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.
We wanted to produce a film that was authentic to the lived experience of an HIV criminalisation survivor but without making her go through the trauma of having to relive the experience by telling her story again.
HJN’s video, visuals and webshows consultant, Nicholas Feustel, who produced and directed the film, said: “Since this story is primarily about mothers and children, we decided to produce the film in the style of an illustrated children’s storybook. We searched for a female illustrator working in sub-Saharan Africa and found the wonderful Phathu Nembilwi of Phathu Designs.
“For our narrator, we found Upile Chisala, a storyteller from Malawi known for her short and powerful poems.”
The script by HJN’s Senior Policy Analyst, Alison Symington, was written in consultation with our Supervisory Board member, Sarai Chisala-Tempelhoff, a Malawian human rights lawyer and legal researcher with over 15 years of experience in women’s access to justice.
We also worked with our HIV JUSTICE WORLDWIDE partners, Southern Africa Litigation Centre (SALC) and AIDS and Rights Alliance for Southern Africa (ARASA), to ensure that the film was relevant to their ongoing advocacy in the region. In fact, Mwayi’s Story had its world premiere last week on Zambia’s Diamond TV, in anticipation of a verdict in a similar breastfeeding case.
The film will be shown in a number of forums over the next few months, including at AIDS 2022. It will soon be 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 firstname.lastname@example.org. 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 Toolkit. 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.
[Feature] It Takes More Than A Village to End HIV Criminalisation
The proverb says, “It takes a village to raise a child”. But what if a mother in the village is living with HIV, and some of the villagers stigmatise her? What if that stigma creates a situation where the mother living with HIV is unjustly criminalised because of her HIV status? Then it takes more than a village to get justice for that woman. It takes a global movement to end HIV criminalisation to sensitise and train lawyers and expert witnesses. It takes national communities of women living with HIV to support that woman following her release, and to educate the community in which she lives about HIV.
In 2016, a Malawi court convicted a woman living with HIV of “negligently and recklessly doing an act likely to spread the infection of any disease which is dangerous to life” under section 192 of the Malawi Penal Code. She had attended a village meeting with her baby which she breastfed as usual before passing the child to her grandmother. Another woman then asked her to hold her baby. It was alleged that this child began breastfeeding briefly before the woman realised what was happening. The child’s mother then reported the incident to the police. The woman was arrested and without legal advice or representation, pleaded guilty, was convicted, and sentenced to nine months’ imprisonment with hard labour.
In addition, the accused woman was taking antiretroviral therapy. The chances of HIV transmission through even long-term breastfeeding are very low (which is why WHO guidelines recommend it when access to infant formula and clean water are limited) and the chances of transmission during the brief period the baby allegedly fed were infinitesimally small. In fact, the accused woman’s own child, who was routinely breastfed, has not acquired HIV, calling into question any suggestion that she intended to cause harm to the other woman’s child. Perversely, for a system that unjustly condemned her for risking harm to the other woman’s child, her own baby was imprisoned with her, without any arrangements for appropriate feeding and care, negating any notion that the legal system’s purpose was to protect children.
Following media reports of her initial conviction, numerous individuals and organisations – including HJN and our HIV JUSTICE WORLDWIDE partners, ARASA and SALC – became involved in the case, ultimately changing the outcome for the woman and her family, and laying the groundwork for further anti-HIV stigma advocacy and education in the region. Her story demonstrates the vital role that education, training, strong networks, and community play in the pursuit of HIV justice.
Living with HIV-related stigma
When interviewed at her home in 2019, the woman referred to as “EL” talked about her life:
 The initials EL are used instead of her full name following a court order of anonymity to protect her privacy. The interview took place in 2019, during the village visit described later in this article.
“As kids, there were the two of us — me and my brother. My parents faced challenges raising us. Finding the basic necessities like soap and food was a tall order, let alone talking about going to school. It was difficult to get learning materials as well as proper clothes to wear at school. I worked hard in class but couldn’t get past Standard 5 at primary school. Eventually I dropped out, and my brother did the same, … My daily life was taken up doing house chores just like any other girl in the village, as well as helping my parents with farming. At 16, I got married.”
EL further described how she was diagnosed HIV-positive in 2015 after a de facto compulsory HIV test at an antenatal visit. She already had two children and was pregnant with her third. She had heard about HIV but did not know much about it. EL said that the healthcare workers provided a lot of assistance, giving her accurate information about HIV, including the importance of adhering to her antiretroviral treatment (ARVs).
