I received an email last week from Miriam Mannak, a freelance writer based in Cape Town, South Africa who keeps on blog on AIDS in Africa. She recently contributed this excellent piece on the spectre of criminalisation on her continent to the Inter Press Service News Agency, whose mission is to give voices to the voiceless.
AFRICA: HIV Laws Do More Harm Than Good by Miriam Mannak (IPS)
CAPE TOWN, Jul 30 (IPS) - In Sierra Leone, a mother who transmits HIV to her child can be fined, jailed for up to seven years, or both. Human Rights Watch reports that in 2008, several men were arrested in Egypt simply for being HIV positive. New legislation is currently being discussed in Angola that could lead to a three to ten year jail sentence for those who knowingly pass on HIV.The legislation is inspired by a September 2004 workshop organised by the influential reproductive health organisation Family Health International developed an "African Model Law" intended to protect those who are infected and exposed to HIV.
But various civil society organisations fear that these legislative measures will hurt more than help the fight against HIV/AIDS.
Discourages testing, delays treatment
"If being HIV positive is being regarded as a crime, people will be less likely to get themselves tested," said Johanna Kehler, director of the Aids Legal Network (ALN) - a South African non-governmental organisation that aims to protect the human rights of people living with and affected by HIV/AIDS.
"This means that they are more likely to spread the disease unknowingly, and will not have access to antiretrovirals that may help to prolong their lives."
Jennifer Gatsi Mallet - coordinator of the Namibian branch of the International Community of Women Living with HIV/AIDS (ICW), a global network run for and by HIV positive women - agrees with Kehler’s statements.
"The criminalisation of HIV will be yet another reason why people will stay away from testing facilities and clinics," she said.
The International Planned Parenthood Federation, a global organisation that advocates sexual and reproductive health and rights, counts 58 countries around the world with laws in place to prosecute HIV transmission and 33 others that are considering passing such legislation. Of these, twenty are in Africa.
Women lose more
"Women will be the first ones in line to be prosecuted, as they are more likely to know their status compared to men, simply because they visit clinics more often, for instance during and after their pregnancy," Kehler explained.
Gatsi Mallet added that in "many parts of Africa, clinics and men are like water in fire. While some accuse health facilities of being unfriendly to men because most of the health care workers are female, others consider visiting as unmanly, especially when it comes to HIV and other sexual related transmitted diseases," she added.
"They therefore rather prefer to go to traditional healers, whom are in general more male orientated."
Because women are more likely to discover they are HIV positive, their male partners often blame them for bringing the virus home - regardless of the fact that the infection may well have travelled the other way.
"Women across the world, including in Africa, experience difficulties negotiating safe sex," Kehler said. "If a man does not want to use a condom, they often are left with no choice."
Angela from Cape Town, who requested anonymity - contracted the virus a few years ago. "I never had sex with anyone else but my husband, but I suspected that he was sleeping around. I just knew. So sometimes I asked him to use a condom, but he always blatantly refused," she explained.
"He said that a wife is supposed to trust her husband. When I went for prenatal care two years ago, I was told I was HIV-positive. After confronting my husband, he accused me of sleeping around and of infecting him. He threw me out of the house."
In countries like Egypt, such an accusation could lead to prosecution. The same is true in Togo, where HIV-positive people are prohibited by law from having unprotected sex, regardless of whether they have disclosed their status to their partner.
"In case of prosecution, women are left in a terribly vulnerable position, as many do not have the resources to, for instance, prove that they were HIV negative before intercourse," Kehler noted. "Neither can they prove if they did not do it deliberately."
Laws against mother to child transmission (MTCT) should also be banned, the ALN argues.
An HIV-positive mother can pass the virus to her child during pregnancy, whilst giving birth, or through breast feeding. Of the 370,000 cases of MTCT each year, about 90 percent occur in Africa, according to UNAIDS.
In countries like Guinea, Guinea-Bissau, Mali and Niger, a mother can be criminally charged if she does not take steps to prevent HIV transmission to baby, including taking antiretrovirals during the pregnancy.
MTCT is almost entirely preventable, by taking antiretrovirals and giving birth in a sterile environment. Breast feeding poses certain risks: WHO studies indicate that a mother who is HIV positive risks passing the virus on to her child. But in certain situations - for example where a mother does not have access to clean water to mix formula and sterilise bottles, but is on antiretrovirals - exclusive breastfeeding is recommended.
Formula-fed babies in developing countries are six times more likely to die from diseases like diarrhoea and respiratory infections than breast-fed babies, according to WHO.
"The problem is that many African women do not have access to proper health care facilities and cannot afford formula," Kehler said. "These are things governments should provide. If they fail, they should be the ones that are to be held accountable for MTCT."
SIDEBAR: Who's responsible for MTCT?
Chantelle Heunis* from Overcome Heights - an informal settlement near Cape Town - was infected by her now ex-husband with the disease in 1999. At the time she was pregnant with her second daughter.* not her real name.
"I only found out after my baby was three months old, after I went for a check-up as she was ill due to lactose intolerance. The nurse offered to test me for HIV - which was not a routine procedure back in the days. The results came back positive."
The next step was to test the baby. "It was dreadful, but thank god she was found HIV negative," Heunis said. "She is ten years old now, and as healthy as can be."
According to Heunis, it should not be allowed for women to be punished for MTCT. "I was lucky because I was in good hands, but many women do not have this privilege. They transmit the virus through unhygienic birthing practices, for instance, or because they do not have access to ARVs to prevent MTCT."
She also rejects the notion that HIV positive women should not be allowed to have children. "It is within our rights to have children. Besides, if a mother is HIV positive, that does not mean the baby is also."