Human Rights Watch (Washington, DC)
24 June 2008
press release
24 June 2006
Reverend Joseph Mpinganjira, Chairperson
The Malawi Law Commission
Dear Reverend Mpinganjira and members of the Commission:
Human Rights Watch (HRW) is pleased to have an opportunity to submit comments to the Law Commission on this report.
Introduction
HRW is an independent non-governmental organization, founded in 1978, that monitors human rights developments in more than eighty countries around the world. Since 2001, HRW has been monitoring human rights violations in the context of the global HIV epidemic and has produced a number of reports that detail human rights violations that fuel the epidemic and create barriers to access to treatment, care and support for people living with HIV.
HRW wishes to commend the Commission for its explicit commitment to human rights and is pleased to note that various attempts have been made to ensure that the rights of those infected and affected are recognized and protected.
HRW notes that this is an interim report and hopes that this letter will alert the Commission to potential concerns, and assist it to strengthen the human rights protections provided by the proposed legislation. We have chosen to confine our comments to the draft legislation and have not commented on the background material provided in the report.
Composition of the National AIDS Commission
The report recognizes that 'the prevention and management of HIV and AIDS requires the full participation of all citizens regardless of their sex'. The report also recognizes the disproportionate effect of the epidemic on both the vulnerability of women and girls to HIV transmission and its impact on them. HRW therefore recommends that the composition of the National AIDS Commission be expanded to include a representative nominated by the women's sector in Malawi.
Gender
HRW appreciates the Commission's acknowledgement of the gender dimensions of the epidemic. HRW's research has found, as the Commission's comments accept, that human rights abuses faced by women and girls throughout their lifetime put them at risk of HIV and AIDS and impedes their access to potentially life-saving treatment, care and support. Women and girls may face many different human rights violations, including rape and domestic violence, other forms of sexual violence and coercion, unequal property and inheritance rights, laws on divorce and child custody that exacerbate women's dependency on their husbands and discriminatory barriers to education, health care and other social services. HRW has documented these violations in a number of reports, including the following:1
Hidden in the Mealie Meal: Gender Based Abuses and Women's HIV Treatment in Zambia, 2007
No Bright Future: Government Failures, Human Rights Abuses and Squandered Progress in the Fight against AIDS in Zimbabwe, 2006
Positively Abandoned: Stigma and Discrimination Against HIV-Positive Mothers and their Children in Russia, 2005
A Test of Inequality: Discrimination Against Women Living with HIV in the Dominican Republic, 2004
Deadly Delay: South Africa's Efforts to Prevent HIV in Survivors of Sexual Violence, 2004
Just Die Quietly: Domestic Violence and Women's Vulnerability to HIV in Uganda, 2003
Double Standards: Women's Property Rights Violations in Kenya, 2003
Suffering in Silence: The Links between Human Rights Abuses and HIV Transmission to Girls in Zambia, 2003
HRW welcomes the prohibition on harmful practices that expose individuals to the risk of HIV infection. Many of these discriminatory practices aim to restrict women and girls' autonomy, especially in the expression of their sexuality. The legislation should send a clear message that such practices cannot be tolerated or justified in the name of culture and tradition.
HIV Testing
HRW is however concerned that the current draft of the act contains provisions that mandate compulsory testing in a number of circumstances: of pregnant women; persons charged with sexual offences; sex workers; and persons in polygamous unions. Mandatory HIV testing violates fundamental rights to privacy and bodily integrity protected by international treaties to which Malawi is a party. International guidance, including by the World Health Organization (WHO) and the Joint United Nations Programme on HIV/AIDS (UNAIDS) has thus explicitly rejected all forms of mandatory and compulsory HIV testing, and made plain that HIV testing should be voluntary, stating that
The conditions of the '3Cs', advocated since the HIV test became available in 1985, continue to be underpinning principles for the conduct of HIV testing for individuals. Such testing of individuals must be:
We are further concerned that draft mandatory testing provisions will threaten the health of those tested, without actually protecting the health of third parties, which we understand is the rationale of such testing.
Mandatory testing of pregnant women, for example, undermines women and girls' rights to equality, as set out in various international conventions, and potentially exposes them to the risk of intimate partner violence and abandonment by male partners and families. (In this regard, see HRW reports, 'Hidden in the Mealie Meal' and 'Just Die Quietly').
Testing of partners in polygamous unions will likely have a disproportionate impact on women, and again may potentially expose them to the risk of abuse, including intimate partner violence and abandonment and divorce. It is also important to note that there is currently little research that conclusively demonstrates that partners in polygamous unions are at higher risk of HIV infection than those in non-polygamous unions.
Mandatory testing of persons charged with sexual offences could actually undermine a rape survivor's ability to make informed decisions about his or her health. Instead of protecting rape survivors, such provisions could do harm by providing misinformation about the alleged offender's status. A negative HIV test does not conclusively establish that the person who committed an assault is not HIV-positive because some alleged offenders might be tested during the "window period," when an HIV test does not detect infection because HIV antibodies are not yet present in an infected person's blood. A negative test also will be misleading if an alleged offender is not the actual perpetrator of the assault. In either case, a survivor might be inclined not to obtain HIV post-exposure prophylaxis (PEP) because of a misleading negative HIV test of the accused. Second, many alleged offenders are not apprehended within the time period during which PEP needs to be initiated to be effective, which would make the information about HIV status irrelevant for preventing HIV infection of the victim. Mandatory testing of alleged offenders also threatens the fundamental rights of criminal suspects.
HRW would therefore recommend that the Commission remove any reference to compulsory or mandatory testing.
HRW is concerned that the proposed law does not contain any provisions relating to the testing of children, although it does state that HIV test results may be disclosed to the parent or legal guardian of a minor, defined as a child below the age of 14 years. HRW is concerned that, should the law not specify how children can access HIV testing, and thereafter treatment, care and support, many children who do not live with parents or legal guardians will be exposed to violations of their rights to health, access to information and equality and non-discrimination. HRW recommends that the proposed law state that children above the age of 14 years be permitted to consent to an HIV test, without parental consent, if they are mature enough to understand the consequences of such a decision. This provision may be of particular importance for girls who have been sexually assaulted and who will need to undergo an HIV test prior to commencing HIV PEP.
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