EL said that she generally enjoyed life in her village, although at times she was subject to stigma and discrimination:
“When I went to fetch water at the community borehole, people would laugh at me, and whenever I wanted to participate in community work, you would find pockets of community members talking ill about me. Some people used to insult me, calling me names. But I persevered because my relatives, including the Village Headman himself, gave me support and always stood by my side.”
Members of EL’s family also faced discrimination. “Due to lack of information, a lot of people thought HIV was hereditary and because I was diagnosed HIV-positive, this meant that all my family members had HIV, and they were discriminated against,” EL said.
EL wonders if more could have been done to help her fight stigma. In particular, EL gained a lot of knowledge about HIV from the counselling she got when diagnosed, but perhaps she could have been better equipped with information to share with people in her community:
“A lot of people don’t know that if you adhere to ARVs, you reduce the risk of transmitting HIV to others. This information needs to be passed on to many people. There are also other issues to do with ARVs. A lot of people don’t have adequate information on the effects of ARVs and at the end of the day, they start pointing fingers at each other, giving people room to start speculating about issues to do with witchcraft.”
EL’s prosecution had repercussions for her whole village. One woman from the community explained:
“I was there and very close to where EL was sitting. Yes, she was carrying another woman’s child. This other woman had given the child to EL for safe keeping while she went to stand in a queue, but honestly speaking, I didn’t see EL breastfeed the child. I just heard some people who were sitting a distance from where we were sitting, as they started pointing accusing fingers at her.”
She said that things moved so fast that before they could think of anything to stop what she called “the rumour.” It had gotten out of hand and people started saying that EL had intentionally breastfed the child to transmit HIV.
After receiving a summons, EL voluntarily turned herself in at the police station. She was accompanied by the Village Headman (her grandfather) who wanted first-hand information about what crime she was alleged to have committed. That same day, police transferred EL to a larger town, where she was remanded for three days. At the age of 29, this was the first time that EL had ever left her village.
Days later, she appeared in court and the charge sheet was read out. EL recounted that she had not understood what was happening and could not make arguments because she had no legal representation. EL agreed with the summary of events as they were described, so she was found guilty and was imprisoned together with her youngest child.
She described life in prison as “hell”:
“After a week, my brother showed up to give me my ARVs. All this talk about a woman with HIV breastfeeding. I breastfed but I also found it tough to feed my baby while in prison because there was no provision of special food for babies. We were eating nandolo (pigeon peas) almost every day with Msima ya Mgaiwa (maize meal). And there was only one toilet for a cell of more than 50 people.”
After some time, relatives and other members of her community started visiting, giving her money she could use to buy soap and food for her baby. “When we heard from our Village Headman that she had been arrested, we were so devastated”, a woman from EL’s village explained. “We raised funds for some members to go and give her support only to learn that she had been transferred to one town, then another, but some of us did manage on several occasions to visit her and offer our support when she was in prison.”
Then, out of the blue, EL received a message that some people had come looking for her. She went to meet them: a lawyer, Wesley Mwafulirwa, and his paralegal. They explained why they were there and asked if she would like them to appeal on her behalf. She accepted enthusiastically. “I was excited but at the same time I was confused because I could not believe that I could be so lucky to have these people come to help me.”
Fighting the charges
Solicitor Wesley Mwafulirwa had volunteered to attend training to address legal barriers to prison health and human rights presented by the Southern African Litigation Centre (SALC). He travelled from Malawi to South Africa to attend the training which addressed useful regional and international mechanisms, and presented insights about legal practice and strategic litigation to support prison health and human rights, particularly for those facing heightened vulnerability to HIV and TB.
At the training, two lawyers spoke about their pro bono work. Wesley remembers one of them, Allan Maleche (Executive Director of KELIN), saying that each participant should take at least one case when they go back to their country. It was a turning point in Wesley’s career.
He had not been home long when he saw an article in the newspaper about an HIV-positive person convicted for trying to spread HIV. That person was EL.
Wesley, who lives in a small town in northern Malawi, drove for more than ten hours to get to the jail where EL was incarcerated. He explained his determination, saying “I was so fired up! I’d just come from SALC’s training … and I said, ‘I want to take up this case’.”
