Civil society statement on the proposed re-criminalisation of HIV in Zimbabwe

Download this statement as a pdf

In 2022, the Government of Zimbabwe was celebrated nationally and internationally for repealing the country’s HIV-specific criminal law, Section 79 of the Criminal Code.

When announcing the repeal in Parliament, Minister Ziyambi Ziyambi, Zimbabwe’s Minister of Justice, Legal and Parliamentary Affairs noted: “…the global thinking now is that that law stigmatises people living with HIV and studies have shown that it does not produce the intended results. What the ministry is going to do is to repeal that section of the law and ensure that we keep up to speed with modern trends in the world.”

HIV JUSTICE WORLDWIDE is shocked, saddened and extremely disappointed that only two years later, the Ministry of Justice, Legal and Parliamentary Affairs is now proposing to re-criminalise HIV by adding HIV to the list of sexually transmitted infections (STIs) currently criminalised in Section 78 of the Criminal Code.

That they are proposing to do so as part of the Criminal Laws Amendment (Protection of Children and Young Persons) Bill is both cynical and unwarranted. Amendments to the Criminal Code are meant to codify the Supreme Court decision on the age of consent to sex. Amending Section 78 of the Criminal Code to re-criminalise HIV is out-of-step with the 2021 Political Declaration on HIV/AIDS agreed on by UN Member States, including Zimbabwe. Of note, Section 80 of the Criminal Code already provides for aggravated sentencing in cases of exposure to HIV during “sexual intercourse or performing an indecent act with a young person.”

Section 78, like the repealed Section 79, criminalises anyone who “does anything or causes or permits anything to be done with the intention or realising that there is a real risk or possibility of infecting any other person with” syphilis, gonorrhoea, herpes and “all other forms of sexually transmitted diseases”. It is overly broad and extremely vague. 

Adding HIV to this already problematic provision would be a retrograde and harmful step backwards for the following reasons:

  1. Criminalisation does not prevent HIV or STI transmission. Communicable diseases – including those that are sexually transmitted – are public health issues, not criminal issues and criminalisation is not an evidence-based response to public health issues. As UNAIDS noted in its 2022 press release congratulating Zimbabwe for repealing the HIV criminalisation law: “The criminalisation of HIV transmission is ineffective, discriminatory and undermines efforts to reduce new HIV infections. Such laws actively discourage people from getting tested for HIV and from being referred to the appropriate treatment and prevention services.”
  2. The criminalisation of HIV and other STIs can violate human rights. Such laws and prosecutions threaten the rights of people living with HIV, and other STIs, to equality, freedom from discrimination, privacy, human dignity, health, liberty, and the right to a fair trial, amongst others. Based on the HIV Justice Network’s monitoring of how people living with HIV were prosecuted previously under Section 79, we believe that the criminal justice system is not well equipped to understand the science of exposure and transmission of HIV or other STIs and would therefore be unable to uphold principles of legal and judicial fairness, including the key criminal law principles of legality, foreseeability, intent, causality, proportionality and proof. Overly broad criminalisation of HIV and STIs means people with HIV or STIs risk being prosecuted and sent to prison instead of receiving care for their medical condition.
  3. The criminalisation of HIV and other STIs can increase stigma and harm public health. This is particularly so because prosecutions are often accompanied by highly stigmatising and inaccurate media reporting. By increasing stigma and driving people away from testing and healthcare services, criminalisation may therefore also prevent or delay people from accessing testing and treatment. Effective HIV and/or STI treatment not only allows people living with HIV or other STIs to lead longer, healthier lives, but also prevents HIV and STI transmission. 
  4. Criminalisation harms women. In Zimbabwe, as in many African countries, HIV criminal laws have been disproportionately applied against women living with HIV. Women are usually the first to know of their HIV status, often due to accessing testing during antenatal care. Being the first to test positive, women may be vulnerable to being falsely blamed for bringing HIV into the relationship. Women living with HIV are also vulnerable to violence and abuse in intimate relationships and the threat of prosecution only increases that vulnerability.

Rather than adding HIV to Section 78, this provision should be repealed. This would contribute to enhancing Zimbabwe’s HIV and STI response in line with a human rights-affirming approach to health that is mandated by the Constitution and recommended by public health and human rights experts internationally and regionally.

