The famous model law
“HIV/AIDS has no cure,” is a global truism. Much as the statement says nothing new and interesting, it has been the springboard of a global challenge. It has challenged the ingenuity of many scientists, politicians, social workers, religious leaders and lawmakers, in the bid to combat the pandemic.
My major interest in this deliberation, is the efficacy of the law makers in ending the HIV/AIDS scourge on the continent. Laws that make the transmission of the disease an offence are nothing new in the “developed world”. In 2008, a man was sent to jail for infecting his girlfriend with HIV, even though he was unaware of his status. In 2006, an HIV positive American, Willie Campbell in Texas, spat on a police officer. A Texas judge ruled that Campbell had used a deadly weapon against the officer.
In the year 2005, participants from 18 countries met a regional workshop in N’djamena, Chad, to adopt a model law on HIV/AIDS for West and Central Africa. The purpose of the document was to serve as the basis for national legislation, criminalizing HIV/AIDS exposure and transmission. This law came under extensive criticism and scrutiny by numerous organizations in pursuit of an AIDS free world. Johanna Kehler, the then Director of AIDS legal network in South Africa, noted that the model created a disincentive for people to seek testing for HIV/AIDS.
I find article 21 ridiculous and so do many critics! It states that,“Any person who is and is aware of being infected with HIV or is carrying and is aware of carrying HIV antibodies shall not knowingly or recklessly place another person, and in the case of a pregnant woman, the fetus, at risk of becoming infected with HIV, unless that other person knew that fact and voluntarily accepted the risk of being infected with HIV.”
Such a clause in the law gets turned on its head when it comes to pregnant women. The mere fact that the pregnant woman is infected, by default, there is risk of the foetus getting infected with the virus. The risk is born from the fact that the foetus depends on the woman. So whether they are implying that the mother should be keen to use the mother to child prevention strategies, there’s a default risk they have overlooked. This clause implicates the pregnant infected mother anyhow! More still, how in the world is the fetus supposed to be aware of the risk it is exposed to? I am not a lawyer and I know the lawyers can raise their arguments but that doesn’t cover the ridiculous nature of such a clause. Countries like Guinea-Bissau have adopted laws that hold a mother criminally responsible for failing to take antiretroviral drugs during pregnancy in order to prevent the transmission of the virus to the fetus. Just when the Africans thought they were emulating a good remedy from Europeans and the West, the modal law did more harm than good because it hampered the ability of individuals, communities to respond to the epidemic, as it kept them in held in the mindset of being criminals.
I believe that legal and policy statements act as obstacles to HIV response in Africa because the law has the power to incite that which it is prohibiting.