Wesley interviewed EL and offered to take her case pro bono. Wesley contacted SALC, who offered technical support. Their first step was to get an order for anonymity to protect EL’s identity and gain greater control over media reporting. Next, they faced an ethical question. They wanted to challenge the constitutionality of the law but that would take a long time. Because EL was in prison, they decided to undertake a criminal appeal instead. They applied for EL to be let out of custody on bail pending appeal. This is usually a difficult application to win, but they were successful and EL was released from prison.
In the appeal, the court was asked to consider whether the conviction could be justified, whether the penal provision was constitutional (arguing it was overly broad and vague), and whether the sentence was manifestly unjust. Wesley used his learnings from the SALC training to raise international principles and instruments relating to sentencing, which the court referenced and upheld. Michaela Clayton, then Executive Director of the AIDS and Rights Alliance for southern Africa (ARASA), and now a member of HJN’s Supervisory Board, provided expert testimony. Another expert witness, Dr Ruth Brand, identified through HJN’s global network, gave expert scientific evidence to show the risk of HIV transmission had been “infinitesimally small.”
The case was heard by Honourable Justice Zione Ntaba, who held that the proceedings in the trial court were irregular and “blatantly bias” against EL, compromising her right to a fair trial. Justice Ntaba found the charge sheet had been defective and therefore EL’s plea should not have been recorded as guilty. She noted the law must be sensitive to the accused’s knowledge or belief (or lack of) that HIV would be transmitted. Justice Ntaba decided the conviction could not be justified, acknowledging human rights principles against the overly broad criminalisation of HIV non-disclosure, exposure, or transmission. EL’s sentence was set aside. (The Constitutional challenge was referred to a full-member panel of the Constitutional Court although the case was not pursued.)
Notably, Justice Ntaba was a member of the African Regional Judges Forum to discuss HIV, TB and Human Rights (a process which is owned and planned by the judges and run with support from UNDP and funding from the Global Fund).
Fighting the stigma
Shortly after EL’s arrest, the Coalition of Women and Girls Living with HIV and AIDS in Malawi (COWLHA) and the Malawi branch of the International Community of Women Living with HIV/AIDS (ICW-Malawi) discussed the case at a roundtable meeting. At first, everyone was surprised and even laughed, questioning how she could have breastfed someone else’s child. They had never heard of a criminal case involving infant feeding and did not understand what they were dealing with.
During their discussions, COWLHA and ICW-Malawi agreed that the prosecution of EL was a manifestation of stigma and misinformation about HIV in the community. They learned more about the unjust measures that EL had experienced, like being imprisoned without being given a chance to be heard and not being given the chance to prepare and take her medication and things she needed to care for her child. COWLHA and ICW decided to get involved.
Concerned that EL could face social and community hostility after her release, COWHLA and ICW planned a visit to the village to provide psychosocial support to EL and to work with traditional community leaders to provide community sensitisation on HIV, addressing issues of stigma and discrimination. Their efforts helped change some community members’ ideas about HIV.
The community formed two support groups— one for youth and another for adults (notably both were predominantly female groups). They have conducted numerous activities, including home visits, supporting children to go to school, helping the elderly with house chores, and they have a garden where they grow vegetables and rice. They hoped to access loans to become self-reliant. They also had a list of issues they wanted to learn more about, including preventing mother-to-child transmission, sexual and reproductive health, positive living, stigma and discrimination, and treatment literacy.
Visiting EL at home
In September 2019, a three-member team comprising Edna Tembo (Executive Director of COWLHA), Charity Mkona (ICW Board Chair), and Peter Gwazayani (media consultant), set out for EL’s village.
The team was welcomed by the Group Village Headman, who took them to EL’s house. EL recognised Edna from the work COWLHA and ICW-Malawi had done in the community previously. EL welcomed the team with a big smile.
EL and her husband looked cheerful as they laid a mat on the veranda of their house for the visitors. Her mother later joined the discussion.
EL was interested to learn that HJN wanted to write about her case and the type of interventions that had been helpful, to share the story with advocates for HIV justice around the world.
EL recounted that when she returned to the village, “most members of my community received me with happiness, particularly my relatives. The day I arrived, they were jubilant. They celebrated with songs that we normally sing during special occasions in the village.”
EL lives with her husband, five children and her mother in a compound made up of three grass thatched houses. She introduced her children:
“The oldest is 13 and she goes to school, as do the second and third. The fourth, a little girl, is the child I was with in prison. She has not yet started school. And then there is this one, who I am breastfeeding. She is the fifth one. She has been tested for HIV on two occasions and will be going for the last test soon. The other two tests have come back HIV-negative.”
