This case concerns the rights of people living with HIV, and a human rights-based approach to consideration of a criminal provision regarding the negligent, reckless or unlawful transmission of a disease dangerous to life.
High Court of Malawi, Zomba District Registry
EL applied for an anonymity order based on the stigma associated with HIV/AIDS in Malawi and the best interest of all the infants involved in the case. The High Court ordered that the names and personal information of the appellant, complainant and their children be removed from all publicly accessible court documents, as well as any information in the press that could lead to identification of the parties in order to protect the parties from public discrimination and any further non-consensual release of information pertaining to their HIV status.
In the aftermath of the case, the Southern Africa Litigation Centre (SALC), in conjunction with International Coalition of Women (ICW), Malawi and the Coalition of Women Living with HIV/AIDS (COWLHA) are providing the appellant psycho-social counseling, as well as support services for her and her family. These organizations have been instrumental in working within the community and specifically with community leaders, to change the narrative around issues concerning HIV treatment and work towards eliminating the stigma associated with HIV/AIDS.
This decision raises several issues of critical importance at the intersection of the rights to health, due process, equality, dignity and privacy as well as the principle of best interests of the child. It demonstrates the importance of a human rights-based approach to the criminalization of PLHIV and plays a role in advancing the substantive equality of PLHIV through a challenge to existing prejudice and stigma.
One key aspect of the case concerns the deleterious impact of prejudice against PLHIV in the adjudication of their cases and the right to a fair trial. Furthermore, the ruling underscores the importance of protecting the rights to dignity and privacy of PLHIV. At a procedural level, it is significant that the High Court passed an anonymity order to protect the parties in this case from any additional non-consensual exposure of their health status and unwanted public attention. Confronting stigmatization of PLHIV is critical towards protecting the human right to health, particularly as pertains to the accessibility component of this right. A 2017 UNAIDS report is particularly instructive in this context. It provides evidence on how stigma and discrimination against PLHIV is severely undermining the right to health and highlights best practices on meaningfully addressing stigma and discrimination.
The High Court in this case clearly rejects the overly broad application of criminal law to HIV non-disclosure, exposure and transmission. The judgment provides essential guidance on the limits of the application of criminal law to cases pertaining to HIV and emphasizes the need to ground judicial analysis in scientific evidence and ensure clear conformity with the human rights framework. This rights-based approach to assess criminal law applied against PLHIV is particularly significant given the current global context of widespread criminalization of the nondisclosure, exposure and transmission of HIV. The Court’s perspective is explicitly aligned with the UN position that broad criminalization of HIV exposure, and transmission is contrary to internationally accepted public health recommendations and human rights principles.
Last updated on 2 March 2018
Dr. Ruth Margaret Bland, Medical Expert (Amicus for the Appellant)
Ms. Michaela Clayton, director of AIDS and Rights Alliance for Southern Africa (Amicus for the Appellant)
Southern Africa Litigation Centre (SALC)
International Coalition of Women (ICW), Malawi
