Malawi: High Court rules that mandatory HIV testing is unconstitutional

By Anneke Meerkotter, Southern Africa Litigation Centre (SALC) and Ian Southey-Swartz, Open Society Initiative for Southern Africa (OSISA)

In 2009, a group of women, presumed to be sex workers, was as part of a police sweeping exercise in Mwanza, Malawi. The women were taken to the Mwanza District Hospital where they were tested for HIV without their knowledge or consent, and in contravention of Malawi’s HIV policy. The women were then taken to the Mwanza Magistrates’ Court where some were charged with and convicted of “spreading venereal disease (HIV)”.

In 2011, eleven of these women filed an application in the Blantyre High Court challenging their subjection to mandatory HIV tests and the public disclosure of their HIV status in open court. The women argued that these actions by government officials violated their constitutional rights. Justice Dorothy nyaKaunda Kamanga handed down judgment on 20 May 2015.

Reading her judgment in court, Justice nyaKaunda Kamanga, said that forced HIV testing amounted to a violation of the applicants’ constitutional rights, including their right to privacy; their right to non-discrimination; their right to freedom from cruel, inhuman and degrading treatment; and their right to dignity. Justice Kamanga went a step further and requested a copy of the criminal court records in order to review the sentence the magistrate imposed on the applicants.

The case is illustrative of how the criminal justice system often impedes on accused persons’ rights to dignity, a fair trial and access to justice. In the present case, the matter was repeatedly delayed, including due to high caseloads and industrial action by judiciary personnel.

The judgment comes in the context of other important developments in Malawi. Civil society activists have increasingly voiced their concerns about the manner in which sex workers are treated by the police. Police often arbitrarily arrest women presumed to be sex workers during sweeping exercises and misguidedly and unlawfully charge them with offences such as being a rogue and vagabond or living off the earnings of prostitution, when there is no evidence of such offences having been committed. Such arrests inevitably involve a range of human rights violations.

The attitudes displayed by police towards alleged sex workers also extend to how some policy-makers view sex workers in Malawi. The HIV and AIDS (Prevention and Management) Bill of 2013, currently prohibits compulsory HIV testing, but allows forced HIV testing for specific groups of people, including commercial sex workers. In contrast, this case highlights the human rights violations caused by mandatory HIV testing and the importance of having legislation which prohibits this. This is an important message at a time when the Malawi government engages in final deliberations on the proposed Bill.

The case shows that it is possible for vulnerable groups to hold the government accountable when their rights have been violated. It is hoped that the judgment, once available, will be used as a resource by other marginalized groups to assert their rights and will contribute to improving constitutional jurisprudence in the region.

Center for Reproductive Rights welcomes Kenya High Court ruling that quashes vague and unconstitutional HIV-specific criminal statute

03.30.15 – (PRESS RELEASE) Key provisions of a law criminalizing the transmission of HIV in an effort to curb spread of the disease in Kenya are unconstitutional and violate fundamental human rights, according to a recent landmark ruling from the High Court of Kenya. The Center for Reproductive Rights filed an amicus brief in support of the case brought by AIDS Law Project in 2010.

While the “HIV and AIDS Prevention and Control Act, No.14 of 2006” (“HIV/AIDS Act”) codifies measures for treatment, counseling, care and support of people living with HIV—it contains troubling provisions that criminalize the transmission of HIV in certain instances and permit partner disclosure of HIV/AIDS status by health care workers. The law also discriminates against women, who are often subject to coercive practices and violations of informed consent and confidentiality when testing for HIV, particularly during pregnancy.

In its decision issued on March 18, the three-judge panel ruled Section 24 of the HIV/AIDS Act which criminalized transmission of HIV was unconstitutional under the Kenyan Constitution, as the provisions are too vague and that disclosing patients’ HIV status violates their rights to privacy and confidentiality. The judges also advised the State Law Office to review the HIV/AIDS Act to “avoid further litigation” surrounding the law.

