Madagascar has an HIV-specific omnibus statute, Law No. 2005-040 On the fight against HIV/AIDS and the protection of the rights of people living with HIV/AIDS, which contains both protections for people living with HIV and HIV-related offences.
Article 67 criminalises transmission of HIV through ‘clumsiness, carelessness, inattention, negligence or non-compliance with regulations’. Although the circumstances in which this section apply are unclear, it appears to apply to both people living with HIV and medical professionals. The penalty provided includes six months to two years’ imprisonment accompanied by a fine, however the sentence is doubled if a healthcare professional or traditional healer commits the offence.
Although Article 10 states that people living with HIV should be ‘encouraged’ to disclose their status to partners, disclosure is not a legal requirement, and people who breach confidentiality requirements to disclose someone’s HIV status are liable to fine under Article 65. Under Article 64, discrimination against people living, or suspected of living, with HIV is also liable to fine.
To our knowledge, there have not been any reported cases of HIV criminalisation in Madagascar to date.
Act No. 2005-040 of 20 February 2006 on the fight against HIV/AIDS and the protection of people living with HIV/AIDS
Article 67. – In the event of transmission of HIV through clumsiness, carelessness, negligence or non-compliance with regulations, the offender is punished by imprisonment from 6 months to 2 years and a fine of 100,000 Ariary to 400,000 Ariary. The penalty shall be doubled if the said penalty was committed by a health personnel or a traditional healer.
Based on an analysis of the situation, the legal environment assessment report presents recommendations to improve the HIV response. They are articulated around the definition of institutional responsibilities, the implementation of support services and legislative reforms as well as the promotion of a favourable environment for key populations and infected and affected people.
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