The Health Law and Policy Consortium agrees with the HJWW coalition:

Reintroducing the punitive criminalisation of  HIV transmission is counterproductive as it undermines national health objectives and the global target of ending HIV and AIDS by 2030. It will be tantamount to reenacting state endorsed stigma that will inevitably flow from the criminalisation. This amendment not only jeopardises the progress made through the successful repeal of Section 79 of the Criminal Law Codification and Reform Act, it threatens current efforts underway to prevent the spread of HIV as it reintroduces a driver for new infections of HIV. The proposed amendment creates a formidable legal barrier that will severely undermine full access to essential healthcare services. It will deter individuals from seeking regular HIV testing, adhering to HIV treatment and medication, and disclosing their HIV status to enable their sexual partners to take preventive measures such as PrEP.

Sonke Gender Justice also agrees with the above and adds the following:

It is Sonke’s considered view that the reintroduction of the impugned provisions providing for the criminalisation of HIV in Zimbabwe will harm rights of women. The amendment of Section 78 of the Criminal Code on sexually transmitted diseases to include HIV will bring back the narrative of unjust arrests and prosecutions. Under this new provision, women tested as HIV-positive will face prosecution and eventual violence. Criminalisation of HIV reinforces gender barriers to accessing treatment, care and support for women who test HIV-positive, driving them underground, unable to disclose their status to the detriment of family health resulting in infant HIV acquisition, ART non-adherence for both the mother and infant. Criminalisation of HIV impairs public health goals that seek to promote health rights of women leading to poor health outcomes and HIV related health disparities.

HJWW, HLPC and Sonke conclude that re-criminalising HIV, as well the existing criminalisation of STIs, is a threat to Zimbabwe’s HIV and SRHR response and to the rights, security and dignity of people living with HIV, particularly women living with HIV.

Section 78 is vague and overly broad and risks being applied in a way that is unjust and discriminatory. It will not prevent HIV or STI transmission, instead perpetuating stigma and misinformation, risking driving people away from HIV and STI testing and treatment and filling prisons.

 


About the authors of this statement

HIV JUSTICE WORLDWIDE is a coalition of 16 global and regional civil society networks and human rights defenders working to end HIV criminalisation.

Health Law and Policy Consortium (HLPC) is a health policy advocacy organisation leveraging a network of experts across various disciplines. HLPC aims to facilitate rights-based policy formulation, implementation, and monitoring within Zimbabwe’s public health system.

Sonke Gender Justice is a South African-based non-profit organisation working throughout Africa. Sonke believes women and men, girls and boys can work together to resist patriarchy, advocate for gender justice and achieve gender transformation.

Download this statement as a pdf

Global Statement on HIV Is Not A Crime Awareness Day

Download this statement as a pdf

This year, on February 28th, the HIV JUSTICE WORLDWIDE coalition commemorate HIV is Not A Crime Awareness Day as a Global Awareness Day for the first time, under the theme: “You care about ending HIV criminalisation, you just don’t know it yet”. We invite you to stand with us in solidarity and action as we strive to eliminate the unjust criminalisation of people based on their HIV-positive status.

HIV Is Not A Crime Awareness Day was launched in the United States two years ago by HIVJUSTICE WORLDWIDE founding partner, the SERO Project, in collaboration with the Elizabeth Taylor AIDS Foundation, and has grown in size and prominence ever since.

HIV criminalisation laws and prosecutions persist in many parts of the world* perpetuating stigma, discrimination, and human rights violations against people living with HIV. These laws reinforce misconceptions, fuel fear and prejudice instead of fostering empathy and understanding. They undermine public health efforts by deterring people living with HIV from seeking testing, treatment, and support, ultimately hindering progress in HIV prevention and care and reaching targets set to end AIDS by 2030.

The impact of HIV criminalisation extends beyond legal consequences, affecting the social, economic, and emotional well-being of those affected. It breeds shame and secrecy, hindering open communication about HIV and perpetuating a cycle of silence and isolation.HIV criminalisation disproportionately impacts marginalized communities most affected by HIV,exacerbating existing inequalities and injustices as seen in recent years.

