2021 in review: more successes, more challenges, much more to do

This past year we’ve been challenged yet again due to the COVID-19 pandemic. As well as the impact on each of us, personally, the legal and policy decisions relating to its control – and their enforcement – have significantly impacted people living with HIV who are already criminalised or otherwise marginalised, which we have been continuing to highlight in our HIV Justice Weekly newsletter.

And as COVID-19 continues to dominate not only policymaking and law enforcement activities, but also media headlines, it seems very likely that relying primarily on media reports to document unjust cases of HIV criminalisation underestimates how many people are affected.

This past year we documented 54 media reports of unjust HIV criminalisation cases in 20 countries. This compares to 91 cases in 25 countries last year, which was still fewer than reported in previous years.

Although this could be seen as a cause for celebration, I fear that the reason we are seeing fewer media reports is not because of fewer cases, but because the media is distracted by COVID-19 and just isn’t reporting on them. For example, we only recorded one media report of a horribly unjust case in Belarus in January 2021 but on World AIDS Day 2021 the official Telegram account of Investigative Committee of Belarus reported that there had actually been 34 HIV-related criminal cases in 2021.

After Belarus, the highest number of case reports came from Russia, where it was also reported that over the past five years, Russian courts have acquitted only one defendant under its problematic HIV-specific criminal law. The United States, Canada and France make up the rest of the top five. Alarmingly, women living with HIV were accused in 33% of all reported cases in 2021, up from 25% last year.

We will be providing a much more detailed analysis of laws and cases – and the remarkable advocacy successes and achievements – in the next edition of our Advancing HIV Justice progress report, covering January 2019 – December 2021, which we plan to publish by the end of the first quarter of next year.

Despite the impact of COVID-19 on our ability to organise – and a growing acceptance of punitive approaches to a public health issue – this year we’ve also seen some remarkable advocacy in the global movement to end HIV criminalisation, none more so than across the United States.

In March, both Georgia and Virginia modernised their HIV criminalisation laws and in June and July Nevada and Missouri did the same. And in July Illinois completely repealed its outdated and unjust HIV-specific criminal law, becoming only the second US state ever to do so. In October, New Jersey’s Acting Attorney General issued science-informed prosecutorial guidance to limit the overly broad application of its HIV criminalisation law, and in December, on World AIDS Day, President Biden became the first-ever government leader to speak out against HIV criminalisation laws whilst in office. The year ended on a high with proposals to modernise HIV criminalisation laws in Florida and on a federal level.

The remarkable successes in the United States didn’t happen overnight – the movement to end HIV criminalisation has been nurtured – and increasingly better funded – for more than a decade. This is why our focus has turned to other parts of the world – notably Eastern Europe and Central Asia, sub-Saharan Africa, Latin America and the Caribbean – where many challenges remain.

In May, a new parliamentary bill in Ukraine proposed expanding its already problematic HIV-specific criminal law with harsher sentences for transmitting all serious communicable diseases, and Uganda passed a new Sexual Offences Bill with horrendous implications for people living with HIV, gay men and sex workers. Fortunately, neither have been enacted into law, yet.

We also saw advocacy successes in these regions, too. In Uganda, after five years of waiting, the Constitutional Court of Uganda has finally begun to hear a landmark case challenging the overly broad and draconian provisions of its HIV and AIDS Prevention and Control Act. In Mexico, the ‘danger of contagion’ law used by many Mexican states to prosecute people living with HIV was found to be unconstitutional by a court in the federal district of Mexico City, with proposals for its full repeal presented in November. Also in November, the Committee on the Elimination of Discrimination against Women (CEDAW) recommended the removal of Kyrgyzstan’s HIV-specific criminal law, thanks to a powerful shadow report by our HIV JUSTICE WORLDWIDE partners, the Eurasian Women’s Network on AIDS.

There is still so much more to do, however. That’s why, for example, we produced a brand-new section of our HIV Justice Toolkit specifically to help defend people living with HIV who are prosecuted for breastfeeding, chest feeding or comfort nursing, and why HIV JUSTICE WORLDWIDE launched a briefing paper and video in October to help advocates understand the complexities – and consequences – of molecular HIV surveillance.

