Activists celebrate Malawi’s adoption of amended law that removes criminalising  transmission of HIV

Malawi Members of Parliament on Tuesday voted to reject coercive and criminalising provisions that threatened human rights in a long-deliberated HIV (Prevention and Management) Bill.

Sarai Chisala-Templehoff of the Women Lawyers Association (left): We are elated

Activists and people living with and affected by HIV celebrated outside Parliament after having protested for months against rights-infringing provisions in the HIV Bill, tabled earlier this year. The Bill, which had its origins in a 2008 Law Commission Report, included provisions to make HIV testing and treatment mandatory for select populations on a discriminatory basis, and provisions that would criminalise HIV exposure and transmission, amongst others.

Civil society and activists argued that these provisions would violate the Malawi Constitution, be at odds with international best practice, and compromise the country’s efforts to advance HIV treatment and prevention.

On Tuesday, Members of Parliament debated amendments to the Bill advanced by Members and its HIV Committee.

Minister of Health, Atupele Muluzi, urged Members to endorse these amendments when adopting the Bill, emphasizing that criminalising HIV had negative public health implications.

Parliament voted to support all the amendments proposed by the HIV Committee and, in addition, voted to delete a contentious provision relating to “deliberate infection” with HIV. After a second reading, the Bill was passed subject to these amendments.

“It is thanks to women activists who fought to have their voices heard that Parliament has recognised that abandoning human rights protections will only drive vulnerability to HIV,” said Sarai-Chisala Tempelhoff of the Women Lawyers Association (WLA Malawi).

“When the evidence tells us women and girls should be at the forefront of our response to HIV, it is important to understand the criminalisation would only increase the risk of violence and abuse that Malawian women face; strengthen prevailing gendered inequalities in healthcare and family settings; and further drive stigma, fear and discrimination around HIV.”

“Mandatory testing and treatment and criminalization of HIV transmission and exposure are counter-productive to reaching the goals of the HIV response in Malawi. We are glad our voices have been heard through the work of organisations like ICW Malawi, the Coalition of Women Living with HIV/AIDS (COWLHA), the Female Sex Workers Association, the Women Farmers Coalition and others. Human rights have prevailed today in Malawi.” said Clara Banya of the International Community of Women Living with HIV (ICW) Malawi.

“We are elated that Parliament has chosen to endorse a law based on evidence and reason and not on stigma and fear. It is people who are most marginalized in our society who would suffer most under coercive and criminalising laws – these are people who need society’s support, not punishment.” said Victor Mhango, Executive Director of the Centre for Human Rights Education, Advice and Assistance (CHREAA).

Gift Trapence, Executive Director of the Centre for the Development of People (CEDEP), agreed, “While we urgently need to embrace key populations to advance human rights and the HIV response in Malawi, the Bill was proposing to create further barriers. While the amended version adopted by Parliament does not speak to key populations directly, we must celebrate that at least it hasn’t added to the legal barriers as initially proposed.”

MacDonald Sembereka, Executive Director of the Mango Key Populations Network said, “As actors in the sector we urge for the prompt assent and implementation of the Act as it is long overdue.”

“We commend and support the incredible advocacy of Malawian civil society and women activists in particular who have refused to be silenced into accepting compromises on punitive laws and policies,” said Michaela Clayton, Director of the AIDS and Rights Alliance for Southern Africa (ARASA). “The role of human rights in an effective HIV response is as important now as it has always been.”

“While some provisions remain that are perplexing and of which we should remain wary (such as those placing duties on people living with HIV to adhere to treatment), Parliament’s acceptance of the amendments in the Act is a victory for citizens and supporters of human rights in Malawi who resisted efforts to enact the Bill in its original form at all costs,” said Annabel Raw, health rights lawyer at the Southern Africa Litigation Centre (SALC).

Laurel Sprague, Executive Director of Global Network of People Living with HIV (GNP+) said, “GNP+ applauds the remarkable community effort that focused on education, current science and best practices. Women living with HIV, sex workers, and women lawyers led the way in explaining why punitive laws harm the HIV response and ensuring that a human rights approach is at the centre of Malawi’s HIV response.”

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Jesus is Lord
Guest

Best way to reduce HIV – Leviticus 20:13.

Nachisale
Guest
STUPID thinking by our so-called activists. Sad their misguided arguments and positions have pushed parliament to agree on such a retrogressive bill. Mandatory HIV testing should have been good for Malawi if we are to fight the transmission of the virus and AIDS prevalence itself. What about people who knowingly infect others? Don’t others have the right to be protected from being infected. This is the problem with Malawi and Africa – we hide behind the veil of stupidity. Failing as it were to make tough but beneficial decisions because we do not want to face the truth. Innocent women… Read more »
Bodza la N\'nanu
Guest
Could someone enlight me on this lagislation that was voted to delete a contentious provision relating to “deliberate infection” with HIV – Article 43 which stated that wilful transmition of HIV would be a criminal offense. Would that mean a person who is aware of his HIV/Aids status and knowingly has a sexual encounter with another person without disclosing status and deliberately not using a condom and eventually the other person gets infection, and you mean no criminal charges? What about institutions such as hospitals where the unprofessional practices lead to infecting someone with HIV, eg through unscreen blood products,… Read more »
Salatiyere
Guest
Much as i may agree with the amendments but i have some what reservations on removing mandatory testing for pregnant women. My conviction is that the mandatory testing for pregnant women was in the best interest of the innocent un-born child. Much as you may talk of the rights of the pregnant woman on HIV testing that it should be voluntary then how about the rights of the un-born child of not contracting the HIV virus from his/her mother without his/her consent? This is where i have a problem with democracy, it goes by the majority rule while trying to… Read more »
Salatiyere
Guest
Much as i may agree with the amendments but i have some what reservations on removing mandatory testing for pregnant women. My conviction is that the mandatory testing for pregnant women was in the best interest of the innocent un-born child. Much as you may talk of the rights of the pregnant woman on HIV testing that it should be voluntary then how about the rights of the un-born child of not contracting the HIV virus from his/her mother without his/her consent? This is where i have a problem with democracy, it goes by the majority rule while trying to… Read more »
nachisale
Guest
Totally agree with you Salatiyele. Democracy consumes itself. The changes that have been made are BAD for Malawi. They have been made by selfish people who are very shortsighted. The original bill (2008) was there to curb HIV transmission, help treat those found HIV-positive, protect unborn children from contracting HIV from their mothers as well as prevent deliberate infection of innocent people (mostly women and girls) by promiscuous, selfish and careless people. Bingu`s government had a real commitment to eradicate HIV and AIDS. We’ve now gone BACKWARDS. Does surprise me Atupele Muluzi was the one presiding over the foolish changes… Read more »

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