The Kenya Legal and Ethical Issues Network on HIV & AIDS (“KELIN”) is disappointed with the Nairobi High Court’s decision dismissing Petition 447 of 2018.
The Petition was filed in December 2018. It asked that the Court declare section 26 of the Sexual Offences Act 3 of 2006 to be unconstitutional, void and invalid, and therefore struck from the law. This law criminalises deliberate transmission and or exposure of life-threatening sexually transmitted diseases, including HIV.
On 20 December 2022, Justice Ong’udi in the Nairobi High Court dismissed the Petition, upholding the law’s constitutionality.
“We are disappointed with both the outcome and the Court’s process,” said Mr Allan Maleche, the Executive Director of KELIN. “The judgment failed to consider the undisputed expert evidence. That evidence showed how this law, and its application, are not only contrary to international scientific consensus on the nature and risk of HIV transmission, but that it is also harmful to proven strategies to prevent and treat HIV effectively”, he said.
Ms Nerima Were, KELIN’s Head of Programmes, said that in addition, KELIN regretted that the Court elected not to have an oral hearing and instead decided the case on the papers only. It also declined to consider the amici curiae’s submissions, despite that they had previously been admitted as friends of the Court on 27 January 2020. Ms Were said that “For such an important case, where understanding HIV science was critical to ensuring justice, the Court would have benefitted from hearing the Petitioners and counsel, and from considering the international expertise of the friends of the court, UNAIDS and HIV Justice Worldwide.”
Mr Maleche said that while the judgment somewhat narrows the interpretation of the offence, for as long as it remains on the books, it will continue to obstruct an effective HIV response. The Petitioners intend to appeal the judgment.
Who were the parties?
The petitioners were KELIN, people living with HIV and an HIV-negative spouse.
The first petitioner was a man living with HIV who had been charged with a crime under section 26 of the Sexual Offences Act for allegedly biting a police officer’s thumb during his arrest.
The second petitioner was a woman living with HIV who was on HIV treatment and had an undetectable viral load. She was charged under section 26 of the Sexual Offences Act after being falsely accused of breastfeeding another person’s child.
The third petitioner was a woman living with HIV. After she disclosed her HIV-positive status to her spouse, he violently assaulted her and threatened to report her to the police under section 26 of the Sexual Offences Act.
The fourth petitioner was a woman living with HIV who was married to the fifth petitioner, who is HIV-negative. The sixth petitioner was similarly a woman living with HIV who was married to an HIV-negative spouse. These petitioners were concerned that the HIV-positive spouses risked prosecution under section 26 of the Sexual Offences Act, even though they were all aware of each other’s HIV-statuses, and that the HIV-positive spouses were on treatment and taking precautions to prevent transmission.
The respondents were the Attorney General, the Director of Public Prosecution (“DPP”).
The National AIDS Control Council (“NACC”) joined as an interested party.
There were two friends of the court (or amici curiae): the Joint United National Programme on HIV and AIDS (“UNAIDS”) and HIV Justice Worldwide (“HJWW”) (“the friends of the Court”).
What were the parties’ arguments?
The Petitioners argued that section 26 of the Sexual Offences Act infringes the principle of legality because it is vague and arbitrarily enforced. They demonstrated that – by virtue of the law’s vague language – it is being applied in circumstances where there is scientifically a minimal or no risk of HIV transmission, and in circumstances where there is no established intent to transmit HIV.
The Petitioners demonstrated that section 26 of the Sexual Offences Act had been used to harass and extort people living with HIV, to test them without informed consent, as a tool of gender-based violence against women living with HIV, to publicise people’s confidential health information unjustifiably, and to advance HIV stigma and misinformation.
The Petitioners argued that the law therefore infringes constitutionally protected rights unjustifiably, including article 28 (the right to inherent dignity), article 29(f) (the right to freedom and security of the person), article 27 (the right to freedom from discrimination), article 49(1)(d) (the rights of arrested persons), article 50(1) (the right to a fair trial), article 31 (the right to privacy), and article 45 (the right to family).