We believe that everyone has a role to play in ending HIV criminalisation, marked by our theme this year: “You care about ending HIV criminalisation, you just don’t know it yet,”

We as the HIV JUSTICE WORLDWIDE coalition partners are raising awareness, challenging stigma, and advocating for policy reform and HIV decriminalisation. We want to create a more just and compassionate society for all. It begins with education, empathy, and a commitment to upholding the rights and dignity of every individual, regardless of their HIV status. It’s time for change. It’s time to dismantle the legal barriers that perpetuate stigma and discrimination against people living with HIV. It’s time to shift the narrative from fear and punishment to compassion and support. It’s time to recognise that HIV criminalisation not only affects individuals but also our communities, as it undermines public health efforts and human rights principles.

On this HIV Is Not A Crime Awareness Day, we call upon governments, policymakers, advocates, healthcare providers, and communities worldwide to take action:

  • Reform Legal Frameworks: Advocate for the repeal or reform of laws and policies that
    criminalise HIV non-disclosure, exposure or non-intentional transmission. Replace
    punitive measures with evidence-based approaches grounded in public health and
    human rights.
  • Promote Education and Awareness: Raise awareness about the impact of HIV
    criminalisation on individuals, families, and communities. Foster empathy,
    understanding, and support for people living with HIV.
  • Ensure Access to Justice: Ensure that individuals living with HIV have access to legal
    support and representation to challenge unjust prosecutions and discriminatory
    practices.
  • Foster Inclusive Policies: Advocate for policies that promote inclusivity, dignity, and
    respect for the rights of people living with HIV, including access to comprehensive
    healthcare, prevention, and support services.
  • Empower Communities: Empower communities affected by HIV to advocate for their
    rights, including for HIV decriminalisation, challenge criminal laws and policies and
    demand accountability from policymakers and institutions.

Together, we can create a future where no one faces criminal legal system discrimination or prosecution simply because they are living with HIV. Join us in saying no to HIV criminalisation and yes to justice, compassion, and solidarity. #HINACDay 2024.

* The HIV Justice Network’s Global HIV Criminalisation Database counts 109 jurisdictions in 80 countries with HIV-specific criminal laws, including 23 jurisdictions in the United States, two in Mexico, and three in Nigeria, together with a federal HIV law in each country. The Database includes individual case reports of HIV criminalisation in 161 jurisdictions in 90 countries since we began monitoring HIV cases. These include cases in all eight Australian states, eight provinces and territories in Canada, seven Mexican states, two Nigerian states, 42 jurisdictions in the United States, and all four nations of the United Kingdom. We consider 89 jurisdictions in 52 countries to be ‘active’ – those which have enforced relevant laws in the past five years. A total of 39 of these jurisdictions have HIV-specific laws in place, while 50 jurisdictions applied general criminal laws, such as communicable disease or general harm provisions, to instances of alleged HIV non-disclosure, potential or perceived exposure, or non-intentional transmission.


About us

We are global coalition of community-led global and regional networks and human rights defenders working to shape the discourse on HIV criminalisation, as well as share information and resources, network, build capacity, mobilise advocacy, and cultivate a community of transparency and collaboration.

The coalition is comprised of fourteen networks and organizations. It was founded in 2016 by: the AIDS and Rights Alliance for Southern Africa (ARASA), The Global Network of People Living with HIV (GNP+), HIV Justice Network (HJN), The HIV Legal Network (Legal Network), International Community of Women Living with HIV (ICW Global), Positive Women’s Network (PWN-USA), and the Sero Project (Sero).

A further seven partners have since joined the coalition: AIDS Action Europe (AAE), Eurasian Women’s Network on AIDS (EWNA), Harm Reduction International (HRI), MENA Community, Global Action for Gay Men’s Health and Rights (MPact), Southern Africa Litigation Centre (SALC) and the Global Network of Young People Living with HIV (Y+ Global). To learn more about the HIV JUSTICE WORLDWIDE coalition please visit: www.hivjusticeworldwide.org

Announcing Living 2024:
The People Living with HIV Pre-conference at AIDS2024!