Despite these successes, as well as the many milestones the HIV JUSTICE WORLDWIDE movement has achieved since its launch in 2016, we will not rest until everyone living with HIV in all their diversity is treated equally, fairly, and justly by all actors of the criminal legal and public health systems.

Commentary: An International Pandemic Treaty Should Centre on Human Rights

Published on 10 May 2021 in: The BMJ

The proposed International Pandemic Treaty could be undermined by political posturing and national protectionism—or it could be an opportunity to chart a different global future based on human rights. Those in charge of drafting the treaty must begin with a clear look at the grave abuses that have characterized the COVID-19 pandemic: authoritarian power grabs; continuing monopolies in diagnostics, therapeutics, and vaccines; failure to resource health systems; staggering setbacks for women; and an upsurge in violence, including covid-related hate crimes. Poorer and marginalized communities have borne the heaviest burden of policing; unemployment; and lack of food, health services, and security.

States have all-too-easily sidelined the international human rights framework under cover of emergency responses. This cannot continue. Any treaty should address these key issues:

The right to health—Most of the world lacks COVID-19 diagnostics, medicines, and vaccines. A new treaty should uphold the right to physical and mental health, and acknowledge the right of everyone to the benefits of scientific progress and its applications, including through intellectual property waivers.

An end to weaponizing pandemics—Any new treaty should protect individuals from threat of criminal sanctions linked to infection and reaffirm the Siracusa Principles, which set out clear limits on restrictions of rights during an emergency.

Workers’ rights are human rights—Workers who gave the most in 2020 were protected the least. States should ensure the physical security of health care workers, community health workers and other essential workers, and respect their right to form and join trade unions. Informal sector workers should have the right to continued employment or social security.

Combat gender inequalities—The pandemic has placed a disproportionate burden on women as healthcare professionals, educators, and caregivers; as well as on transgender people and sex workers. States should prioritize social protection, including childcare and sexual and reproductive health services, as well as prevention and response to gender-based violence.

Uphold rights in the digital age—Digital health has boomed during covid-19. A treaty should address the need for universal access to the internet and digital technology, while upholding rights to digital privacy and non-discrimination, and promoting strict regulation of use of health data.

Transparency and trust—The COVID-19 response has been weakened by corruption. A pandemic treaty should ensure states publish detailed information about budgets, expenditures, and procurement on a live portal; as well as the evidence basis for restrictive measures such as lockdowns; and for diagnostics, therapeutics and vaccine approvals. The International Health Regulations require information-sharing about outbreaks: this has been impeded by states silencing whistleblowers. Any treaty must reaffirm the rights to freedom of expression and opinion.

Accountability and community—Any new treaty should not undermine existing human rights. Human rights obligations related to pandemics should be independently monitored by a multi-stakeholder oversight body that meaningfully incorporates civil society. Community expertise and leadership are vital to effective pandemic response: any treaty should recognize, fund, and enable safe environments for community and civil society at all levels.

The COVID-19 pandemic starkly widened inequalities. We must seize this opportunity to reassert the principle of human equality, which must never be compromised; draw on lessons learned from the past year, and chart a better future.