The Petitioners provided undisputed expert evidence to show that the law did not prevent HIV transmission.
The Attorney General, with the support of the DPP, opposed the Petition. He argued that section 26 of the Sexual Offences Act was not unconstitutional and was clear and unambiguous.
The NACC also opposed the Petition. It argued that the law properly aimed to punish people who deliberately infect other people and did not infringe any constitutional rights.
HJWW and UNAIDS were admitted as friends of the Court on 27 January 2020. HJWW provided an international context to HIV criminalisation generally and to section 26 of the Sexual Offences Act specifically. UNAIDS sought to provide the court with information on international standards, policies and recommendations regarding the use of criminal law against HIV non-disclosure, exposure and transmission. The Court declined to consider the submissions of the friends of the court.
What was the court’s decision?
The High Court dismissed the Petition.
It considered that it was beyond its mandate to consider the undisputed evidence that the law undermined public health interventions and efforts to prevent HIV transmission.
The Court did not consider that section 26 of the Sexual Offences Act was unconstitutional. It held that, properly interpreted, an offence is only committed if a person has actual knowledge of their HIV status, and intentionally, knowingly and wilfully does infects a person with HIV or other sexually transmitted disease. It therefore did not consider the provision vague or ambiguous.
It held further that the Petitioners had not shown that section 26 of the Act violated their constitutional rights.
The Court nonetheless acknowledged that the Petitioners had “clearly showcased” that the law had been used to “harass and charge them wrongfully” as people living with HIV. It held that the Petitioners were at liberty to seek redress for any non-compliance by the authorities with the law.
It held that a person’s HIV-positive status should never be announced in open Court or published in order to protect the dignity of the person concerned.
What is the effect of the High Court’s decision?
The Court’s decision means that, unless the judgment is successfully overturned on appeal, section 26 of the Sexual Offences Act remains valid law in Kenya.
The Court has confirmed, however, that the offence should be restrictively applied only where three elements are proved beyond a reasonable doubt:
First, the perpetrator must act intentionally and with a specific intention to infect another person;
Second, the perpetrator must have actual knowledge of their HIV status; and
Third, the prosecution must prove that the perpetrator actually infected the other person with HIV.
The Petitioners have a right appeal the judgment to the Court of Appeal.
Kenya: High Court dismisses petition challenging the constitutionality of HIV criminalisation
Disappointment as High Court Dismisses Case Challenging Criminalisation of HIV transmission
Nairobi, 20th December 2022. The High Court has dealt a blow to the fight against the HIV response, by dismissing a petition that challenged the criminalisation of all forms of deliberate transmission of HIV. Hon. Lady Justice Hedwig Ong’udi dismissed the petition on the grounds, the petitioners had not met the threshold to have the section declared unconstitutional. Further she noted that Section 26 of the Sexual Offences Act(SOA), does not refer to all people living with HIV, but rather those who deliberately and knowingly transmit HIV.
Had the court upheld the petition Kenya who have been removed from the list of the 30 sub-Saharan nations and the 92 countries globally, who have enacted and enforced laws that criminalise HIV exposure and infection.
The petition filed by KELIN, and 6 other petitioners, who included people living with HIV, challenged the constitutionality of Section 26 of the SOA. This law criminalizes the deliberate transmission of HIV and other sexually transmitted diseases. The Petitioners had based their petition on the factual and lived experiences of each of the first six petitioners, all of whom have been adversely affected by the discriminatory application of this section yet had not been engaged in any sexual offences.
The Attorney General together with the National AIDS Control Council had opposed the petition arguing the section was constitutional as it was necessary to curb deliberate transmission due to the continued presence of HIV in Africa. It further argued that the rights of persons living or affected by HIV are not absolute, and that these must be weighed and interpreted with limitations provided under the Constitution.
As at the time of publishing this news alert, the court judgment had yet to be released to the parties. We look forward to receiving the court decision to better understand the court’s reasoning as well as determine a way forward. A further statement will be issued in due course.
Translated via Deepl.com. For original article in Russian, please scroll down.