As we commemorate World AIDS Day, a coalition that so far includes: the Global Network of People Living with HIV (GNP+), the International Community of Women Living with HIV (ICW), the Global Network of Young People Living with HIV (Y+ Global), the HIV Justice Network (HJN), AIDS Action Europe (AAE), and the European AIDS Treatment Group (EATG) are delighted to announce our plans to host the People Living with HIV Pre-conference at AIDS2024.

Living 2024 is planned for 20th and 21st July 2024 ahead of the AIDS2024 conference in Munich. 
 
Looking back to 1983, when the very first gathering of people living with HIV developed the Denver Principles, setting the path to the greater involvement, engagement and leadership of people living with HIV in the AIDS response, we are committed to sustain that legacy and make Living 2024 a platform for people living with HIV and our close allies and partners to connect, and strengthen global solidarity for community leadership in the AIDS response. 
 
Living 2024 will be organised under the theme, ‘‘Communities leading: advancing health, dignity, equity”.
 
This is the first time since 2016 that the global community of people living with HIV in all our diversities will meet in person to reflect on the multiple socio-political challenges faced by people living with HIV that continue to limit the civic space needed for our advocacy, as well as the inequalities that fuel stigma, discrimination and criminalisation.

We plan to build power together and identify opportunities to strengthen access to affordable and optimised treatment and diagnostics including for addressing the unique challenges of ageing with HIV.

Living 2024, is also an opportunity for people living with HIV and affected communities to come together to reflect, re-imagine and define the future of the HIV movement, as well as  our place within the broader global health and development platforms in shaping the HIV sustainability plans beyond 2030. 
 
The organisers of Living 2024 call on countries and decision-makers to refocus, recommit, and ensure that communities lead. AIDS isn’t over, our lives and dignity are still under threat, and stigma, discrimination and criminalisation still prevent us from fully benefiting from the remarkable progress of HIV science. 
 
As we prepare for this crucial convening, we invite other networks, communities, partners, and potential funders to join us in making this event successful and historic. In the coming weeks, we will share more details. For any inquiries please reach out to us on email: living2024@gnpplus.net

Download this press release as a pdf

New HIV JUSTICE WORLDWIDE website now live!

The new website for the HIV JUSTICE WORLDWIDE (HJWW) coalition is now online, in four languages – English, French, Russian, and Spanish.
 
HJWW is an international coalition working to shape the discourse on HIV criminalisation, as well as share information and resources, network, build capacity, mobilise advocacy, and cultivate a community of transparency and collaboration.
 
The HIV Justice Network serves as the secretariat, co-ordinating a global work plan; monitoring laws, prosecutions, and advocacy; providing tools and training for effective advocacy and communications; and connecting and convening a diverse range of stakeholders. With this structure, each coalition member can achieve more mission-aligned impact through their engagement in HJWW.
 
HJWW was founded in March 2016 during a meeting in Brighton, UK, that was funded by a grant from the Robert Carr Fund. Since then, we have expanded from seven founding partners to our current fourteen coalition members, with more than 130 organisational supporters from around the world. You can see our collective impact by visiting the Milestones page.
 
The new website – optimised for mobile screens as well as computers and tablets – reflects the work of our expanded coalition. It also provides information and links to websites and key resources explaining what HIV criminalisation is, why we care so much about it, and how you can stay informed and show your support.
 
Visit and share the new website today. After all, we won’t end AIDS as a public health threat by 2030, or end HIV-related stigma, discrimination and criminalisation without HIV JUSTICE WORLDWIDE!

IAS 2023: Five-year impact of Expert Consensus Statement – poster published today

Today, 24th July, at the 12th IAS Conference on HIV Science on Brisbane, we presented our research findings on the five-year impact of the ‘Expert Consensus Statement on the Science of HIV in the Context of Criminal Law’.

Click on the image above to download the pdf of the poster

Tomorrow, 25th July, we will publish the full research report and discuss the findings on our live webshow, HIV Justice Live!

Hosted by HJN’s Executive Director, Edwin J Bernard, the show will include a discussion with the report’s lead author, HJN’s Senior Policy Analyst Alison Symington, as well as interviews with Malawian judge Zione Ntaba, Taiwan activist Fletcher Chui, and SALC lawyer Tambudzai Gonese-Manjonjo on the Statement’s impact.