Co-authors: Sara (Meg) Davis is senior researcher, Global Health Centre at the Graduate Institute of International and Development Studies, Geneva, Switzerland. Philip Alston is professor, New York University School of Law and former UN Special Rapporteur on Extreme Poverty and Human Rights, New York, USA. Joseph J. Amon is Clinical Professor and Director of the Office of Global Health at Dornsife School of Public Health, Drexel University, Philadelphia, USA. Edwin J. Bernard is executive director, HIV Justice Network in Amsterdam, the Netherlands. Sarah M. Brooks is programme director, International Service for Human Rights in Geneva, Switzerland. Gian Luca Burci is professor in the International Law Department of the Graduate Institute of International and Development Studies, Geneva, Switzerland. Naomi Burke-Shyne is executive director, Harm Reduction International, in London, UK. Georgina Caswell is programme manager, Global Network of People Living with HIV in Cape Town, South Africa. Mikhail Golichenko is senior policy analyst, HIV Legal Network in Toronto, Ontario, Canada. Anand Grover is director, Lawyers Collective and the former UN Special Rapporteur on the Right to Physical and Mental Health in Mumbai, India. Sophie Harman is professor at the School of Politics and International Relations, Queen Mary University of London, in London, UK. Lu Jun is director of Beijing Yirenping Center in Beijing, China. Rajat Khosla is senior director of research, advocacy and policy at Amnesty International, London, UK. Kyle Knight is senior researcher, Human Rights Watch, Durham, NC, USA. Allan Maleche is executive director, Kenya Ethical and Legal Issues Network on HIV and AIDS (KELIN), Nairobi, Kenya. Tlaleng Mofokeng is UN Special Rapporteur on the Right to Physical and Mental Health. Moses Mulumba is executive director, Center for Health, Human Rights and Development, in Kampala, Uganda. Sandeep Nanwani is chief medical officer, Yayasan Kebaya in Yogyakarta, Indonesia. Mike Podmore is director, STOPAIDS in London, UK. Dainius Puras is a professor at Vilnius University and former UN Special Rapporteur on the Right to Physical and Mental Health in Vilnius, Lithuania. Nina Sun is deputy director, Global Health and assistant clinical professor at the Dornsife School of Public Health, Drexel University, Philadelphia, USA. Nerima Were is deputy director, Kenya Ethical and Legal Issues Network on HIV and AIDS (KELIN), Nairobi, Kenya.

Editorial: “Leave no-one behind” when working to end HIV criminalisation

An editorial published to coincide with Zero Discrimination Day (March 1) by leaders in the HIV Justice movement celebrates “the courage and commitment of the growing global community of advocates, human rights defenders and others around the world who are challenging laws, policies and practices that inappropriately and unjustly criminalize people living with HIV”, but warns that this work must include and benefit those populations who are the most marginalised, and who remain most vulnerable to prosecution, despite advances in HIV science that are being used to challenge and modernise these laws.

Writing in the Journal of the International AIDS Society, the authors – who include HJN’s Executive Director, Edwin J Bernard; HJN’s Supervisory Board member, Michaela Clayton; and HJN’s Global Advisory Panel member, Edwin Cameron, along with Chris Beyrer, Desmond M. Tutu Professor of Public Health and Human Rights at the Johns Hopkins Bloomberg School of Public Health and GNP+’s Alexandra Volgina – note that despite many advances in the science of HIV there remains one area that is still an “all too common a threat to the lives and wellbeing of people living with HIV, as well as to the goal of ending the epidemic” – HIV criminalisation.

HIV criminalisation describes the unjust application of criminal and similar laws to people living with HIV ostensibly based on their HIV status, either via HIV‐specific criminal statutes or general criminal or other laws.

Citing data collated from HJN’s global case monitoring which suggests that HIV criminalisation intersects with “discrimination or criminalization on the basis of ethnicity, sex, gender identity, immigration status, sex work, sexuality and/or substance use,” they note that HIV criminalisation can be seen as a “surrogate marker for state‐sponsored stigma and discrimination against marginalized groups of people at higher risk of HIV.”

The editorial also addresses public health and healthcare workers who are often viewed as an extension of the criminal justice system by marginalised populations. “We are also seeing a frightening trend of prosecutions being initiated by those working in healthcare or public health without specific complaints. In some cases, police were notified of a person’s HIV diagnosis by health authorities, which then became a prompt to investigate the person’s relationship with their partner.”

Relatively few countries have repealed or modernised their laws, although efforts are currently underway across the globe, assisted by the 2018 publication of the Expert consensus statement on the science of HIV in the context of criminal law authored by 20 of the world’s leading HIV scientists, including Professor Beyrer.

The editorial celebrates and encourages the growing number of global advocates, human rights defenders and others around the world who are challenging HIV criminalisation but notes that everyone involved in the HIV response needs to play their part. “Ending HIV criminalization is the responsibility of us all,” they argue.

