By Elvis Torkuma Mom
Criminalization of HIV infection refers to criminal laws, policies, judicial decisions or application of any of these that tends to be unfair, prejudicial or discriminatory to Persons Living With HIV. It can also be unjust application of criminal laws against PLWHIV on the sole basis of their HIV status. It is also the act of finding someone criminally liable for HIV transmission.
The implications of criminalizing HIV infection are many given the stigma that still surrounds HIV and the persistence of HIV related discrimination. Criminalization is often directed disproportionately at those who are socially and/or economically marginalized. Also, criminalization of HIV infection promotes the view that, Persons Living With HIV (PLWHIV) are irresponsible and blame worthy. Creating a stand-alone legislation to criminalize HIV infection will only amount to discrimination of these ones and further stigmatization of same persons. All these could lead to mental health issues such as depression and eventual death.
The laws that criminalize HIV infection usually do not account for up-to-date science. Such laws are vague and overly broad. They account for only HIV related stigma and discrimination, therefore targeting the very vulnerable population they are meant to protect. For example, women who are likely to know their HIV status more due to antenatal testing will be apprehensive of the consequences of disclosing their HIV status if HIV transmission or criminalization becomes Law.
It Is also agreed that the use of words such as intentionally, willfully, knowingly and deliberately to couch legislations that criminalize HIV infection in states has posed a lot of hinderance in the way of interpretations. Besides, the elusive nature of the operative words usually takes away the required objectivity. It is difficult to arrive at an objective measure of what constitute willful, intentional or even careless transmission as intended by the pieces of legislation. Overly broad and vague criminalization of HIV infection laws negate the principle of legality and the rule of law.
There has been calls for criminalization of HIV infection in Nigeria largely due to perceived upsurge in the rate of infections of persons. States like Nasarawa, Akwa Ibom, Delta, Gombe, Kogi, Niger, Zamfara Bayelsa and others have passed legislations or proposed legislations which extensively criminalize HIV infection without due regard or consideration to public health, legal and human rights implications of the Law.
To address the issues around HIV criminalization, Lawyers Alert a legal and human rights organizations embarked on sensitization drive in some states in Nigeria with special focus on Akwa Ibom state HIV Anti-discrimination Law which criminalizes HIV infection. The efforts were made possible under a project that sought the non-passage of HIV criminalization sections contained in the Akwa Ibom HIV Anti -discrimination Bill.
Under the project, Lawyers Alert developed and produced Nigerian-specific Brochure for advocacy on the effects of HIV infection criminalization within the Nigerian context, laws and charters. Civil Society groups are encouraged to use same for advocacy in order to make state parliamentarians expunge sections that criminalize HIV infection from their laws.
Lawyers Alert further engaged PLHIV Networks and State actors in Akwa Ibom state towards ensuring sections in the state HIV Anti-discrimination Bill that criminalizes HIV infection were removed. Visits to Akwa Ibom State House of Assembly and the state Ministry of Justice to sensitize them on the ills associated with criminalization of HIV infection, such as stigma and discrimination which will lead to reduction in voluntary HIV testing amongst other implications were made. The process gave room for CSOs to make inputs into the Bill. Admittedly, this is a big win since before now there was no avenue for CSOs to share same.
The Akwa Ibom Bill has now been passed by the Parliament with same taking into account most civil society concerns. Regrettably, the offending sections have not completely been removed from the Bill. In effect Akwa Ibom state now criminalizes HIV infection.
The larger picture beyond Akwa Ibom state is to engage states early enough on that are at the stage of passage of HIV laws that criminalization should not be an option. About 16 states are yet to pass the HIV Non-Discrimination Law, and there is a possibility of a gradual shift towards copying what Akwa Ibom has done. States like Delta state seems to be going the Akwa Ibom way and there are possibilities others will follow suite.
- Elvis Torkuma Mom is a Program Officer with Lawyers Alert, a non-profit Human rights organisation.