We’ll also hear from some of the Expert Consensus Statement’s authors, including Françoise Barré-Sinoussi, Salim S Abdool Karim, Linda-Gail Bekker, Chris Beyrer, Adeeba Kamarulzaman, Benjamin Young, and Peter Godfrey-Faussett.

Ugandan lawyer and HJN Supervisory Board member Immaculate Owomugisha will also be joining us live from the IAS 2023 conference where she is serving as a rapporteur, to discuss the Statement’s relevance today.

HIV Justice Live! Episode 5: Bringing Science to Justice will be live on Facebook and YouTube on Tuesday 25th July at 3pm CEST (click here for your local time).

Coming soon:
HIV Justice Live! Episode 5: Bringing Science to Justice

Five years ago, twenty of the world’s leading HIV scientists published the ‘Expert Consensus Statement on the Science of HIV in the Context of Criminal Law’ to address the misuse of HIV science in punitive laws and prosecutions against people living with HIV for acts related to sexual activity, biting, or spitting.

More than 70 scientists from 46 countries endorsed the Expert Consensus Statement prior to its publication in the Journal of the International AIDS Society (JIAS). The Statement was launched on 25th July 2018 at AIDS 2018, with the press conference generating global media coverage.

Building upon our initial 2020 scoping report, we recently undertook further extensive research to examine the impact of the Expert Consensus Statement in the five years since its publication.

On 25th July 2023 – exactly five years to the day of the original launch – we will not only be presenting our findings at the 12th IAS Conference on HIV Science (IAS 2023), we will also be launching the five-year impact report during our live webshow, HIV Justice Live!

Hosted by HJN’s Executive Director, Edwin J Bernard, the show will include a discussion with the report’s lead author, HJN’s Senior Policy Analyst Alison Symington, as well as interviews with Malawian judge Zione Ntaba, Taiwan activist Fletcher Chui, and SALC lawyer Tambudzai Gonese-Manjonjo on the Statement’s impact.

We’ll also hear from some of the Expert Consensus Statement’s authors, including Françoise Barré-Sinoussi, Salim S Abdool Karim, Linda-Gail Bekker, Chris Beyrer, Adeeba Kamarulzaman, Benjamin Young, and Peter Godfrey-Faussett.

Ugandan lawyer and HJN Supervisory Board member Immaculate Owomugisha will also be joining us live from the IAS 2023 conference in Brisbane, Australia where she is serving as a rapporteur, to discuss the Statement’s legacy and relevance today.

There will be opportunities to let us know the impact the Expert Consensus Statement has had in your advocacy and to ask questions live, so please save the date and time.

HIV Justice Live! Episode 5: Bringing Science to Justice will be live on our Facebook and YouTube pages on Tuesday 25th July at 3pm CEST (click here for your local time).

 

Our 2022 Annual Report
A Turning Point for HIV Justice

Today, with the publication of our Annual Report 2022 – A Turning Point for HIV Justice, we look back at our achievements in 2022.

The report is published by the HIV Justice Foundation, an independent non-profit legal entity registered in the Netherlands as Stichting HIV Justice to specifically serve as the fiscal organisation for the HIV Justice Network (HJN) and other related activities.

A turning point for HIV Justice

HJN’s Executive Director, Edwin J Bernard, says: “Looking back on all that happened in 2022, we are cautiously optimistic that the year will be seen as a turning point in the global movement to end HIV criminalisation. We celebrated promising developments in case law, law reform and policy in many countries and jurisdictions throughout the year, building on the momentum of 2021. Although there is much more work yet to do, it’s clear that progress is being made — thanks primarily to the leadership of people living with HIV.”

Richard Elliott, who was appointed Chair of the Foundation’s Supervisory Board in March 2022, adds: “It is truly encouraging to reflect on what has been accomplished by this organisation, and the partners and allies it has supported and mobilised in virtually every region of the world in the past year. From supporting local advocates in multiple countries to a new edition of our flagship report on the state of HIV criminalisation globally, from high-profile media advocacy to the launch of the extraordinary multilingual learning resource that is the new HIV Justice Academy, HJN is building a movement and making a difference.”