EL’s accuser and her family still lives in the same village which has presented some difficulties. EL said that on several occasions she had tried to greet them when they passed each other, but she had been ignored. “They don’t talk to me but from deep down in my heart, I have no grudges against them,” EL said. “I am just living my normal life,” EL says, although now she says that she would never agree to carry anybody else’s child, for any reason.
Moving beyond criminalisation
With respect to the community-level interventions, lawyer Annabel Raw, who worked at SALC during the time they supported the EL case said:
“As lawyers, we would never have thought to consider such an intervention had ICW-Malawi and COWLHA not shared their insights and been willing to support the client and her community. Their work has been so important to ensuring that meaningful justice was done to combat the actual root cause of the prosecution — stigma and discrimination — and to reconcile EL with her community.”
Engaging with the community also influenced ICW-Malawi and COWLHA’s thinking about HIV criminalisation. COWLHA’s Edna Tembo noted that:
Supporting people who have been prosecuted, particularly women, gives them power, … However, it is very important to stress that psychological support is absolutely vital for those who have been prosecuted. That includes family support, and a supportive community environment enabling acceptance of an individual accused.”
Tembo was also quick to emphasise that there is more work to be done. That work includes awareness raising and ongoing support to the community, especially to identify and train volunteers, empowering them to provide services at community level and to link them to health facilities and district offices for continued support and mentorship.
EL described her dreams for the future:
“My wish now is to see my children progress in school so that they become productive citizens in this community and help it grow. That’s my dream. If they get educated, they will be able to stand on their own and support others. My husband is not employed and it is a challenge to get money for school fees for our children. We would love to get a loan or training to have greater knowledge of economic empowerment because we want to be self-reliant. We would then love to lease some land to grow rice to sell to pay back the loan.
“It’s also my wish to see the lives of all people in the community uplifted. We farm but on a small-scale. If we were to be supported with funds, I’d love to see the community establish big rice farms, working in groups, harvesting for consumption and for sale. In so doing, we would be able to uplift our lives for the better.”
Learn more about Wesley’s experiences in EL’s case here and here.
Learn more about the African Regional Judges Forum here.
The full High Court judgement is available here, with a summary included here.
Read more about the successful HIV and AIDS Management Act community advocacy here.
This article is based on information provided by ICW-Malawi and COWLHA following their visits to EL’s village, and an interview with Wesley Mwafulirwa published by UNDP. HJN provided financial and logistical support for the village visits thanks to a grant provided to the HIV Justice Global Consortium from the Robert Carr Fund for civil society networks.
WATCH HIV Justice Live! (Ep 4): How to advocate for prosecutorial guidance for HIV-related cases
Guidance like this is a good example of a ‘harm reduction’ approach if you can’t change or repeal HIV criminalisation laws, and adopting such guidance can result in fewer miscarriages of justice, as well as improve the criminal legal system’s understand of, and approach to, people living with HIV. Once implemented it’s also a good way of holding prosecutors to account.
The Guidance was developed for UNDP by our HIV JUSTICE WORLDWIDE colleagues, Richard Elliott and Cécile Kazatchkine of the HIV Legal Network. The process, which took two years, involved multiple consultations. Several other colleagues, including HJN’s Executive Director Edwin J Bernard, HJN Supervisory Board member Lisa Power, and HJN Global Advisory Panel member Edwin Cameron were part of the Project Advisory Committee.
The episode, hosted by Edwin J Bernard and featuring UNDP’s Kene Esom alongside Lisa Power and Richard Elliott, also included a special edit of HJN’s documentary, “Doing HIV Justice”, which demystifies the process of how civil society worked with the Crown Prosecution Service of England and Wales to create the world’s first policy and guidance for prosecuting the reckless or intentional transmission of sexual infection.
The full-length, 30-minute version of this documentary is now available as part of a YouTube playlist that also features two other educational and informative videos: an introduction by the CPS’s Arwel Jones with some useful tips about how to engage with prosecutors, and a workshop that took place after the world premiere screening in Berlin, featuring Lisa Power and Catherine Murphy (who helped advocate for the implementation of guidance in England & Wales, and Scotland, respectively) as well as former UNAIDS Senior Human Rights and Law Adviser, Susan Timberlake.