“It is important that we all understand how to ensure justice for all people living with HIV, not just those who have access to treatment and are fortunate enough to be undetectable,” they conclude, “so that we can finally end these outrageously unjust laws, policies and practices against people living with HIV in all of their diversity.”

Year in review: Celebrating successes, highlighting the many challenges ahead

This past year has shown us what happens when one pandemic – HIV – is overshadowed by another pandemic, COVID-19. Despite the many lessons learned from our collective advocacy against HIV criminalisation that we and our HIV JUSTICE WORLDWIDE partners highlighted in March, these lessons were mostly ignored by policymakers around the world.

The result was a series of knee-jerk legal, policy and police responses leading to the overzealous policing of people living with HIV and other key and inadequately served populations already subject to existing inequalities in law and policy, which we have been highlighting in our HIV Justice Weekly newsletter since March.

This latest pandemic overshadowed, and in some cases undermined, the work we and others have been doing to ensure a fair, just, rational and evidence-based response towards people living with HIV by the criminal justice system.

This past year we documented at least 90 cases of unjust HIV criminalisation in 25 countries, with Russia and the United States being the worse offenders. Women living with HIV were accused in 25% of those cases. Three of these cases were for breastfeeding. In the United States, more than 50% of those accused in HIV criminalisation cases were people of colour.

2020 also saw Poland passing a new law against COVID-19 that also increased the criminal penalty for HIV exposure, and number of disappointing HIV criminalisation higher court appeals in the US (Ohio), and Canada (Ontario and Alberta) that appeared to ignore science over stigma.

And yet, despite the many difficulties of 2020, the movement to end unjust HIV criminalisation has continued to gain momentum.

In the United States, Washington State modernised its HIV-specific criminal law in March, reducing the ‘crime’ from a felony to a misdemeanour, adding in a number of defences, and eliminating the sex offender registration requirement. Earlier this month, legislators in Missouri published plans to modernise its HIV-specific criminal law next year.

In Europe, Sweden abolished the legal requirement to disclose HIV status in March, the Spanish Supreme Court set an important precedent for HIV criminalisation cases in May, and in June, Scottish police ended the stigmatising practice of marking people living with HIV as ‘contagious’ in their database.

In Francophone Africa, HIV-specific criminal law reform in Benin and across the region is looking likely thanks to a recognition that existing laws do not reflect up-to-date science.

And in Eastern Europe and Central Asia, a process to completely abolish the draconian HIV-specific criminal law in Belarus has begun.

There is still so much more to do, however. Despite these successes, as well as the many milestones the HIV JUSTICE WORLDWIDE movement has achieved since its launch in 2016, we will not rest until everyone living with HIV in all their diversity is treated equally, fairly and justly by all actors of the criminal justice system.

We Are People, Not Clusters! Why public health surveillance using blood taken for HIV resistance testing risks doing more harm than good

by Edwin J Bernard, HJN’s Executive Director

A series of articles and editorials in the October 2020 issue of the American Journal of Bioethics published last Friday examine a growing concern amongst community leaders of people living with HIV and our scholarly allies: the use of blood taken from people living with HIV during routine testing prior to starting or changing antiretroviral therapy in surveillance databases, without our permisssion, for public health purposes.

This is already taking place across the United States and in some Canadian provinces, and is currently being considered elsewhere in the world.

The rollout of so-called ‘molecular HIV surveillance’ to identify ‘clusters’ of transmissions to attempt to further improve public health responses to HIV is a growing source of anxiety and concern for people living with HIV in the US and Canada, especially for people who are already marginalised and criminalised in other ways, because they can’t be certain that this data won’t be shared with law enforcement or immigration authorities, which can lead to prosecution and/or deportation.

Coming to Facebook Live on 30th September – HIV Justice Live! Whose Blood is it, Anyway? Like or follow us on Facebook to watch and participate in the first of our new interactive webshows, which will focus on molecular HIV surveillance.