A global impact

HJN was a co-founder, and is the secretariat for, the HIV JUSTICE WORLDWIDE (HJWW) coalition. Much of the work undertaken by HJN and the HJWW coalition is funded by the Robert Carr Fund (RCF) for civil society networks. In 2022, HJN was fortunate to receive two RCF grants, serving as lead of both consortia. As such, HJN had ultimate responsibility for the delivery, financial management and reporting obligations related to the grants.

By providing technical assistance and grants, these consortia were able to continue to nurture and support the development of new national and regional networks and expand the capacity of existing ones. Throughout 2022, HJN oversaw the distribution of small grants through our consortium partners working in Eastern Europe and Central Asia, Francophone Africa, Anglophone Africa, and Latin America and the Caribbean.

Looking to the future

Did we turn the corner in 2022? “One thing we know for sure is that changing hearts and minds with respect to HIV criminalisation is a long road with many ups and downs along the way,” says Edwin J Bernard. “We know that important progress was made in 2022 and we face 2023 and beyond with fresh analysis, new tools, and a renewed spirit of solidarity.”

If 2022 was a turning point in the global movement to end HIV criminalisation, achieving HIV justice will depend not only on sustaining this work but also moving forward at an even faster pace.

“I wish to thank our funders who have seen the importance of this work,” says Richard Elliott. “As an activist who has been involved in resisting HIV criminalisation for years before HJN was created, I am delighted to see the vision of a global movement being realised. HJN has been the catalyst for that movement. It’s why I’m pleased and proud to support this organisation — and I hope you will too.”

Links

Annual Report 2022 – A Turning Point for HIV Justice

Support HJN’s work with a donation

 

Discussion Guide for Mwayi’s Story now available

Mwayi’s Story is a short film about courage and women standing up for their rights that was released earlier this year.

Watch the film

 

The film is based on the story of a woman in Malawi who was prosecuted for briefly breastfeeding another woman’s baby. After the case, the community campaigned to stop an HIV criminalisation statute from being passed.

Mwayi’s Story can be used as an awareness-raising and educational resource in classes, webinars and workshops.

The new Discussion Guide was created to help facilitators lead conversations before and after viewing the film.

The Guide provides some background and then poses a number of questions to stimulate thought and discussion. Not all questions are suited to all audiences.

 

Download the Discussion Guide

 

The film has already been shown in a number of forums since its release last May, including at AIDS 2022. It has now been subtitled in French, Russian and Spanish, and we are also looking for partners to translate additional subtitles if they think the film can be useful in their own advocacy. If you’re interested you can get in touch with us at breastfeeding@hivjustice.net. We will send you the English subtitle file for translation. After you return the file to us, we will upload it to YouTube.

Mwayi’s Story is part of our ongoing work to end the criminalisation of women living with HIV for breastfeeding and comfort nursing, including our Breastfeeding Defence Action Toolkit – one of six Action Toolkits in the HIV Justice Academy.

It is our goal to collaborate with advocates, researchers, service providers, organisations and community members around the world to raise awareness and prevent further unjust prosecutions against women living with HIV who breastfeed or comfort nurse. We are grateful to both the Elizabeth Taylor AIDS Foundation and the Robert Carr Fund for their financial support for this work, and this film.

HIV Justice Academy now available in French
HIV Justice Academy est désormais disponible en français

En français ci-dessous

The HIV Justice Academy is now available in French at academy.hivjustice.net/fr. Launched initially in English, the platform architecture allows for content in multiple languages. Spanish and Russian versions will be announced soon. 

The Academy is a global learning and resource hub designed to support people who want to be part of the movement to end HIV criminalisation. It comprises three sections:

At the heart of the HIV Justice Academy is the HIV Criminalisation Online Course which provides a global overview of HIV criminalisation, useful for anyone who is interested in learning more about HIV criminalisation and how to advocate effectively against it.

With its free and accessible written and video resources, we hope that the HIV Justice Academy will engage a growing community of HIV justice activists and advocates, providing timely and accessible learning, tools and resources, so that progressive change can be achieved in legal and policy environments for people living with HIV at national, regional, and international levels.


