The High Court of Malawi has freed an HIV positive woman who was jailed by a magistrate court for accidentally breastfeeding someone’s baby.
Human rights activists have described the court’s decision as a landmark ruling on the application of criminal law to cases of HIV transmission and exposure.
A lower court jailed the woman for violating Chapter 7:01 Section 192 of the Malawi Penal Code which states that outlaws negligent act likely to spread disease dangerous to life.
“Any person who unlawfully or negligently does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be guilty of a misdemeanor,” reads the section.
The woman who was unrepresented at her trial was jailed for 9 months.
She appealed her conviction and sentence and challenged the constitutionality of Section 192 of the Penal Code for being vague and overbroad.
In her appeal, she raised expert evidence to show the “infinitesimally small risk” of HIV transmission by women on antiretroviral treatment through breastfeeding.
The State agreed that the appellant’s conviction and sentence should be overturned and set aside.
The High Court sitting in Malawi’s eastern town of Zomba acquitted the appellant and ordered her immediate release.
It held that the proceedings in the trial court were irregular and “blatantly bias” against the HIV positive woman, compromising her right to a fair trial.
The Court held that the appellant did not have the requisite knowledge or belief that breastfeeding the complainant’s child was likely to spread HIV and cautioned against the misapplication of criminal law in cases of HIV transmission and exposure.
The Court recommended the constitutional challenge be filed for separate determination considering the national interest in the issue.
Clara Banya of International Community of Women Living with HIV (ICW) Malawi Chapter branded the ruling as a great landmark as breastfeeding was not a crime.
“Breastfeeding is not a crime. Breastfeeding is recommended for women living with HIV who are on antiretroviral treatment by the World Health Organisation and in terms of the Ministry of Health’s Guidelines,” she said.
Commenting on the same development, Edna Tembo, the Executive Director of the Coalition of Women Living with HIV/AIDS (COWLHA) said the case highlighted ongoing discrimination against people living with HIV and illustrates the struggles faced by women living with HIV. “There is need for communities to understand facts about HIV transmission and exposure,” she said.
Annabel Raw, a Health Rights Lawyer at the Southern Africa Litigation Centre (SALC), which supported the appeal said the ruling had said a new precedent in southern Africa.
“This case sets important precedent regionally on the misapplication of the criminal law in cases of HIV exposure, transmission and non-disclosure. The Court cautioned against the trend of crafting specific offences to deal with HIV, and affirmed the importance of respecting the rights to privacy, dignity and due process of people living with HIV,” she said.
Michaela Clayton, Director of the AIDS and Rights Alliance for Southern Africa (ARASA), who acted as an expert witness for the appellant bemoaned that in the southern and east African region some laws are vague.
“Laws relating to the criminalisation of HIV transmission, exposure and/or non-disclosure in the southern and east African region are often overly broad and vague, violate criminal law principles, trump human rights and are based on myths and misconceptions about HIV and its modes of transmission, thus undermining effective public health,” Clayton
Lawyer Wesley Mwafulirwa of John Tennyson Associates represented the appellant in the case in which the judge issued an order that the names and personal details of the HIV positive woman should be anonymised and protected from public disclosure.
Malawi’s HIV prevalence is one of the highest in the world, with 10.6 percent of the adult population living with the virus.
An estimated 980,000 Malawians were living with HIV in 2015 and 27,000 Malawians died from HIV-related illnesses in the same year.
The Malawian HIV epidemic plays a critical role in the country’s low life expectancy of just 57 years for men and 60 years for women
Over the last decade, impressive efforts to reduce the HIV epidemic have been made at both national and local levels. New infections have dramatically declined from 98,000 new infections in 2005, to 28,000 new infections in 2015/16.
Malawi has also registered a reduction in children acquiring HIV, with New 4,800 new infections in 2015, a decline from 16,000 in 2010.
Despite such progress HIV and AIDS still affect more women in Malawi than men in different ways.
According to a national assessment of the impact of HIV on the population, carried out by the Malawi’s Ministry of Health in 2015-16, HIV disproportionately affects women in comparison to men.
The study found HIV prevalence among adult women to be 12.8 percent, compared to 8.2 percent among Malawian adult men.
The low socioeconomic status of women and gender inequalities drive the HIV epidemic in Malawi. Power relations between men and women are reinforced through sex, with men usually dominating and initiating sex.
Furthermore, there is widespread community-level stigma against women living with HIV/AIDS in the form of verbal attacks, social exclusion, and the interpretation of HIV status as an indicator of sexual immorality.