In our lead guest editorial, entitled ‘We Are People, Not Clusters!’ which I co-authored with Alexander McClelland, Barb Cardell, Cecilia Chung, Marco Castro-Bojorquez, Martin French, Devin Hursey, Naina Khanna, Brian Minalga, Andrew Spieldenner, and Sean Strub, we support the concept of “HIV data justice” put forth in the lead target article, by Stephen Molldrem and Anthony Smith, Reassessing the Ethics of Molecular HIV Surveillance in the Era of Cluster Detection and Response: Toward HIV Data Justice.

“HIV data justice draws on the collective resources of the HIV/AIDS movement to build new alliances aimed at providing affected individuals and communities with greater control over how their data are utilized in the healthcare system, with the paired aim of providing them with greater access to better services on terms of their own choosing.”

Molldrem and Smith

In the editorial, we welcome Molldrem and Smith’s critique of the controversial rollout of molecular HIV surveillance (MHS) in the United States, which explores three intersecting concerns:

(1) the non-consensual re-purposing of personal health information and biomaterial for public health surveillance;

(2) the use of molecular HIV surveillance data in larger databases to find ‘clusters’ of infections and to make determinations about transmission directionality, and the criminalising implications that follow such determinations; and

(3) the way MHS amplifies the targeting and stigmatisation of already oppressed and marginalized communities.

The editorial questions the rationale behind the use of MHS as one of four pillars of the US Centres for Disease Control (CDC) End The Epidemic (ETE) Plan and calls for the abolition of molecular HIV surveillance in the United States as it is currently being rolled out by the CDC because it blurs the boundaries between consent and criminalisation.

Instead, we envision a future of new participatory and intersectional racial and viral justice possibilities, one which ensures the lives, voices, self-determination, and autonomy of people living with HIV are central to HIV research and public health practice.

Further reading

Bryn Nelson. Questioning the Benefits of Molecular Surveillance. POZ Magazine, July-August 2020.

HIV criminalisation still an issue during COVID-19 pandemic

On 21 February, just prior to the start of the COVID-19 pandemic, we celebrated a week where – for the first time in years – we saw no reported cases of HIV criminalisation anywhere in the world.

Soon after we began to notice fewer reports of HIV criminalisation cases and fewer articles related to our collective advocacy. We wondered at the time whether this may be due, in part, to our previous advocacy successes, athough we thought it was more likely a reflection of the media and the criminal justice system changing their focus to COVID-19.

Certainly, police have been unbelievably busy dealing with ensuring lockdowns and quarantines are followed – some more zealously than others – and courts, as well as parliaments are either closed or dealing only with the most urgent of cases. This is having a concerning impact upon the processing of HIV criminalisation cases, including appeals, leaving those unjustly accused or convicted in limbo and at greater risk of acquiring COVID-19 whilst on remand or in prison.

Now, after several weeks of seeing no HIV-related criminal cases, this past week we have, unfortunately, documented two further HIV-related arrests – a woman in the Rostov region of Russia is accused of passing on HIV to her husband and faces five years in prison; and a man in Louisiana in the United States was arrested after allegedly spitting on an officer and then charged with “intentional exposure to the AIDS virus” after he informed medical staff of his HIV-positive status.

The US news report notes – without obvious irony – the Kafkaesque nature of the law in Louisiana by concluding:

While saliva alone cannot transmit HIV or AIDS, Louisiana law holds that knowingly infected people who spit at first responders can face up to 11 years in prison and/or pay a $6,000 fine.

This week, we also saw a remarkably comprehensive article about HIV criminalisation in Tajikistan, which explored how and why the country’s criminal code potentially considers every HIV-positive citizen to be a criminal, what this means for people living with HIV in the country, and how to avoid prosecution as well as ways to organise.

Finally, some good news relating to HIV criminalisation as well as to COVID-19 criminalisation.

In Spain, the Supreme Court upheld the acquittal of a man accused of criminal HIV transmission noting that evidence pointed to the complainant being aware of his status prior to agreeing to condomless sex, meaning there was consent.