HIV Justice Academy est maintenant disponible en français à l’adresse academy.hivjustice.net/fr 

Lancée initialement en anglais, l’architecture de la plateforme permet d’accueillir un contenu en plusieurs langues. Les versions espagnole et russe seront bientôt annoncées. 

L’Académie est un centre mondial d’apprentissage et de ressources conçu pour soutenir les personnes qui souhaitent participer au mouvement visant à mettre fin à la pénalisation du VIH. 

Elle se compose de trois sections :

Au cœur de l’Académie se trouve le cours en ligne sur la pénalisation du VIH, qui présente un aperçu général de la pénalisation du VIH, utile pour toute personne souhaitant approfondir ses connaissances sur la pénalisation du VIH et sur les stratégies de plaidoyer efficaces contre celle-ci.

Grâce à ses ressources documentaires et vidéos gratuites et accessibles, nous espérons que l’Académie mobilisera l’intérêt d’une communauté croissante d’activistes et de militants œuvrant pour la justice en matière de VIH, et que grâce à ses cours opportuns et accessibles, ses outils et ses ressources, des transformations progressives pourront être apportées à l’environnement juridique et politique des personnes vivant avec le VIH sur le plan national, régional et international.

Lesotho high court finds imposition of death sentence solely on the basis of HIV status unconstitutional

Court decision upholds that people living with HIV have the same right to life as all others

Joint news release from the Southern Africa Litigation Centre, AIDS and Rights Alliance for Southern Africa, Lesotho Network of People Living with HIV and AIDS, HIV Legal Network and HIV Justice Network

 

On 25 October 2022, the High Court of Lesotho in the case of MK v Director of Public Prosecutions and Others issued a judgment on a constitutional challenge to certain sections of the Sexual Offences Act that impose mandatory HIV testing on persons accused of sexual offences, and subsequently impose a death sentence on persons convicted of sexual offences solely based on their HIV-positive status.

The case was supported by the Southern Africa Litigation Centre (SALC), AIDS and Rights Alliance for Southern Africa (ARASA), HIV Legal Network – all members of HIV JUSTICE WORLDWIDE (HJWW) Steering Committee coordinated by the HIV Justice Network (HJN) – as well as Kenya Legal & Ethical Issues Network on HIV and AIDS (KELIN). Lesotho Network of People Living with HIV and AIDS (LENEPWHA) was admitted as Amicus Curiae. The petitioner and Amicus Curiae were represented by Advocate Molati, Advocate Mokhathali, Advocate Masaeso, Advocate Mohau (K.C) and Advocate Letuka.

The petitioner challenged the constitutionality of section 32(a)(vii) of the Sexual Offences Act which appeared to impose a mandatory death sentence on people convicted of sexual offences who were HIV-positive and were aware of their status. The petitioner also challenged section 30 of the Act, which requires mandatory HIV testing for persons arrested and charged under the Act. The petitioner argued that the imposition of a mandatory death sentence solely on the grounds of HIV status, and mandatory HIV testing upon arrest, breached the constitutional rights to life, equality and non-discrimination, equal protection of the law, privacy, and dignity and that they contribute to stigma against people living with HIV.

In a judgment written by Justice Makara, the High Court, sitting as a Constitutional Court, declared that section 32(a)(vii) of the Sexual Offences Act was unconstitutional to the extent that it imposes a death sentence solely on the basis of a person’s HIV status, as this was discriminatory and amounted to inhumane treatment. The Court said that people convicted of sexual offences should be sentenced according to the mitigating or aggravating circumstances rather than HIV status alone, and that the law should be interpreted so as not to require a mandatory death sentence for a person living with HIV.

“People living with HIV have the right to life, as all people do. Imposing the death penalty based on a person’s HIV-positive status is the most extreme form of discrimination possible. We welcome the Lesotho High Court’s decision to end this terrible human rights violation.” Edwin J Bernard, HIV Justice Network, global coordinator, HIV JUSTICE WORLDWIDE.

“While recognizing the serious impact of sexual violence, the judgment is an acknowledgment that the over-broad use of criminal laws and sanctions solely based on HIV status is unjust and not justified by a scientific and human-rights based approach” Maketekete Alfred Thotolo, Executive Director, LENEPWHA.

 

Download the pdf of the news release here