Malawi HIV law amended to remove rights-infringing provisionsDec 12, 2017
Lilongwe – It was a victory for public health advocates in Malawi, as parliamentarians voted to reject coercive and criminalizing provisions in a long-deliberated HIV Bill that endangered human rights and had the potential to negatively affect the HIV response in the country.
The Bill, which was tabled earlier this year, included provisions to make HIV testing and treatment mandatory for select populations on a discriminatory basis, and that would criminalize HIV exposure and transmission, amongst others.
The achievement was largely a result of coordinated advocacy efforts by national as well as regional civil society organizations including AIDS and Rights Alliance for Southern Africa (ARASA) and Southern Africa Litigation Centre (SALC), both of which are sub-recipients of the Africa Regional Grant on HIV: Removing Legal Barriers. The Africa Regional Grant on HIV is implemented by the United Nations Development Programme (UNDP) and aims to address human rights barriers faced by vulnerable communities in Africa, and facilitate access to lifesaving health care.
Equally instrumental to the passing of the Bill, was the collaboration between UNDP Malawi and UNAIDS in facilitating proposed recommendations from key stakeholders that played an important part in informing Government and Parliamentary Committees.
A week prior to the debate in parliament, on 23 November 2017, ARASA and the Global Network for People Living with HIV supported the Centre for Human Rights Education, Advice and Assistance (CHREAA) to host several interventions in conjunction with Malawi civil society organizations and women's groups to challenge the problematic provisions within the HIV Bill. These activities included the convening of a consultation between parliamentarians, human rights organizations and representatives of women living with HIV civil society groups.
“We commend and support the incredible advocacy of Malawian civil society and women activists in particular who have refused to be silenced into accepting compromises on punitive laws and policies,” said Michaela Clayton, Director of ARASA. “The role of human rights in an effective HIV response is as important now as it has always been.”
Civil society and activists argued that these provisions would violate the Malawi Constitution, be at odds with international best practice, and compromise the country’s efforts to advance HIV treatment and prevention.
“While some provisions remain that are perplexing and of which we should remain wary – such as those placing duties on people living with HIV to adhere to treatment – Parliament’s acceptance of the amendments in the Act is a victory for citizens and supporters of human rights in Malawi who resisted efforts to enact the Bill in its original form at all costs,” said Annabel Raw, health rights lawyer at SALC.
The provisions ran counter to recommendations of the landmark 2012 report of the Global Commission on HIV and the Law, an independent body convened by UNDP which examined links between legal environments and HIV responses. The Commission found that punitive laws and human rights abuses are hindering HIV responses, costing lives and wasting resources.
Referring to UNDP’s support to the Government of Malawi that in 2012 led to development of an Assessment of Legal and Regulatory Environment for HIV and AIDS, Amitrajit Saha, Team Leader for the Africa HIV, Health and Development Team at UNDP said: “The new Malawi HIV Bill is a victory for the Malawian people whose efforts were supported by strong civil society organizations in the country. It is also a victory for evidence-based law reform and is an example for other African countries that continue to have similar provisions criminalizing HIV transmission.”
The UNDP-supported assessment of Malawi’s laws in the context of HIV and AIDS continues to serve as a key resource guiding efforts to create an enabling legal environment through evidence-informed policy and strategy that are grounded in human rights.