Said Evelyne Opondo, regional director for Africa at the Center for Reproductive Rights:

“All people are entitled to quality health services—regardless of their HIV status or other health needs.

“This law has inflicted fear, shame, and punishment on countless Kenyans, especially pregnant women who desperately need and deserve quality maternal health care.

“We commend the High Court for finding the criminalization of HIV transmission as unconstitutional and a violation of Kenyans’ fundamental human rights. Now is the time for the Kenya government to immediately amend this legislation and ensure people living with HIV can get the care they need without fear of discrimination or criminalization.”

“We must ensure people living with HIV receive the proper medical care and support that they need,” said Jacinta Nyachae, Executive Director of the AIDS Law Project. “If we want to reduce the spread HIV and AIDS and put an end to the stigma, violence and discrimination surrounding the disease, our public policies must be based on medical evidence and grounded in human rights.”

In 2011, the Center for Reproductive Rights submitted an amicus brief in the AIDS Law Project v. Attorney General & Director of Public Prosecutions (Petition No. 97, 2010), challenging the constitutionality of the law. The Center claimed that the HIV law could be interpreted to criminalize women living with HIV who expose or transmit the virus to a child during pregnancy, delivery, or breastfeeding. The Center argued that criminalizing HIV exposure and transmission does not protect women from transmission, but instead exacerbates existing stigma and discrimination against women, exposing them to risk of prosecution. The Center’s brief also recommended the law’s provisions permitting partner disclosure of HIV status be quashed.

Kenya: High Court declares Section 24 of HIV and AIDS Prevention and Control Act (2006) unconstitutional, removes overly broad and vague HIV-specific criminal statute

By Kamau Muthoni Kenya: The High Court has declared unconstitutional a section of the HIV and Aids Prevention and Control Act that sought to criminalise reckless spreading of the disease. A three-judge bench comprising justices Mumbi Ngugi, Isaac Lenaola and George Odunga ruled Section 24, introduced by the State and criminalising the reckless spreading of HIV, was unclear and had no limits on which group of people was targeted.

“We so hold that Section 24 of the HIV and Aids Prevention and Control Act No. 14 of 2006 does not meet the principle of legality which is a component of the rule of law. The said section is vague and over-broad, and lacks certainty, especially with respect to the term ‘sexual contact’,” read part of the judgment.
As drafted, the section provided that a person who is aware of being infected with HIV or who is carrying and is aware of carrying HIV shall not, knowingly and recklessly, place another person at risk of becoming infected with HIV unless that other person knows that fact and voluntarily accepts the risk of being infected. Further, the section read that the person shall take all reasonable measures and precautions to prevent the transmission of HIV to others; and inform, in advance, any sexual contact or person with whom needles are shared of that fact, failure to which one would be jailed, if convicted by a court, for a term not exceeding seven years or a fine not exceeding Sh500,000, or both.
Justice Lenaola ruled that the section of law failed to meet the legal requirement that an offence must be clearly defined in law. “To retain that provision in the statute books would lead to an undesirable situation of the retention of legislation that provides for vague criminal offences which leave it to the court’s subjective assessment whether a defendant is to be convicted or acquitted,” said the judge.
In the case, filed by a lobby group called Aids Law Project, the court heard that the same section had warranted other people surrounding an infected person to seek his or her status from a medical practitioner without their discretion or involvement. The lobby group argued that such risk of unwarranted disclosure of confidential information was against the affected person’s privacy. Aids Law Project adopted the view that Section 24 of the Act was likely to promote fear and stigma as it imposed a stereotype that people living with HIV were immoral and dangerous criminals, and this would negate the efforts being made to encourage people to live openly about their HIV status.

China: Warranted fears of stigma and discrimination in healthcare settings resulting in people with HIV not disclosing their status

“I was so desperate, and I could not imagine the future if I was really infected,” Fu Yi (pseudonym), a maternity doctor at Sichuan Provincial People’s Hospital in Chengdu, recalled her feelings when she was exposed to HIV-infected blood during a birth in 2010.

