Tanzania case study on how AIDS law

criminalizes stigma and discrimination but also stigmatizes

by criminalizing deliberate HIV infection

Ms. Millicent Obaso,Country Director, Futures Group

Chief of Party, Health Policy Initiative, Tanzania

XVIII International AIDS ConferenceVienna, Austria

Thursday, 22 July 2010

INTRODUCTION

• Tanzania National HIV/AIDS Policy (2001) • emphasizes that while the population has to be protected

from wilful and intentional spreading of HIV, the rights of PLHIV have to be safeguarded, including protection from stigma and discrimination (S&D)

• Effective responses require that human rights of PLHIV and people who are HIV-negative be observed

• When human rights are protected, fewer people become infected and even those infected or affected can cope better

HIV/AIDS (Prevention and Control)ACT 2008 (AIDS Law)

Tanzania adopted the HIV/AIDS (Prevention and Control) Act 2008To protect the rights of people living with HIV

To protect HIV-negative people from infection

Process began in 2001; wide consultation with many stakeholders

SUPPORTS RIGHTS AND ENCOURAGES RESPONSIBILITY

Rights/Positive AspectsRights of PLHIVNondiscriminationFree treatmentGender sensitive

ResponsibilityGet testedDisclose to partner

or spouseNo infection to

others (criminalizes deliberate spread)

POSITIVE ASPECTS OF THE LAW

The AIDS Law provides for:Prevention, care, and control of HIV and AIDS

Promotion of public health for persons living with HIV and AIDS

Appropriate treatment

Counseling and care for persons living with or at risk of HIV and AIDS and for related matters

Stepped up efforts to meet the needs of orphans and vulnerable children

PROHIBITION OF STIGMA AND DISCRIMINATION

Several provisions protect the rights of persons living with HIV and AIDS, including for example, Section 15 prohibiting compulsory HIV Testing

Part VII of the law entirely prohibits stigma and discrimination of persons living with HIV and criminalizes it

CRIMINALIZING WILFUL TRANSMISSION OF HIV

The Law stipulates that “Any person who wilfully and intentionally transmits HIV to another person commits an offense, and on conviction shall be liable to life imprisonment

When the law was developed, it targeted those who were infecting deliberately, in a way pre-empting instant justice/mob justice by people in the community

CHALLENGES WITH CRIMINALIZING TRANSMISSION

False assumption that criminalization will deter infection

Difficulty in proving deliberate transmission

It is also feared that HIV testing and disclosure will lead to prosecution and violence instead of treatment and care, especially for women

GENDER DIMENSIONS OF CRIMINALIZATION

Women more likely to be tested - Criminalizing HIV transmission can result in disproportionate prosecution of women because more women are tested as part of pre- or ante-natal medical care and, therefore, know their HIV status

Lack of decisionmaking - Women's inability to safely negotiate condom use or disclosure to partners who might have been the source of their infection is not recognized in the law as a defense against criminal penalties

PMTCT – could women be targeted for deliberate transmission to children? What if they do not have access to ARVs for prevention? Or have limited infant feeding options?

CHOICESDo we throw out the whole law when

many aspects of the law are good (95%) and only 5% on criminalization of deliberate infection is controversial?

OPPORTUNITIESPLHIV voices need to be heard; people should

engage and challenge what is not workingLaw provides opportunities to study it, invest

in it, identify what works and what does not work

Based on evidence from Tanzania, we can identify how to reform criminalization aspects

Parliamentarians are engaged in dissemination of the law; there is an opportunity to further engage them on reform of the law

ROLE OF THE HEALTH POLICY INITIATIVE

Assisting the Ministry of Health and Social Welfare in collaboration with TACAIDS to develop implementation regulations

Designed a database with the Tanzania Commission for Human Rights and Good Governance to track cases of stigma and discrimination

Translated a popular version of the law into Swahili, being disseminated by PLHIV, MPs, and others

Established an Advocacy and Action Committee (AAC) to publicize the contents of the law so that people can know their rights and be able to identify challenges needing further interventions

Compiling feedback on the criminalization clause

CONCLUSIONPLHIV voices need to be heard. To make any changes in this law, it will take

time - it has to be used by the people and evidence obtained to show what is working and what is not working.

It is, therefore, important not to throw out the baby with the bath water. Let us use the positive aspects of the law that safeguard many rights, including those of PLHIV, as we gather evidence to warrant change.

THANK YOU

Learn more about the Health Policy Initiative at

www.healthpolicyinitiative.com