And in Malta, where it was proposed earlier in the week to add COVID-19 to the list of communicable diseases covered by the law used to criminalise the wilful or negligent spread of HIV and hepatitis, this proposal has since been put on hold, due to very real concerns that this may do more harm than good for public health, as well as create difficulties around proof in court.

The Times of Malta reports:

The law could also strain the already stretched law enforcement resources if they suddenly had to deal with a flood of reports over possible criminal spreading of the virus.

“In essence, this seems like a good idea at first glance but it presents a number of problems,” one government minister privy to the discussions said.

The possibility of such a reform had not even been brought before Cabinet yet, he said, adding he understood it “has been put on the back burner for now”.

“We have bigger fish to fry, right now.”

If only other punitive-minded governments – and overly-zealous law enforcement officers – around the world thought this way about COVID-19 and other communicable diseases right now, including, of course, HIV.

HIV criminalisation high on the agenda at AIDS 2018

Starting today, thousands of activists, scientists, media and others working in the HIV sector will descend upon Amsterdam for the 22nd International AIDS Conference (AIDS 2018).

For those of you able to be in Amsterdam make sure you don’t miss all the amazing HIV criminalisation events taking place before and during the conference.

Download and print this 2-page pdf covering the HIV criminalisation highlights (including pre-conferences, posters and Global Village events) put together by the HIV Justice Network on behalf of HIV JUSTICE WORLDWIDE.

STOP PRESS: For the first time since Edwin Cameron’s call to action at AIDS 2008 in Mexico City, HIV criminalisation is on the agenda during a main morning plenary session, ‘Breaking barriers of inequity in the HIV response’ on Tuesday 24th July.

HIV criminalisation survivor, and Sero Project Assistant Director, Robert Suttle, and KELIN’s Executive Director, Allan Maleche, will speak from 9.30am about, ‘Putting HIV science into the criminal justice system: Impacting lives’.

As well as highlighting the impact of HIV criminalisation on individuals, the session will alert AIDS 2018 delegates to the forthcoming ‘Expert Consensus Statement on the Science of HIV in the Context of Criminal Law’ that will be published on Wednesday 25 July 2018 at 3.15pm in the Journal of the International AIDS Society (JIAS).

The Expert Consensus Statement was authored by a global panel of leading scientists, supported by IAPAC, IAS and UNAIDS in consultation with HIV JUSTICE WORLDWIDE.

It is expected to be a key reference for clarifying important issues of HIV science in the context of criminal law and is aimed at expert witnesses, but likely to be useful for police, prosecutors, lawyers, judges, lawmakers and advocates.

You will be able to find out more about the Expert Consensus Statement, including what it means for HIV criminalisation advocacy, on Wednesday after 3.15pm Amsterdam time, by visiting http://www.hivjusticeworldwide.org where it will be highlighted on the front page.

And of course, we hope to see you at HIV JUSTICE WORLDWIDE’s one day conference this Monday July 23rd, Beyond Blame 2018: Challenging HIV Criminalisation.

Download the Beyond Blame 2018 final programme.

Only a few places remain, so register now if you want to attend.

Otherwise you can watch the entire meeting live on the HIV JUSTICE WORLDWIDE YouTube channel and Tweet any comments or questions using the hashtag #BeyondBlame2018.

You can also the follow these other HIV criminalisation hashtags:

#HIVJUSTICEWORLDWIDE
#HIVCrim
#HIVIsNotACrime
#AIDS2018
#BringScienceToJustice

We Love Positive Women #lovepositivewomen

We Love Positive Women!

This is a love letter from the HIV Justice Network to the more than 18,000,000 women living with HIV in the world today.

The HIV Justice Network exists to end the inappropriate use of the criminal law to regulate and punish people living with HIV.

On this Valentine’s Day, we are thinking of the thousands of positive women in all of our diversity, inclusive of transgender women, who are currently incarcerated in jails, prisons, and detention centres.

We send love and support to all of the women living with HIV who have survived incarceration around the world.

We highlight the reality that many positive women who are incarcerated around the world are criminalised because of punitive and discriminatory laws on sex work, drug use, LGBT relationships, domestic violence, and HIV status. These laws serve no public health benefit yet lock people away from their homes, families, and communities.

