Eliezer Wangulu
29 September 2008
opinion
Nairobi — HIV is a virus, not a crime, stated celebrated HIV and Aids activist and South African judge Edwin Cameron, who is living with HIV.
Mr Justice Cameron went on to enumerate 10 good reasons why criminalising HIV infection was ineffective. The activist was addressing a plenary session at the Aids 2008 conference in Mexico last month.
He said criminalisation of HIV is a poor strategy in the regulation of infection and transmission, since, he argued, there is "no public health rationale for invoking criminal law sanctions against those who unintentionally transmit HIV or expose others to it."
He cited criminal cases involving HIV transmission in Bermuda, Sierra Leone, Switzerland, Texas and Zimbabwe and said that although he understood that public health officials might want to establish laws to address people who recklessly spread HIV, criminalisation is only ideal in cases where a person living with HIV and aware of his or her status sets out to infect another person with the virus and succeeds to do so.
Like many at the conference, Mr Justice Cameron was against application of criminal law because it has never succeeded anywhere.
Since 2004, six countries have enacted or proposed laws that criminalise HIV exposure or transmission.
They include Albania, Moldova, Montenegro, Kyrgystan, Serbia and Turkey. Poland, Kyrgystan and Serbia can now be added to the list of countries that have prosecuted at least one individual for HIV exposure or transmission.
Austria, Sweden and Switzerland remained at the top of the prosecutions league table. Mr Justice Cameron cited Kenya as one of those countries that had come up with such laws.
The embarrassment this caused to some Kenyans attending the conference was evident. An HIV activist from the country was heard lamenting after the presentation: "We were against the drafting of the law by junior lawyers without the involvement of stakeholders.
Now see the embarrassment this is causing the country." It became clear at the conference that since 2005, Central and West African countries have come up with national HIV-specific criminal exposure and transmission laws that would make the region one of the most legislated in the world for HIV.
Benin, Guinea, Guinea-Bissau, Mali, Niger, Sierra Leone and Togo have passed laws in quick succession and more western, central and southern African countries are taking after them, including Angola, DRC, Madagascar, Malawi, Tanzania and Uganda.
UNAids has urged governments to limit criminalisation to cases of intentional transmission. In other instances, the application of criminal law should be rejected by legislators, prosecutors and judges.
The UN agency adds: "In particular, criminal law should not be applied to cases where there is no significant risk of transmission or where the person did not know that she or he was HIV positive, did not understand how HIV is transmitted, disclosed his or her HIV positive status to the person at risk or honestly believed the other person was aware of his or her status through some other means."
In an attempt to counter the growing trend of criminalising HIV exposure and transmission, UNAids came up with a policy brief that strongly argues against all prosecutions for HIV exposure or transmission with the exception of cases of intentional transmission.
The paper states that "there are no data indicating that the broad application of criminal law to HIV transmission will achieve either criminal justice or prevent HIV transmission. Rather, such application risks undermining public health and human rights."
UNAids advocates alternatives to criminal sanctions to be explored arguing that "instead of applying criminal law to HIV transmission, governments should expand programmes which have been proven to reduce HIV transmission while protecting the human rights both of people living with HIV and those who are HIV negative."
Such measures include creating more awareness on the pandemic, promoting activities that lead people to avoid exposure to HIV, increased access to voluntary HIV testing and counselling and addressing HIV-related stigma and discrimination.
Positive prevention programmes are also critical as they empower people living with HIV (PLWHIV) to voluntarily disclose their positive status and avoid new sexually transmitted infections (STIs).
Other initiatives by governments should include strengthening and enforcing anti-rape laws and other forms of violence against women (VAW) and children, enhancing the efficiency of criminal justice systems to effectively deal with sexual offences against women and children and support women's equality and economic independence since poverty, especially among women, is one of the key drivers of the pandemic.
These public health and legislative measures are critical for governments in their endeavour to realise their commitments to preventing new HIV infections and providing ARVs for all their citizens that require them.
Most of these activities should target communities in the villages, informal settlements, schools, hospitals and workplaces. Those are the HIV and Aids battlefields and not courts of criminal justice!
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