing they were HIV-positive not to disclose their status to their partner before having any kind of sexual contact, said Cameron.
The law did not define what such contact might entail. "One doesn't know whether it's holding hands, kissing, fondling or anything more extensive," said Cameron, who is openly HIV-positive and has been on antiretroviral treatment for more than a decade.
Criminalising the transmission of HIV was misguided and would undermine much of the work of the past 20 years, to try to reduce the stigma associated with the disease, he said. It would also inhibit people from getting tested, as they could not be prosecuted if they innocently passed on the virus, he said.
Several African countries had adapted Ghana's law, while others had adopted it wholesale, said Jonathan Cohen, director of the Open Society Institute's Law and Health initiative.
Senegal, for example, had made it a criminal offence for an HIV-positive woman to transmit the virus to her baby.
Other countries had passed laws that made it an offence to provide sex education to minors. In Guinea, for example, sex education for children under the age of 13 was now a crime. Togo had introduced compulsory HIV testing for sex workers, and in Liberia, physicians may disclose a child's HIV status "to anyone involved in their care or education," said Cohen.
Zimbabwe recently sentenced a young HIV-positive woman to five years in jail for merely exposing her partner to the virus -- although he did not become infected.
These laws discriminated against women, said Anne Gathumbi of the Open Society Initiative for East Africa. She said women were usually the first partner in a heterosexual couple to learn of their HIV infection, since they had more contact with health services.
She described the laws as a cheap substitute for laws that would truly protect women, such as laws against marital rape and denial of property rights to divorcees or widows.
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Laws protecting women had been stuck in the legislative pipeline for years in a host of African countries because there was no political will to safeguard their rights, she said. Yet their legislators were intent on rushing through discriminatory bills on HIV/AIDS.
Just like bad condoms,bad medical supplies,and bad laws bad morals also spreads HIV/Aids.
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