Watch all the videos of Beyond Blame @HIV2020 – our “perfectly executed…deftly curated, deeply informative” webshow
“We have been being battling this fight for many years. Since the start of the HIV epidemic we as gay men, as gay women, as queers, as transgender people, as sex workers, as people using drugs, have been persecuted by the criminal law. And I’m here to say, “Enough! Enough!
We have achieved a great deal with our movement, with the HIV Justice Network. We have achieved a great deal in conscientizing law makers, law givers and the public. It is now time for us to join in unison to demand the end of these stigmatising, retrograde, unproductive, hurtful, harmful laws.
It is a long struggle we’ve engaged in. And it’s one that has hurt many of us. Some of us here today, some of us listening in, some of us who have spoken, have felt the most brutal brush of the law. They have been imprisoned, unjustly prosecuted, unjustly convicted, and unjustly sent away.
HIV is not a crime. But there is more to it. Criminalising HIV, criminalising the transmission or exposure of HIV, as many countries on my own beautiful continent Africa do, is not just stupid and retrograde. It impedes the most important message of the HIV epidemic now, which is that this epidemic is manageable. I’ve been on antiretroviral treatment now for very nearly 23 years. My viral load has been undetectable for more than 20.
We can beat this, but we have to approach this issue as public health issue. We have to approach it rationally and sensibly, and without stigma, and without targeting people, and without seeking to hurt and marginalise people.We’ve made calamitous mistakes with the misapplication of the criminal law over the last hundred years, in the so-called ‘war on drugs’. We continue to make a calamitous mistake in Africa and elsewhere by misusing the criminal law against queer people like myself. We make a huge mistake by misusing the criminal law against people with HIV.
Let us rise today and say, “Enough!”
South Africa: Former Constitutional Court Judge Edwin Cameron talks about his life, HIV and the Law
Judge Edwin Cameron on HIV, justice and attacks on the judiciary
Former Constitutional Court Judge Edwin Cameron, whether intentionally or not, has always been an activist. He talks to Manosa Nthunya about his writing life.
In South Africa, we are increasingly becoming accustomed to the fact that from time to time a judge, particularly from the Constitutional Court, will, to our delight, pen a book.
Since our transition into democracy, some of the judges who have written books, mostly memoirs, include Albie Sachs, Dikgang Moseneke and Edwin Cameron.
All their books are reflections on the law and its role in our nascent democracy.
Because of our history, these memoirs are reflections of the role the law has played in the individual lives of these judges growing up under apartheid.
It is in this way that for us as readers the law comes alive, as it is presented as not only an abstract entity but something that always has a profound effect on lives.
Judge Cameron, who retired from his position as Constitutional Court justice last year, has written two personal memoirs which have both received acclaim.
His first memoir, Witness to Aids, was published in 2005 and his second, Justice: A Personal Account, in 2014.
Both books chronicle his life, beginning under apartheid and into post-apartheid, and interrogate what the law means in the context of a society where it was used to catastrophic ends.
When I met Cameron to discuss his writing life, I was most interested in what it was that compelled him to write, particularly because there seems to be an expectation in our society that the less it is known about a judges’ life and thinking, the better we can trust in the independence and fairness of their judgments.
When I ask him why it is that he writes, he responds that with his first book his reasons were to “make a point about white privilege, about homosexuality and about HIV”.
With his second book, “my aim was to show the law as an oppressor, as the imprisoner of my father, as something that should be applied to social justice ends”.
Witness to Aids is a book, as the title suggests, that looks at the impact that HIV/Aids has had in South Africa.
It’s a book that tells the story of the disease from a deeply personal perspective.
INFECTED WITH THE VIRUS
Cameron writes in the introduction: “I knew that I had Aids when I could no longer climb the stairs from the judges’ common room in the high court to my chambers, two floors above.”
He goes on to tell his story of being infected with HIV and how that dramatically changed his life.
Having been infected with the virus during the heady days of apartheid, Cameron’s book explores the shame that was – and still is – attached to the virus and how this was exacerbated by his sexuality.
This is an experience, he tells me, that has greatly shaped him.
Even though Cameron’s career as a lawyer and eventually a judge was taking off, he writes that having HIV was a huge blow to how he thought his life would turn out as “the other part of my life was washing away beneath my feet, eroded by microbes and attacked by fungi coursing through my veins and wasting my muscles and bodily reserves, leaving me tired and panicked and isolated in the waiting room”.
Having heard people say that they would kill themselves if they found out they were HIV-positive, he found that he “wanted to keep on living. I wanted my health back, urgently. I wanted to breathe easily, freely, again.”