The Krasnodar Territory Department of the Russian Federal Consumer Rights Protection and Human Health Control Service decided that Uzbek citizen X. was undesirable in Russia because of her HIV positive status. The Leninskiy Court in Krasnodar found the ban discriminatory and unlawful.
The foreigner went to court to challenge the decision to ban her from staying in Russia, pointing out that her parents, brother and sister reside in Russia and have Russian citizenship, and she has never violated the law. When Rosia appealed to Rospotrebnadzor to cancel the decision, they replied that the procedure for cancellation or suspension under this category was not regulated by law and that the contested decision could only be cancelled on the basis of a court decision.
The court found that under the law On the Prevention of the Spread of Disease Caused by HIV in the Russian Federation, foreigners and stateless persons with such status may stay in the country if they do not violate administrative and criminal law. The Russian Constitutional Court has also confirmed the illegality of such restrictions.
As a result, the Leninskiy Court in Krasnodar ordered the regional department of Rospotrebnadzor to reverse the decision on the undesirability of the Uzbekistani citizen, who is now allowed to enter the country.
Суд в Краснодаре признал незаконным отказ во въезде в Россию иностранке с ВИЧ
Управление Роспотребнадзора по Краснодарскому краю приняло решение о нежелательности нахождения в России гражданки Узбекистана Р.Р. из-за ее положительного ВИЧ-статуса. Ленинский суд Краснодара признал запрет дискриминационным и незаконным.
Иностранка обратилась в суд, оспаривая решение о запрете пребывания в России, указав: ее родители, брат и сестра проживают в России и имеют российское гражданство, она ни разу не нарушала законодательство. Когда Розия обратилась в Роспотребнадзор с требованием отменить решение, там ответили – порядок отмены или приостановления по этой категории законодательно не урегулирован и отмена оспариваемого решения возможна только на основании решения суда.
Суд установил, что по закону “О предупреждении распространения в Российской Федерации заболевания, вызываемого ВИЧ” иностранцы и лица без гражданства с подобным статусом могут находиться в стране, если не нарушают административное и уголовное законодательство. Незаконность такого ограничения подтверждает и Конституционный суд России.
В итоге Ленинский суд Краснодара обязал региональное управление Роспотребнадзора отменить решение о нежелательности пребывания гражданки Узбекистана, которой теперь разрешен въезд в страну.
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.
The Supreme Court ruling is one of the strictest in a recent spate of measures addressing deceptive condom use, as courts try to define consent.
TORONTO — It is a crime to renege on a promise to wear a condom during sex without a partner’s knowledge or consent, the Supreme Court of Canada ruled this week.
The decision sends a British Columbia man back to trial for sexual assault, and sets legal precedent in Canada, further clarifying the law governing sexual consent in a country that has been raising the bar for it for decades.
“In no other jurisdiction in the world is it as clear that when someone has agreed to sex with a condom, and removed it without their consent, this constitutes sexual assault or rape,” said Lise Gotell, professor of women’s and gender studies at the University of Alberta, and an expert on sexual consent and Canadian law.
“The court says very clearly there is no consent in that circumstance — it doesn’t matter whether or not the non-consensual condom removal was overt, or if it was deceptive,” she added.
The case in question involves two people who interacted online in 2017, met in person to see if they were sexually compatible, and then met to have sex. The woman, whose name was shielded by a publication ban, had predicated her agreement to sex on the use of a condom. During one of two sexual encounters at that meeting, the accused man didn’t wear a condom, unknown to the woman, who later took preventive H.I.V. treatment.
The defendant, Ross McKenzie Kirkpatrick, was charged with sexual assault. However, the trial court judge dismissed the charge, accepting Mr. Kirkpatrick’s argument that the complainant had consented to the sexual relations, despite Mr. Kirkpatrick’s failure to wear a condom.
The ruling was overturned by the British Columbia Court of Appeal, which ordered a new trial. Mr. Kirkpatrick appealed that decision to the country’s top court, which heard arguments last November.
