Overview
The Democratic Republic of Congo (The DRC) has laws specifically governing the conduct of people living with HIV, as well as general laws which can be applied to HIV cases.
In 2008, The DRC adopted an omnibus HIV law that aimed to protect the rights of people living with HIV. However, the law also included provisions for the criminalisation of ‘deliberate’ HIV transmission (Article 45), and HIV non-disclosure (Article 41).
We are aware of at least six cases under the 2008 law. Most of these prosecutions were unsuccessful, with the exception of those where the accused was also prosecuted for sexual assault.
Of note, in 2015 a woman was accused under both Articles 41 and 45. The complainant did not contract HIV. The Court acquitted the woman stating that intent had not been proven as she had indicated always having used female condoms. She was also on treatment.
Members of civil society in The DRC mobilised in 2010 to reform these problematic HIV criminalisation provisions. In 2018, after eight years of lobbying, parliamentarians voted to amend Article 41 (non-disclosure) and repeal Article 45 (‘deliberate’ HIV transmission).
Article 41 still requires a person living with HIV to inform their partner of their status prior to sex – and permits doctors to inform partners of someone who fails to do so. ‘Deliberate’ HIV transmission is no longer explicitly criminalised, however prosecutions are still possible under Article 174i of the Penal Code. This provision makes it an offence to ‘deliberately’ transmit a sexually transmitted infection to another, with a penalty of penal servitude for life and a fine. In addition, under Article 177, the ‘deliberate’ transmission of a sexually transmitted infection, including HIV, to a child is punishable by life imprisonment.
Laws
Law No. 08/011 of 14 July 2008 for the protection of the rights of people living with HIV/AIDS and affected persons
Article 41
Anyone who knows that they are HIV-positive must inform their sexual partner within a reasonable time and before any new sexual encounter.
However, if the person refrains from informing their sexual partner, the doctor may, exceptionally, waive professional confidentiality.
Law No. 06/018 of 20 July 2006 amending and supplementing the Decree of 30 January 1940 on the Criminal Code
Article 174i
Anyone who deliberately infects a person with an incurable sexually transmitted infection shall be punished by a life sentence of penal servitude and a fine of two hundred thousand Congolese francs.
Law No. 009/001 of 10 January 2009 on the protection of children
Article 177
Anyone who deliberately infects a child with a sexually transmitted infection, including HIV/AIDS, is punished by life imprisonment and a fine of between five hundred thousand and one million Congolese francs.
Further resources
Describes civil society efforts to reform the HIV law in the Democratic Republic of Congo and their outcome in 2018.
This document is in French.
Analysis of the Congolese legal framework, conducted in collaboration with UNDP, addressing issues of criminalization of key populations and including a section on the criminalization of HIV transmission in the DRC (page 61). Since the publication of this report, the legislative provisions criminalizing sexual transmission and/or exposure to HIV have been amended.
This document is in French.
Acknowledgements
Report presenting the results of a survey on HIV criminalization in African countries where French is spoken (hereinafter "Francophone Africa"), conducted from May to September 2017.
Authors: Stéphanie Claivaz-Loranger & Cécile Kazatchkine for the Canadian HIV Legal Network and HIV JUSTICE WORLDWIDE
HIV Justice Network's Positive Destinations
Visit the Democratic Republic of Congo page on Positive Destinations for information on regulations that restrict entry, stay, and residency based on HIV-positive status, as well as access to HIV treatment for non-nationals.
