AN EPIDEMIC OF BAD LAWS: BUILDING RESISTANCE
Richard Pearshouse, Director, Research & Policy, Canadian HIV/AIDS Legal Network
Since 2005, an epidemic of HIV laws has swept Africa. National legislators often feel a strong impulse to ‘do something’ in response to the epidemic. The issue of HIV legislation is inherently sensitive – far too often it has lead to simplistic laws driven by prejudice rather than evidence. Momentum to legislate HIV appears to be increasing, rather than slowing. It’s vitally important to resist this simplistic urge to legislate.
In west and central Africa, the impulse to legislate has been stimulated by a USAID-funded ‘model law’ on HIV. Even though a detailed framework of human rights principles exists to guide policy-makers in legislating the pandemic, it would appear that the best thinking on how to approach this sensitive task has been ignored. ‘Bad’ laws for example may contain restrictions on HIV education to minors, mandate partner disclosure or contain broad provisions criminalizing HIV transmission ‘through any means’.
Among countries that have recently passed such laws, there are some egregious provisions. By way of example: Guinea’s HIV law makes HIV tests mandatory before marriage; and Sierra Leone’s HIV law explicitly criminalizes a mother living with HIV who exposes her child or foetus to HIV (other national laws could do this implicitly). These laws must be changed. There is no turning away from the long and taxing effort required to roll-back these laws for people and organizations working on issues related to HIV and human rights in these countries. As a matter of urgency, national strategies need to be developed to change these provisions.
But it’s often more difficult to amend a recent law than influence its content while it’s being drafted.
There are a number of African jurisdictions with draft bills under consideration at the moment. Where such laws are planned, both policy-makers and civil society organizations must take action and analyse their laws with a more critical eye. People and organizations working in countries that are currently developing HIV legislation need to actively engage in the drafting process by informing themselves of the content of the bills and submitting proposals for amendments. UNAIDS has prepared ‘alternative language’ to the particularly problematic provisions found in the ‘model law’ on HIV mentioned above which may be a useful advocacy tool.
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