Women living with HIV are actively fighting for justice and against discriminatory legal systems. Positive women have often led the way in the struggle against HIV criminalisation.

We ask everyone to take a quiet moment to send respect and appreciation to these accomplished and dedicated women.

We are you and you are us.

The HIV Justice Network is proud to support the Love Positive Women campaign developed and led by International Community of Women Living with HIV (ICW), one of seven founding partners of HIV JUSTICE WORLDWIDE.

After two years of our coalition, we’re really getting somewhere: here’s to even more HIV JUSTICE WORLDWIDE in 2018! by Edwin J Bernard Global Co-ordinator, HIV Justice Network / HIV JUSTICE WORLDWIDE

In September, three HIV JUSTICE WORLDWIDE founding members – Laurel Sprague, Executive Director of the Global Network of People living with HIV (GNP+), Lynette Mabote, Regional Programmes Lead at ARASA and I – presented at the Funders Concerned About AIDS (FCAA) Philanthropy Summit in Washington DC on the worldwide movement to end HIV criminalisation, alongside our key partner, Luisa Cabal, Special Adviser on Human Rights and Gender at UNAIDS. The session was chaired by Sergey Votyagov, Executive Director of the Robert Carr civil society Networks Fund, which funds the HIV JUSTICE WORLDWIDE (HJWW) coalition.

As you can see from the video of our session, we were already pretty proud of our achivements to date, but the last few months of 2017 have seen some remarkable advances in HIV justice.

Hot on the heels of the modernisation of the HIV criminalisation law in California (advocated for by our in-state partners, Positive Women’s Network-USA), we saw the emergence of a new national network of Mexican anti-criminalisation advocates (supported by SERO, and funded through the HJWW coalition) and an immediate victory with a lawmaker’s U-turn in Quintana Roo state. (Watch a short video about the meeting and its impact here.)

And in Canada, following years of advocacy from our key partner, the Canadian HIV Legal Network and their allies in the Canadian Coalition to Reform HIV Criminalisation, it was announced by Federal and Provinicial ministers on World AIDS Day that – finally! – the latest science relating to the prevention benefit of HIV treatment should be taken into consideration when prosecuting alleged HIV non-disclosure: an important, but modest advance. There is a now a call for both a moratorium on all HIV-related prosecutions and a review of existing convictions and for a more radical overhaul of Canada’s framing of HIV non-disclosure as aggravated sexual assault.

But perhaps our proudest moment of 2017 was HJWW’s financial and technical support that led to the galvanising of (mostly) women activists in Malawi, who managed to persuade lawmakers to remove all of the problematic provisions of the HIV/AIDS (Prevention and Management) Bill, including provisions to make HIV testing and treatment mandatory for select populations on a discriminatory basis, and provisions that would have criminalised negligent, reckless and intentional HIV exposure and transmission. You can read the press release from some our HJWW partners (ARASA, GNP+ and SALC) amongst others, but to really understand the power of these women, go over to Twitter to watch some short videos here and here of their advocacy messaging to parliamentarians.

And speaking of amazing women, please visit the IAS website, where for Human Rights Day (December 10) they highlighted an interview with Ugandan nurse, Rosemary Namubiru, who was wrongfully accused of exposing a child to HIV whilst administering an injection. I was also asked to write an accompanying blog post which summarises the current state of HIV criminalisation around the world.

Finally, please check out our new HIV JUSTICE Toolkit, which will continue to expand in both scope and languages in 2018. It includes one of our latest videos, The Colorado Story, which explains how the law was modernised in that US state last year. Why not subscribe to the HIV JUSTICE WORLDWIDE YouTube Channel and be the first to be notified when we upload our next videos.

Wishing you all a safe and happy holiday season: here’s to even more HIV JUSTICE WORLDWIDE in 2018!