Fu accidentally exposed her injured foot to the blood of the HIV-positive patient who was delivering a baby – Fu did not know the patient was HIV-positive, until the blood test results came out the next day.

Fu immediately started to take anti-AIDS emergency prevention pills. She suffered from the  side effects, vomit and nausea, for a month, and lived in an abyss of fear for over half a year until she was eventually declared HIV free, she told the Global Times.

This incident was made public recently when the media began to report on the danger of exposure to infectious diseases that medical professionals face.

“We call [what Fu experienced] ‘occupational exposure,'” Xiang Qian, with the healthcare associated-infections division at Sichuan Provincial People’s Hospital, told the Global Times.

Occupational exposure for medical staff can be defined as coming into contact with infectious virus or toxic substances at work, which can pose health risks, according to Xiang.

Fu was not the only medical worker who has been exposed to infectious diseases at work. As of press time, there are no national statistics available, but in the hospital where Fu works a total of 122 medical staff reported being exposed to infectious diseases in 2013, including AIDS, hepatitis B and syphilis, according to Xiang.

From January to November this year, 88 medical workers, 43 percent of them nurses and 29 percent of them doctors, were exposed to infectious diseases at work. Hepatitis B topped the list, with 45 percent of the incidents of exposure involving the disease, followed by syphilis with 14 percent and HIV with 7 percent.

Among those infectious diseases that medical staff are exposed to, HIV is the most serious.

The risk is heightened as many patients do not disclose their HIV infection to physicians when being treated for other conditions. Meanwhile, many physicians do not take the kinds of precautions necessary to avoid becoming infected.

Concealment

Pregnant women usually go through a full blood test for possible infectious diseases before the delivery, and the result comes the day of the birth.

But in Fu’s case, the patient’s critical condition meant that she had to perform the delivery immediately, Fu said.

The patient’s family concealed her medical history and told Fu the patient had no infections. Fu, who had no time to take extra precautions, went into the operating room with an injured foot.

“From the doctor’s perspective, concealing infectious diseases is unfair,” Fu said.

But in some HIV patients’ eyes, disclosing their disease would jeopardize their access to healthcare as some hospitals may transfer them to designated infectious disease hospitals that offer inferior treatment.

Bi De, (pseudonym), 26, an AIDS patient who organized a debate in Shenzhen in November on whether HIV carriers should disclose their disease to doctors not treating their HIV, said he understood the ethical necessity to disclose one’s infections.

“But after my experience, I would not tell them [doctors] again,” Bi said. He first learnt he was HIV positive was two years ago when he went to a hospital in Henan Province to receive treatment for facial paralysis, and the hospital told him about his disease and transferred him to a designated hospital in Zhengzhou.

“But the infectious disease hospital did not have enough resources, and I finally recovered [from his paralysis]after visiting a Traditional Chinese Medicine doctor,” Bi said.

In another high-profile case that came to light last year, an HIV-positive cancer patient sued a Tianjin hospital that refused to treat his cancer due to his HIV. The case was the first well-known case of an HIV carrier suing a hospital for discrimination.

After hearing of the case, then vice-premier Li Keqiang [now premier] immediately called for better treatment of HIV/AIDS patients.

But the Tianjin Hexi District Court last week rejected the case as the plaintiff failed to provide a legal basis for his claims, according to Beijing-based newspaper The Mirror.

Chinese media has reported many cases of hospitals delaying or refusing treatment to HIV carriers despite the regulation issued by the State Council in 2006 which stipulates that clinics and hospitals should not refuse or delay treatment for HIV/AIDS patients.

According to Xiang, hospitals should only transfer patients to designated infectious disease hospitals when their conditions could pose public health risks, such as if they have SARS or bird flu.

Shao Yiming, an AIDS expert at the Chinese Center for Disease Control and Prevention, told the Global Times that hospitals are obliged to treat the diseases of HIV carriers.