While Witness to Aids is about Cameron’s battle with the disease, it is also a story about the tragic politics of HIV/Aids in South Africa.
He tells me that this was a very difficult book for him to write: “The first book was agony. Every word was anguish. Writing about stigma, infection, recovering from it.
“Writing about the horror of [former president] Thabo Mbeki’s denialism was very painful. I was under attack by a man named Ronald Suresh Roberts, who should remain nameless.”
And the book does – more so than any popular book I can think of – go into detail about the consequences of Aids denialism in South Africa. What created this, he writes in the book, was “the inauguration of Mbeki’s Aids Advisory Panel in 2000”, which “initiated three years of tragic confusion in South African governmental approaches to Aids”.
This is partly why Cameron became an activist for issues related to HIV/Aids.
Rereading the book now, one realises how far we have come as a country with regard to the disease and the despair that was ever-present at that time.
Some of the most moving words that speak to this despair are when Cameron writes: “We cannot allow our grief and our bereavement to inflict a further loss upon us – the loss of our own full humanity, our capacity to feel and respond and support. We must incorporate our grief into our everyday living by turning it into energy for living, by exerting ourselves as never before.”
What made it possible to challenge government was a ruling by the Constitutional Court that the state was compelled to offer antiretrovirals.
In many ways, the story of HIV/Aids in South Africa is a story which, although tragic, bears witness to the importance and strength of living in a constitutional democracy.
It is testament to what is possible when a country has an independent judiciary and a government that respects the judgments of the courts – as was the case, as Cameron writes, under Mbeki’s presidency.
It is in Cameron’s second book that the importance of a constitutional democracy is interrogated more deeply.
In the context of South Africa this is not an easy examination, as the courts have more often than some would wish come under heavy criticism from politicians and, of late, the public through social media.
Cameron writes that the book is about “our country’s most inspiring and hopeful feature – its big-spirited, visionary Constitution. And it tells the story of my journey from poverty-stricken childhood to becoming a lawyer and eventually a justice in the country’s highest court, which has the duty to interpret and guard that Constitution.”
I put it to him that what struck me while rereading his book was how he seemed to have written a biography of the law.
The ways in which the law, like a human being, is under constant change and how in that consistent metamorphosis it can be perceived as either nefarious or necessary.
Thus, even though the story of apartheid that he tells in the book is one about the tragic uses of the law, there is also a sense that the law is not something stable and fixed, that it depends on who is making use of it.
In the book he writes: “What fascinated me was that the law, apartheid’s oppressive instrument, could also be employed against apartheid. It could be used occasionally to mitigate its effects. Properly employed, it could be used to repair and not to break down or damage.”
What Cameron provides here is a picture of the law that is very much with us in post-apartheid South Africa.
Even though the sense, for most, is that the law should be used to respond adequately to our history, there are also those who are intent on abusing it to further their ambitions.
What this reveals to us as the public is that the law is, in fact, a fragile entity, solely reliant on the motives of those who are in control of it.
In Justice: A Personal Account, we are taken into Cameron’s childhood in an orphanage and how he became interested in law.
Even though he grew up poor in apartheid South Africa, he was nevertheless acutely aware of the fact that being white meant that he had privileges which other racial groups could not have.
“My whiteness bought me the privileges that apartheid was designed to secure for whites. It secured for me access to a first-rate high school and an excellent university. These opened the way for me to get a Rhodes Scholarship to Oxford, and to start my legal career,” Cameron writes.
It is precisely these privileges which he believes South Africa’s democratic Constitution is called on to address, about which he writes: “Our Constitution seeks to offer this generosity and support justly to all. It gives us a framework for a society in which mutual support and generosity are key. And it obliges government, on behalf of all of us, to create a society in which all of us can live in dignity.”
ATTACKS ON THE JUDICIARY
I find it unavoidable to ask him about his reflections on the latest, as we are told, “attacks” the judiciary.
What does he make of them and are they justified?
He responds saying that precisely because South Africa’s transition was legal-centric, it is unavoidable that the judiciary will, from time to time, receive criticism.
At the time he wrote his second book, he says, “the Constitution was under credible and warranted scrutiny”.
What he was saying in the book was that, despite the criticisms the Constitution has received, it has survived, revealing its strength.