“Sexual intercourse without a condom is a fundamentally and qualitatively different physical act than sexual intercourse with a condom,” states the ruling, which was approved by a 5-4 vote by the court, and was released on Friday.
It adds, “Condom use cannot be irrelevant, secondary or incidental when the complainant has expressly conditioned her consent on it.”
Mr. Kirkpatrick’s lawyer said the new interpretation of the criminal code, which will be standard across the country, would drastically change the rules around sexual consent, making it almost like a binding contract that could be signed in advance.
“In Canada, consent is always in the moment. But what this decision does, it creates an element of consent far from the moment of sexual activity — in this case days or even a week before the sexual encounter,” said Phil Cote, a defense lawyer in Surrey, British Columbia.
“If there’s a moral to be taken from this for everyone, but particularly for men, is that you have to be sure there is active and engaged consent. And if you are not sure, you should ask,” he added. “But unfortunately, that’s not how sexual encounters go.”
The practice, popularly known as “stealthing,” has become prevalent enough that some Canadian universities have incorporated it into their sexual violence prevention policies.
Last year, California Gov. Gavin Newsom signed a bill into law which made stealthing illegal — a first in the United States. However, the law amended the state’s civil definition of sexual battery, offering victims grounds to sue their assailants for damages, but it didn’t alter the criminal code. Around the same time, the Legislative Assembly in the Australian Capital Territory, which includes Canberra, also passed new laws that define stealthing as an act of sexual assault.
Courts in Britain and Switzerland have convicted people of crimes for removing condoms during intercourse.
Canada has passed increasingly restrictive laws against sexual assault since 1983, when it amended its rape law by replacing rape with three criminal offenses that broaden the definition of sexual assault to include violent actions other than non-consensual penetration.
[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.
Uganda to re-consider problematic HIV law provisions
Constitutional Court Judge Christopher Izama Madrama has instructed the Attorney General of the Government of Uganda to submit a formal reply to the HIV Constitutional Petition No. 4 of 2016, after it came up for mention in the Court on August 12th, 2021.
The petition, by a coalition of HIV, human rights, and LGBTQ organisations, seeks for the removal of three problematic clauses in the HIV Prevention and Control Act which was passed on May 13, 2014 by the Ugandan Parliament.
The Act allows for stringent punishments for the vague ‘crimes’ of attempted and intentional HIV transmission. The other problematic provisions in the Act are mandatory HIV testing for pregnant women and their partners and allowing medical providers to disclose a patient’s HIV status to others without consent.
This is the one of three pieces of good news from Uganda this week.
Earlier this year, HJN joined other civil society and human rights organisations in condemning the passage of Uganda’s Sexual Offences Bill which would have negatively impacted sex workers, the LGBTQ communities, and people living with HIV.
The Bill defined rape as ‘misrepresentation’, running the very real risk of being interpreted by the criminal legal system as HIV status non-disclosure. If the accused was found to be living with HIV, this would have resulted in the death penalty.
However, last week it was reported that President Museveni declined to sign the Bill into law, saying many provisions are redundant and already provided for in other laws.
In addition, last week Uganda’s Constitutional Court scrapped a controversial anti-pornography law whose provisions included a ban on women wearing miniskirts in public saying the law was “inconsistent with or in contravention of the constitution of the Republic of Uganda.”
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.
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.
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.
Canada: New article examines the damaging impact of the Supreme Court of Canada decision in R. v. Cuerrier
The Complex Legacy of R. v. Cuerrier: HIV Nondisclosure Prosecutions and Their Impact on Sexual Assault Law
This article examines the impact of the Supreme Court of Canada decision in R. v. Cuerrier from two vantage points. First, the article examines the impact of the decision on HIV nondisclosure prosecutions. Second, it examines the damage done by Cuerrier to sexual assault law outside of the HIV context. The article argues that Cuerrier has both overcriminalized people living with HIV and distorted the law of sexual assault. Through Cuerrier, and subsequent cases, the Supreme Court of Canada has unduly limited the concept of consent and its voluntariness requirement, and distorted the concept of fraud such that deceptions around sex are only criminalized where they cause a significant risk of serious bodily harm. It is argued that legislatively removing HIV nondisclosure prosecutions from the scope of sexual assault offences, and making corresponding changes to the definition of consent, is the only way to remedy the harm done to people with HIV and to sexual assault law more generally.