Letter demanding release of 13 individuals arrested during legal consultation in Tanzania

October 23, 2017

Hon. George Mcheche Masaju

Attorney General of the United Republic of Tanzania

Email: g.masaju@bunge.go.tz; ag@agctz.go.tz

Hon. Bahame T.M. Nyanduga

Chairperson, Commission for Human Rights and Good Governance

United Republic of Tanzania

Email: bahame.nyanduga@chragg.go.tz

Hon. Adv. Pansy Tlakula

Chairperson, African Commission on Human and Peoples’ Rights

Email: pansy.tlakula@gmail.com

Hon. Soyata Maiga

Vice- Chairperson, African Commission on Human and Peoples’ Rights

Email: cabinetsoya@afribone.net.ml; soyatam@yahoo.fr

Hon. Solomon Ayele Dersso

Commissioner, African Commission on Human and Peoples’ Rights

Email: Solomon.dersson@gmail.com

Hon. Dr. Asha-Rose Migiro

High Commissioner of the United Republic of Tanzania to the United Kingdom & Republic of Ireland

Email: Ubalozi@tzhc.uk

Hon. Irene F. Mkwawa Kasyanju.

Ambassador Extraordinary and Plenipotentiary & Permanent Representative to the OPCW

Email: contact@tanzaniaembassy.nl

Your Honourable Excellencies,

I am the Global Co-ordinator of the HIV Justice Network based in the UK and the Netherlands and working globally to end the inappropriate use of the criminal law in the HIV response. I am writing regarding the arrests recently carried out by the Tanzanian Police of thirteen individuals, including three lawyers and their clients.

On Tuesday, 17 October 2017, a legal consultation convened by the Initiative for Strategic Litigation in Africa (ISLA) and the Community Health Services and Advocacy (CHESA) was raided by the Tanzanian Police. The consultation was convened in order to get more instructions and evidence on a case that the two organizations planned to file before a court concerning a challenge to the government’s decision to limit the provision of certain HIV-related health services that it had previously provided.

Thirteen people, including two South African citizens, one Ugandan citizen, were detained including ISLA’s Executive Director, Sibongile Ndashe, and CHESA’s Director, John Kashiha. On Wednesday, the Regional Commissioner of police issued a press statement referring to the “arrests” and stated that twelve people who were promoting homosexuality had been arrested. On Friday 20 October 2017, bail previously issued was revoked for everyone for no apparent reason. They were advised that a fresh investigation process was starting and everyone was taken to custody.

The mischaracterization of a legal consultation where lawyers and their clients were discussing a very specific case to be referred to the court as “promotion of homosexuality” is unfortunate and worrying. The police had a copy of the concept note and the agenda of the consultation. Even more alarming is that three lawyers who were part of the group, including Sibongile Ndashe, were arrested together with their clients.

The Tanzanian Constitution enshrines the right to seek legal redress when fundamental rights have been violated (Art 30(3)). The African Charter on Human and Peoples’ rights, which Tanzania is a signatory to, also recognizes an individual’s right to an appeal to competent national organs against acts violating his fundamental rights as recognized and guaranteed by conventions, laws and customs in force (Art 7(a)). Tanzania is a signatory to a number of international human rights treaties that recognizes these and other related rights.

The arrest of the thirteen people mentioned above is an attempt to intimidate citizens from approaching judicial institutions when their rights have been violated. Furthermore, the arrest of lawyers while they are advising their clients on the steps to be taken to seek legal redress is clearly aimed at creating an environment where lawyers are afraid to provide legal representation and to ultimately create an environment where it is unthinkable to hold the state accountable for human rights violations.

We at the HIV Justice Network are strongly convinced that there is no legal basis for these proceedings, as demonstrated by the press statement released by the Regional Commissioner of police, and that the arrests are arbitrary and politically motivated.

Therefore, we call upon Tanzanian authorities to immediately release the thirteen individuals who are currently arbitrarily detained; to allow citizens to access legal representation without intimidation; to discontinue the ongoing persecution of human rights defenders, lawyers and their clients and refrain from such future actions; and to allow the foreign nationals, whose passports have been seized, to leave the country.

Your sincerely,

Edwin J Bernard

Global Co-ordinator,

HIV Justice Network

Download letter in pdf here: Letter demanding release of ISLA & CHESA consultation participants