Recently, “the particular criticism has come from the EFF, when they got a number of judgments which were adverse to them and [Mbuyiseni] Ndlozi made personal comments about the judge and he referred to the two judges’ genders”, something which Cameron says he found worrying. This was a consequence of a judgment that involved Public Protector Busisiwe Mkhwebane, where the majority of judges found that she had been dishonest and legally incompetent.
Cameron tells me that, despite the fact that the Constitution has shown its resilience, there was a time in our recent history when our democracy was under threat.
He says it was with the help of the Chief Justice Mogoeng Mogoeng and former Public Protector Thuli Madonsela that we survived.
“If I had to nominate two people that have saved our democracy I would nominate Mogoeng and Madonsela. They have played pivotal roles in salvaging democracy from total ruin.”
I ask what advice he would give to young authors, be it in law or otherwise.
“It starts with a message. In Witness to Aids I was trying to talk about how HIV is a manageable but highly stigmatised disease. In Justice: A Personal Account it was [about] a Constitution under threat. For me it starts with a message and the rest flows from that.”
And when I ask what it is that keeps him going, Cameron says: “The young law students are the reason to keep going. Outstanding young South Africans who have a sense of vision about what the law can do and about how the courts should operate. It’s the reason to keep going and not to fall into some kind of pessimism or despair.”
Nthunya is a PhD candidate in literature at Wits University. He studied literature, history and philosophy at Rhodes University
South Africa: Constitutional Court Justice Edwin Cameron, a leading figure on HIV and the law, to retire in August
Justice Edwin Cameron to step down in August after 25 years as a judge
Justice Edwin Cameron is expected to retire as a judge on August 20, the Constitutional Court announced on Twitter on Thursday.
Cameron is expected to step down from the apex court on the 25th anniversary of his appointment as a judge.
Cameron, who worked as a human rights lawyer during apartheid, defended ANC members and fought for gay and lesbian equality, according to his profile on the Constitutional Court’s website.
He revealed that he was HIV positive in 1999, at a time when many people living with the virus faced significant stigma from a deeply ignorant public. He contracted the virus in the late 1980s.
In 2017, he told the Constitutional Hill website: “The stigma is still enormous. It would be helpful if we had more [prominent people open about being HIV positive], but each has to take that decision personally.”
Cameron, a keen cyclist, was appointed to the Constitutional Court in 2008 by then acting president Kgalema Motlanthe.
The announcement about him stepping down has been met with sadness. There were also expressions of admiration for what he accomplished over the years.
Welcome to BEYOND BLAME – Challenging HIV Criminalisation, live from De Balie in Amsterdam, 23 July 2018.
11:20 – 12:10 What About Human Rights? The Benefits and Pitfalls of Using Science in Our Advocacy to End HIV Criminalisation Facilitator: Laurel Sprague (UNAIDS) With: Chris Beyrer (John Hopkins Bloomberg School of Public Health), Edwin Cameron (Constitutional Court of South Africa), Richard Elliott (Canadian HIV/AIDS Legal Network), Lynette Mabote (ARASA), Paula Munderi (IAPAC)
12:10 – 13:00 Women and HIV Criminalisation: Feminist Perspectives Facilitator: Naina Khanna (Positive Women’s Network – USA) With: Sarai Chisala-Tempelhoff (Women’s Lawyers Association, Malawi), Michaela Clayton (ARASA), Kristin Dunn (AIDS Saskatoon), Deon Haywood (Women With A Vision)
Important new resource, SALC’s HIV Criminalisation Defence Case Compendium, published this week
The Compendium aims to provide lawyers with a tool to successfully defend people living with HIV who are being prosecuted for alleged HIV non-disclosure, exposure, or transmission. It catalogues and analyses criminal cases from across the world where “strong defence arguments have resulted in an acquittal or reduced penalty”.
Regional judges meet to promote law as a tool to strengthen the HIV response in Africa
High and Supreme Court judges from across Africa gathered in Johannesburg, South Africa this week for an annual forum to share experiences, compare cases across different jurisdictions, learn about the latest medical and science developments, and discuss ways to advance the use of law as a tool to respond to the HIV epidemic.
The three-day Africa Regional Judges Forum on HIV, Human Rights and the Law was attended by nearly 50 participants, including 30 judges from 16 countries, and was organized by the United Nations Development Programme (UNDP) through the Africa Regional Grant on HIV: Removing Legal Barriers.
The forum was established by a group of judges in 2014 following the release of the report of the Global Commission on HIV and the Law, an independent body convened by UNDP which examined links between legal environments and HIV responses. The annual meetings are owned and planned by the judges themselves.