An HIV-AIDS legal advocate says Alberta’s top court has turned a deaf ear to the concerns of Canada’s HIV-AIDs community by upholding the automatic, lifetime listing of convicted sex offenders in a national registry, even if the assault conviction is based on a failure to disclose HIV or AIDS.
In a Sept. 3 split decision in R. v. Ndhlovu 2020 ABCA 307, the majority for the Alberta Court of Appeal overturned a 2016 ruling by now retired Alberta Court of Queen’s Bench Justice Andrea B. Moen, who found that Eugen Ndhlovu should not be subjected to mandatory registration and reporting for life under the Sex Offenders Information Registration Act (SOIRA), even though he had been convicted of two counts of sexual assault.
The Toronto-based Canadian HIV/AIDS Legal Network (CHALN) and the HIV and AIDS Legal Clinic Ontario (HALCO) applied for and were granted joint intervener status by the Alberta Court of Appeal. They argued that when sexual activity is consensual, an accused with HIV or AIDS with a suppressed viral load and no realistic possibility of transmitting HIV should not be prosecuted and that automatic listing of such offenders in the national sex offender registry is overbroad and grossly disproportionate under the Charter. CHALN and HALCO were the only interveners in the case.
However, the Court of Appeal declined to assess what it described as a “hypothetical” scenario involving a sexual offence stemming from non-disclosure of HIV.
“As this Court has previously found, assessing hypotheticals afresh on appeal is not ideal,” Justice Frederica Schutz wrote for the majority, including Justice Frans Slatter. “More specifically, in this matter the issues raised by the Intervenors including inter alia, assessing the risk of HIV transmission posed by an offender’s viral load, are outside the bounds of the facts and evidence presented in this case, particularly if the offender was to stop taking his medication.”
Richard Elliott, executive director of the Canadian HIV-AIDS Legal Network said more than 200 people a year in Canada plead guilty to, or are convicted of, sex-related charges due to HIV non-disclosure. Most typically, he said, the charge is aggravated sexual assault.
“There’s an ongoing problem here with what we characterize and many increasingly recognize as the overly broad use of the criminal law in this domain, and it has these very serious, harsh consequences,” he told The Lawyer’s Daily. “In addition to the ordinary sentencing provisions about years of imprisonment — including potential maximum life imprisonment for an aggravated sexual assault charge — there’s also this added punitive feature of mandatory lifetime designation as a sex offender.”
The Court of Appeal’s choice to ignore the issue was, at the very least, a surprise, said Elliott.
“The court itself granted us intervener status, presumably on the basis that they felt that the argument we proposed to advance had some relevance to the issue,” he said. “So having done that, it’s a bit strange to then not address the issue that you authorized the interveners to bring forward. So I’m not really sure what the point was.”
SOIRA was amended by the Conservative government of former prime minister Stephen Harper in 2011 to remove judicial discretion and require mandatory lifetime registration for anyone convicted of more than one sexual offence. The registry is only accessible by law enforcement officials. Those registered under SOIRA are also required to report to law enforcement authorities once a year for life. Both Justice Schutz and Justice Slatter are Harper appointees.
At his 2015 trial, Ndhlovu, then 19, was found guilty of sexually assaulting two women at a 2011 house party. Justice Moen later sentenced him to six months in jail followed by three years of probation. But she found the provisions in the Criminal Code related to SOIRA violated s. 7 of the Charter because she concluded they are overbroad and grossly disproportionate.
In a 2018 challenge by the Crown, Justice Moen found that those provisions could not be saved by the Charter’s s. 1 reasonable limits clause. The Alberta Court of Appeal majority disagreed.