“The HIV virus has a lower transmission level than many other infectious diseases such as hepatitis B. Why can they [doctors] treat [the disease] of hepatitis B carriers but not those of HIV carriers?” Shao said.

By the end of 2013, the number of people infected with HIV/AIDS hit 810,000 in China, according to the National Center for AIDS/STD Control and Prevention.

Shao suggested the country should put the related laws into practice while making more effort to promote knowledge of HIV/AIDS among medical staff and society.

Safety protection awareness

Xiang’s hospital laid out protection guidelines for medical staff to minimize their exposure to infectious diseases, but many are reluctant to adopt them.

“For example, some doctors following extra safety protection guidelines have to wear two sets of gloves, which they believe affect their surgical performance,” Xiang said.

Who should pay for the safety protection equipment in a long run is another headache for Xiang.

As the government subsidy does not cover it, hospitals that make an insufficient profit find it difficult to afford the equipment, he said.

“Some hospitals would not even pay for their medical workers to have a hepatitis B vaccine,” He said.

But Fu, who has performed gynecological surgeries on two HIV carriers after she was exposed, has been extra careful since the exposure.

“I wear special masks to prevent the blood splashing, safety protection suits, shoes and other extra safety protection equipment when I perform surgeries,” she said.

South Africa: Forced or involuntary disclosure in healthcare settings disproportionately affecting women resulting in discrimination and gender-based violence, despite constitutional protections

Editor’s note: This story is part of a Special Report produced by The GroundTruth Project called “Laws of Men: Legal systems that fail women.” It is produced with support from the Ford Foundation. Reported by Tracy Jarrett and Emily Judem.

An HIV diagnosis is no longer a death sentence, thanks to advances in medicine and treatment in the last 30 years. But stigma against HIV/AIDS and fear of discrimination still run strong in South Africa, despite legal protections, as well as drastically improved treatment, prevention techniques and education. Today an estimated 19 percent of South African adults ages 15-49 are living with HIV.

And women, who represent about 60 percent of people living with HIV in South Africa, face a disproportionately large array of consequences, including physical violence and abuse.

“Upon disclosure of women’s HIV positive status,” reads a 2012 study by the AIDS Legal Network on gender violence and HIV, “women’s lives change, due to fear and the continuum of violence and abuse perpetrated against them.”

Although forced or involuntary disclosure of one’s HIV status — along with any discrimination that may result from that disclosure — was made illegal by South Africa’s post-apartheid constitution, experts and advocates say that public knowledge of these laws is limited and the legal system is not equipped to implement them.

Not only are women disproportionately affected by HIV, but they are also more likely to know their status. More women get tested, said Rukia Cornelius, community education and mobilization manager at the NGO Sonke Gender Justice, based in Johannesburg and Cape Town, because unlike men, women need antenatal care.

And often, she said, clinics give women HIV tests when they come in for prenatal visits.

The way hospitals and clinics are set up also are not always conducive to protecting privacy, said Alexandra Muller, researcher at the School of Public Health and Family Medicine at the University of Cape Town.

“People who provide services in the public system, at the community level, are community members,” said Muller. “This is an important dynamic when we think about stigma and disclosure.”

Doctors and nurses can see 60 to 80 patients per day in an overcrowded facility with shared consultation rooms, Muller said.

“There’s not a lot of consideration for how is a clinic set up,” added Cornelius, so that “a health care worker who has done your test and knows your status doesn’t shout across the room to the other health care worker, ‘okay, this one’s HIV-positive, that file goes over there.’”

Once HIV-positive women disclose their status, willingly or not,they are disproportionately affected by stigma because of the direct link between HIV and gender violence.

 

Media Stigma, HIV And Criminalization for AIDS 2012 (Leo Herrera, Sero Project, US, 2012)

SERO Project, Media Stigma, HIV And Criminalization for International AIDS Conference, Washington DC, July 2012.

Presentation by Sean Strub, Film by Leo Herrera.