“Through their interpretation of national Constitutions, legislation, international and regional human rights treaties, the judiciary play a crucial role in establishing and implementing laws, policies and practices that can aid the HIV response,” said Justice Key Dingake who opened the forum with a keynote speech. “This annual forum has proven to be a useful mechanism for facilitating experience and knowledge sharing amongst the legal community, and it is hoped that these efforts will translate into a positive impact on the lives of people affected by HIV, who are often among the most vulnerable in society.”
Discussions during this year’s meeting focused on transgender persons and their lived realities, HIV and tuberculosis in prisons, criminalization of HIV transmission, people who use drugs, and adolescent sexual and reproductive health and rights, including an in-depth discussion on child marriage in Sub-Saharan Africa.
Relevant cases were shared with participants. A landmark judgement in Malawi concerning overly broad criminalization of HIV non-disclosure, exposure and transmission was discussed in detail. The case concerns a woman living with HIV and on antiretroviral treatment who was convicted of a crime under section 192 of the Penal Code for breastfeeding another person’s child. The child did not contract HIV and the evidence indicated that the breastfeeding was accidental and unintended. With the support of the Southern Africa Litigation Centre, UNDP and a team of local lawyers and activists, the conviction was overturned in January 2017 as part of strategic litigation efforts. Key actors involved in the case, including the judge and defense lawyer, attended the session and shared insights of the case with participants.
“One of the key issues in the case was how HIV can be transmitted and the risk of HIV transmission when breastfeeding,” said Justice Zione Ntaba. “I was able to use the information from previous meetings of the Judges Forum as well as material on the database to assist me in determining whether breastfeeding a baby put the baby at significant risk of contracting HIV.”
Another session during the forum focused on tuberculosis in prisons. Katherine Brittin from TB/HIV Care Association discussed how tuberculosis is transmitted in prison and the risk factors for transmission, including overcrowding in prisons. She called on the judges to take these factors into account when sentencing individuals, especially given the overcrowding of prisons in many countries in Africa.
A key aim of the forum is to give opportunities for the judiciary to hear directly from representatives of civil society and affected population groups on the impact of laws, policies and practices. Real world lived experiences were presented by a transgender doctor, a transgender man from Asia-Pacific, a man who acquired TB while in prison, two women who were forced into marriage as children, and a person who uses drugs and is currently on methadone treatment.
In some parts of the region, cultural norms such as child marriage are having harmful effects on the HIV response. Participants from Zimbabwe shared the difficulties that they encountered in mounting a legal challenge for child marriage in the country. In 2016, civil society and the Southern African Development Community-Parliamentary Forum collaborated to develop a Model Law on Eradicating Child Marriage and Protecting Children Already in Marriage which was intended to prompt policy reforms in Member States. While the initiative is still in its infancy, participants expressed hope that it will be a catalyst for change.
“Laws that are based on evidence and human rights have the power to make a positive impact on the HIV response,” said Amitrajit Saha, Senior Advisor HIV and Human Rights, UNDP. “UNDP works to empower and marginalized key populations, including women and girls, in national and local HIV responses can strengthen the response. This also contributes to fulfilling the Sustainable Development Goals pledge to ‘leave no one behind’.”
UNDP has developed an online searchable database of HIV and the law related judgements, which was shared with participants. The database is continually growing in size and has proven to be a useful tool for judges over the last two years that it has been in operation. The database can be accessed online here.
One highlight of this year’s gathering was the creation of a Steering Committee comprised of five judges from the forum. Justice Dingake will serve as the President of the Steering Committee; Judge Zukisa Tshiqi of the Supreme Court of Appeal of South Africa will serve as the Vice President. The other three members of the Steering Committee are Judge Mumcy Dlamini of the High Court of Swaziland, Judge Ndomba Kabeya Elie Leon from the Democratic Republic of the Congo and Judge Anthony Fernando of the Seychelles Court of Appeal. The Steering Committee will set the strategic direction of the forum, initially adopt a draft plan of action for the next six months and work with UNDP and other partners to implement the plan. Preliminary discussions were also held on expanding the forum to cover countries from the Middle East and Eastern Europe regions.
Additionally, the forum dedicated a session to planning for the upcoming Second Africa Regional Dialogue on HIV and the Law scheduled to take place 3-4 August in Johannesburg, and discussed the importance of including judges in this significant event.
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