Western Africa

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Twelve countries in Western Africa have passed their own adaptations of the AWARE-HIV/AIDS model law since 2005.1,2 These are: Benin (2006); Burkina Faso (2008); Cape Verde (2008); Guinea (2005); Guinea-Bissau (2007); Liberia(2008); Mali (2006); Mauritania (2007); Niger (2007); Senegal (2010), Sierra Leone (2007) and Togo (2005). In addition, two Nigerian states – Enugu (2005) and Lagos (2007) – have passed HIV-specific laws criminalising 'wilful' HIV transmission. Proposals for HIV-specific criminal laws are currently being discussed in Ivory Coast (full text of the law can be found at the Global Criminalisation Scan) and Gambia (see the Global Criminalisation Scan). Only Ghana appears to have resisted calls from women's groups to create HIV-specific laws (see the Global Criminalisation Scan).

The Canadian HIV/AIDS Legal Network has critiqued most of these countries’ laws in two recent articles.1,2 It argues that many provisions mandating disclosure and calling for prosecution of HIV exposure or transmission are “poorly-considered” and “vague,” and that they threaten to undermine human rights. Notably, definitions of ‘wilful transmission’ in Guinea, Guinea-Bissau, Mali and Niger are so broad that they could be applied to any kind of unprotected sexual contact, and also to mother-to-child transmission of HIV.

Benin

Benin enacted an HIV-specific law based on the AWARE-HIV/AIDS model law, in 2006,1,2 but there are no further details regarding criminal provisions or prosecutions.

Burkina Faso

Burkina Faso enacted an HIV-specific law, based on the AWARE-HIV/AIDS model law, in 2008.1,2 There are reports of two cases, both involving women who were initially charged with wilfully attempting to transmit HIV but who were ultimately prosecuted and tried under non-HIV-specific provisions. Neither case involved HIV transmission or exposure through sexual contact.3

Cape Verde

Cape Verde enacted an HIV-specific law, based on the AWARE-HIV/AIDS model law, in 2008,1,2 but there are no further details regarding criminal provisions or prosecutions.

Ghana

In 2006, the Ghana Chapter of the Society For Women Against AIDS in Africa (SWAA) began lobbying policymakers and parliamentarians to adopt a version the AWARE-HIV/AIDS model law. At the same time, Ministry of Justice and the Attorney-General's Office initiated a process to incorporate ‘wilful transmission' into the Criminal Code.4 However, it appears that by 2008, policymakers and parliamentarians decided that an HIV-specific criminal statute was not necessary  (see the Global Criminalisation Scan).

Guinea

Guinea enacted an HIV-specific law based on the AWARE-HIV/AIDS model law, in 2005.1,2 (Relevant sections of the law can be found at the Global Criminalisation Scan.) The basic crime of ‘wilful HIV transmission’ arises out of both Article 35 (which makes transmission through sex or blood an offence) and the underlying definition in Article 1 of the term ‘wilful HIV transmission’. The definition is extremely broad and appears to include HIV exposure and transmission via any means, regardless of knowledge of HIV status. There are no reports of prosecutions.

Guinea-Bisseau

Guinea-Bisseau enacted an HIV-specific law based on the AWARE-HIV/AIDS model law, in 2007,1,2 which broadly criminalises 'wilful transmission'  (relevant sections of the law can be found at the Global Criminalisation Scan). There are no reports of prosecutions.

Liberia

Liberia enacted an HIV-specific law in 2008.5 Article 18 of the Anti-HIV/AIDS Act states that "wilfully transmitting HIV to another person or continuing to have unprotected sex with a partner while being aware of an HIV-positive status would be considered a crime”. However, exceptions are made for the following:

  • acts that pose "no significant risk of HIV infection"

  • individuals unaware of their HIV-positive status, or unaware of how HIV is transmitted

  • individuals who "practiced safer sex, including using a condom"

  • disclosure of HIV-positive status or partner awareness "in some other way" prior to sex

  • non-disclosure of known HIV-positive status "because of a well-founded fear of serious harm by the other person"

  • mother-to-child exposure or transmission.

There have been no reports of prosecutions.

Mali

Mali enacted an HIV-specific law, based on the AWARE-HIV/AIDS model law, in 2006.1,2 The definition of the crime of ‘wilful HIV transmission’ is extremely broad and appears to include HIV exposure and transmission via any means, regardless of knowledge of HIV status. Wilful HIV transmission is treated as attempted murder with a minimum prison sentence of five years and a maximum prison sentence of 20 years. There have been no reports of prosecutions.

