Behind Bars: A Bad Law is More Breached than Honoured

This interview with Chrispine Sibande, a lawyer and Deputy Director for Legal Services of the Malawi Human Rights Commission, is part of the Behind Bars series by Kevin Osborne and the International Planned Parenthood Federation.

“I have a learnt a lot from my interactions with people who are HIV positive. At a personal level it has also enabled me and my wife to discuss these issues more, because we discuss some cases looking at what happened, and we realize and learn that being HIV positive is not strange – it is just part of life.  Nothing really changes when people are positive.” 

Chrispine Sibande, is a lawyer and Deputy Director for Legal Services of the Malawi Human Rights Commission.

HIV is being criminalized right now in Malawi.  This is through the Penal Code – Section 192.  It states that ‘any person who unlawfully or negligently commits does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be guilty of a misdemeanor.’  So, we have seen cases in Malawi where the courts have charged people under this provision on issues of HIV. People have been prosecuted because of their HIV status.

One example from 2009 relates to sex workers who were charged with an act of negligence (contrary to section 192 of the penal code) in Mwanza district, for ‘unlawfully and knowingly committing an act likely to spread infection of the disease HIV and AIDS by practicing prostitution’.  This happened in three different cases.

The women were arrested at a bar, and taken by the police, with some men.  All the men were released – only the women remained in custody.  They were ordered to board a police vehicle and taken to Mwanza District Hospital.  At the hospital, there were two police officers in the corridor, they were taken into a room where they saw they saw two medical officers and additional two police officers, and were simply told ‘can we have your hand?’  So then blood was taken from them, but they didn’t know what for – until they were taken to court.  They were charged with the offence of spreading a venereal disease, specifically HIV

These women didn’t have legal representation so they pleaded guilty because the police intimidated them.  The court read out their HIV status, and it was then that these women realized that the blood samples taken at the hospital were meant for an HIV test. It was the first time that the women had learned of their HIV status. The test results were announced to everybody in court– in front of so many people. Anyone who was in the court room at that time knew the HIV status of the accused persons.

So we partnered with another NGO and followed up the cases – I interviewed the women, reviewed the court files to find out exactly what happened, and we are now considering a Constitutional Challenge. This kind of action violates the Malawi Constitution and international human rights standards. In our Constitution we have Section 20, which guarantees the right to non-discrimination, and Section 21 that guarantees the right to Privacy and to Dignity. In one of the cases, the women were asked to leave Mwanza as part of the judgment, which is also strange because that is a clear violation of liberty and violation of the person’s right to live anywhere in Malawi.

We are trying to challenge the action from a human rights perspective based on our Constitution.  In the Judicial Review we are asking the court to condemn the action of the police, the District Hospitaland the Magistrate and say it was unlawful, arbitrary and unreasonable.  We are seeking declarations from the court on all three issues and that these women should be compensated. I have drafted the papers and I am ready to go to court.

Many of these women have now settled outside Mwanza, out of fear of being labeled ‘HIV positive’ and seen as ‘stupid ladies deliberately spreading HIV’.  When I interviewed the Magistrate and also the police, they said ‘Oh why are you bothering about sex workers?’   I think the sex workers were deliberately targeted because they were seen to be ‘less human’.  Of course evidence shows that almost every day these women are beaten or have money or cell phones confiscated from them, but there is that feeling that these women are ‘after all, prostitutes’.  Nobody will listen to them.  That is the spirit of the message that I got from the Magistrate and the police when I interviewed them. 

So when you look at these particular cases it is very clear that people are already being criminalised for the transmission of HIV in Malawi.  At the same time we have a draft HIV Bill that states that we intend to criminalise HIV and AIDS. In Malawi we have a constitution and we have ratified several human rights instruments, so the application of the criminal law is a very serious setback in Malawi. 

When you look at the human rights standards it is clear that they don’t encourage criminalisation of HIV and AIDS.  And we made that position known, but the problem was that we weren’t part of the Commission – the Malawi Human Rights Commission were simply asked to make a submission.  We made it clear that we should never ever criminalise issues of HIV and AIDS.

The reasons are quite obvious.  We need to address HIV as a health issue and there are obligations that the State has to meet to make sure that services are available and that people have treatment, and also that information is available.  It is also very clear that there is a lot of stigma attached to HIV

Now the moment you try and criminalise it, then people fear prosecution, and it won’t help with the provision of condoms, of ARVS, or for people to come forward and go for testing. If we look at criminalisation you can see how it targets people who know they are HIV positive and limits them having sex.  The response to HIV should be a whole crusade where we need to get everybody involved. 

The proposed HIV Bill introduces a number of positive things so to condemn the whole Bill would be unfair. When the Bill addresses issues of stigma and discrimination – for example that an employer will be prosecuted if they deny employment to someone on the basis of their HIV status – then it can be helpful. But imagine the consequences of criminalizing HIV particularly for women and for vulnerable groups such as sex workers? There are certain issues in the Bill that would be a setback for the fight against HIV.

Not only as a human rights lawyer but also from looking at the context of HIV in Malawi, honestly, criminalizing HIV does not make sense.  For example witchcraft – it is an offence in Malawi to allege that someone is a witch.  Now this is the criminal position – the question is what are people doing about it?  Everyday people are accusing each other of witchcraft.  Everyday people are calling on traditional doctors.  Everyday, people are being arrested for witchcraft.  So the issue is when you have a bad law it is more breached than honoured. 

For HIV you need to make sure that people have information, and then that there is a provision to access condoms, and that people know their HIV status, and, if they are positive, the government provides health services like ARVs and counselling.  The solution that ‘we will lock you up or arrest you because you are HIV positive’ will just force people underground, and as a result there will be more – not less – people who have HIV.  We would just be perpetuating the problem.

My work has simply helped me to know that a person who is HIV positive is not different from any other person.  I have also realized that there are serious challenges for people living with HIV – treatment remains a challenge in terms of access to ARVs, there is a lack of information, and other things at the national level.

My work has just helped me to understand more things from a legal perspective, a social perspective and a psychological perspective.   I have a learnt a lot from my interactions with people who are HIV positive. At a personal level it has also enabled me and my wife to discuss these issues more, because we discuss some cases looking at what happened, and we realize and learn that being HIV positive is not strange – it is just part of life. Nothing really changes when people are positive”.

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