WEST AFRICA: HOW ‘MODEL’ IS THE MODEL LAW?
The N’Djamena Model Law: Article 36 makes it an offence to wilfully transmit HIV.Article 1 definine 'wilful transmission' very broadly, as transmitting HIV ‘through any means by a person with full knowledge of his/her HIV/AIDS status to another person.'
This case study highlights an example of an HIV specific law and how policy makers appear to be passing legislation without considering the possible implications or potentially selective application of those laws. In the last few years, Western and Central Africa have experienced a dramatic increase in the number of countries introducing HIV-specific criminal exposure and transmission laws. The laws vary depending on country, and some are more severe than others. For instance, in Benin exposure to HIV alone is criminalized (even when transmission has not occurred), or in Tanzania proof of wilful transmission leads to life imprisonment.
Most of these laws are based on the African Model Law, created in September 2004 during a workshop by Action for West Africa Region– HIV/AIDS (AWARE–HIV/AIDS), in N’Djamena, Chad. Since 2005, 13 African nations have passed laws explicitly based on the model legislation and more countries are proposing similar action.
Despite having some policies that promote pre- and post-test counselling, the laws also contain provisions that are problematic and arguably detrimental to public health. In Tanzania for example, ‘wilful transmission through any means’ creates a grey area when it comes to enforcement. Because it is unclear what a reasonable person should do to prevent transmission, even people who use condoms or who disclose their HIV-status can be prosecuted for criminal transmission. In some cases the law is so broad that it could include criminal prosecution for the transmission of HIV from mother-to-child.
Find out more
Read Human Rights Watch's Open Civil Society Letter on gender in HIV legal frameworks
Read Alice Welbourn's article: 'HIV/AIDS a war on women'
Read the Canadian HIV/AIDS Legal Network's 'Legislation Contagion'