Mauritania

Mauritania enacted an HIV-specific law, based on the AWARE-HIV/AIDS model law, in 2007 (full text of the law can be found at the Global Criminalisation Scan).1,2 The definition of the crime of ‘wilful HIV transmission’ is extremely broad and appears to include HIV exposure and transmission via any means, regardless of knowledge of HIV status. Prison sentences range from five to twenty years, plus a fine of between one and five million Mauritania Ouguiyas. Article 23 further specifies that any person diagnosed HIV-positive "who knowingly maintains unprotected sex with their spouse" will receive between ten to twenty years’ imprisonment and a fine of two to five million Ouguiyas. If this is the result of "negligence, carelessness, clumsiness, or failure to observe regulations", the prison sentence is reduced to between one and five years. Blood donation by a diagnosed HIV-positive individual is singled out for the harshest penalty – life imprisonment. There have been no reports of prosecutions.

Niger

Niger enacted an HIV-specific law, based on the AWARE-HIV/AIDS model law, in 2007,1,2 broadly criminalising 'wilful' transmission. There have been no reports of prosecutions.

Nigeria

Although there is no national HIV-specific law, the states of Enugu and Lagos passed HIV-specific laws that include provisions for prosecuting 'wilful' HIV transmission in 2005 and 2007, respectively  (see the Global Criminalisation Scan). There are no reports of prosecutions. A draft national HIV-specific law focusing on human rights, with no criminalisation provisions, is proposed  (see the Global Criminalisation Scan).

Senegal

Senegal enacted an HIV-specific law, based on the AWARE-HIV/AIDS model law, in 2010,6 but since this has not yet been published the exact criminal provisions are unknown (full text of the proposed law can be found at the Global Criminalisation Scan).

Sierra Leone

Sierra Leone enacted the Prevention and Control of HIV and AIDS Act, 2007, based on the AWARE-HIV/AIDS model law.1,2 This broadly criminalises ‘knowing’ or ‘willful’ transmission of HIV, and specifies ‘negligent’ mother-to-child-transmission as being criminally culpable. No prosecutions have been reported under this law. The proposed National AIDS Commission Act 20107 decriminalises "the possibility of transmission of HIV from a woman to her child before or during the birth of the child or through breast feeding of a child" and further clarifies acts that are not subject to criminal prosecution. These include:

  • acts that pose "no significant risk"

  • individuals unaware of their HIV-positive status, or unaware of how HIV is transmitted

  • individuals who "practiced safe sex, including the use of condoms"

  • disclosure of HIV-positive status or partner awareness "in some other way" prior to sex

  • non-disclosure of known HIV-positive status "because of a well-founded fear of serious harm by the other person".

Togo

Togo enacted an HIV-specific law, based on the AWARE-HIV/AIDS model law, in 2005.1,2 Article 53 defines 'wilful' transmission as “unprotected sexual relations with the intention of transmitting the virus or any other activity to wilfully spread the virus”. Prison sentences range from between two months and three years, plus a fine of between 50, 000 and 500,000 Communauté Financière Africaine francs. (Full text of the law can be found at the Global Criminalisation Scan.) There are reports of four prosecutions and two convictions, but there are no further details.6

References

  1. Pearshouse R Legislation contagion: the spread of problematic new HIV laws in Western Africa. HIV/AIDS Policy & Law Review 12 (2/3), 2007
  2. Pearshouse R Legislation contagion: building resistance. HIV/AIDS Policy & Law Review 12 (2/3), 2008
  3. Sanon P et al. Advocating prevention over punishment: the risks of HIV criminalization in Burkina Faso. Reproductive Health Matters 17(34): 146-153, 2009
  4. People’s Daily Online Ghana women's group lobbies for specific laws on HIV/AIDS. 17 February, 2006
  5. Medical News Liberia's House of Representatives passes HIV/AIDS confidentiality act. 9 September, 2008
  6. Kazatchkine C Criminalizing HIV transmission or exposure: the context of French-speaking West and Central Africa. HIV/AIDS Policy & Law Review 14(3), 2010
  7. Nyambe M Personal correspondence with the author. Unpublished, 2010

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A writer and advocate on a range of HIV-related issues, Edwin has a particular specialism in HIV and the criminal law. He works with national and international HIV organisations, including the International AIDS Society, GNP+ and UNAIDS, as well having as a long association with NAM as a writer on this topic and as the former editor of HIV Treatment Update. To visit Edwin's blog and respond to posts click here.

This content was checked for accuracy at the time it was written. It may have been superseded by more recent developments. NAM recommends checking whether this is the most current information when making decisions that may affect your health.