“I conclude the sentencing judge erred in finding that the respondent had established a deprivation of his right under s. 7 to life, liberty or security of the person that was not in accordance with the principles of fundamental justice,” wrote Justice Schutz. “In the result,” she added, “ss 490.012 and 490.0 13(2.1) of the Criminal Code are constitutionally valid.
“The registration and reporting requirements under SOIRA are not so onerous as to be divorced from the purpose of the legislation,” the majority found.
In a dissenting opinion, Justice Ritu Khullar, appointed by Prime Minister Justin Trudeau in 2018, found that sections 490.012 and 490.013(2.1) of the Criminal Code violate an individual’s s. 7 liberty rights and are overbroad because they apply to sex offenders who are a very low risk to reoffend, like Ndhlovu.
“The Crown failed to show that s 490.013(2.1), which requires lifetime registration for offenders who have committed more than one designated offence, minimally impairs the liberty interest of very low risk offenders,” wrote Justice Khullar. “It also failed to establish that s 490.0 12 requiring mandatory registration, or s 490.013(2.1), contributed to any extent to preventing or investigating sexual crimes, so both provisions are disproportionate under the final stage of the Oakes test.”
The Oakes test is an analysis of the Charter’s limitations clause created by the Supreme Court of Canada in its decision in R. v. Oakes  1 S.C.R. 103.
The split Alberta Court of Appeal decision now opens the way potentially for the issue of mandatory, lifetime registration under SOIRA to go before the Supreme Court of Canada. Lawyer Elvis Iginla of Edmonton-based Iginla & Co., who served as counsel for Ndhlovu, did not respond to a request for an interview.
Professor Lisa Silver with the University of Calgary Faculty of Law called the majority decision a “very old school way of looking at constitutional law.”
“The majority does talk about in their reasons the importance of deference to Parliament,” she told The Lawyer’s Daily. “And in paragraph 88, the majority goes on to say policymakers are entitled to make choices within a reasonable range of options. The courts are not Parliament’s micro-managers.
“Of course,” she added, “the flip side of it is that courts have a duty to be that judicial scrutiny, that oversight, when it comes to legislation to ensure that it is consistent with the Charter.”
Silver said there is an increased possibility that the Supreme Court of Canada would grant leave to appeal the Appeal Court decision because Justice Khullar’s strong dissent brings out a different perspective on s. 7 of the Charter by highlighting privacy interests.
“That to me is an issue of national importance,” she said, “and it’s also an issue that hasn’t been fully developed in the Supreme Court of Canada.”
The Supreme Court of Canada might also intervene because the majority may have made an error by accusing the sentencing judge of reformulating the objective of the SOIRA amendments, said Silver.
However, she noted, a decision is already pending from the Supreme Court in Attorney General of Ontario v. G., which relates to mandatory listing on the Ontario sex offenders’ registry (Christopher’s Law) for a person who was deemed not criminally responsible.
The Ontario Court of Appeal unanimously allowed G’s appeal and concluded that the provincial and federal sex offender registries infringed G’s s. 15 Charter rights (and those of individuals in his situation), and that such infringements cannot be saved under s. 1. The Court of Appeal declared Christopher’s Law and SOIRA to be of no force or effect in their application to individuals in G’s situation. The Attorney General of Ontario appealed to the Supreme Court of Canada and arguments have been heard.
“Even though it’s not the same kind of offender,” said Silver, “it doesn’t make a difference when it comes to the Charter argument. I wonder, though, if the Supreme Court of Canada, when they come to their decision in G., is going to make the kind of broad comments about these kinds of legislation and how the Charter applies to them.”
Elliott agreed that there is a good chance the Supreme Court will want to review the Alberta Court of Appeal decision upholding mandatory registration of sex offenders.
“This is a live issue, and it seems to me that it may well be the sort of issue that the Supreme Court is ultimately going to have to revisit,” he said. “If they chose to revisit it, whether it’s in granting leave to appeal from this decision or in a subsequent case that may come along, certainly our concern will still remain as long as HIV non-disclosure is being captured under the law of sexual assault and these consequences therefore attach to people.”
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