Bots moves to criminalise HIV infections

Gaborone – Botswana is on course to criminalise HIV/AIDS infection following the passing of the Public Health Bill into law by Parliament last week.
According to some clauses of the Bill, if an individual is HIV positive and he or she does not inform whomsoever he or she has sex with (whether condom was used or not) they may go to prison for 5 years or pay R111 866 penalty or both.
Among others, the Bill also states that those accused of spreading HIV will be quarantined or put in isolation for a certain period of time and their HIV status can be disclosed to other parties without consent.
Analysts say this could lead to massive change in the handling of HIV/AIDS matters by the health care personnel, the criminal justice system, caregivers and the government.
Some activists are also up in arms saying the Bill will reverse the gains achieved in fighting the HIV/AIDS scourge as it encourages discrimination.
Responding to questions from The Southern Times, Health Minister, Dr John Seakgosing, said the Public Health Bill, which seeks among other things, to isolate people who infect others while knowing their status, would apply to everyone.
He added that the Bill that was passed this past week, will not apply only to ordinary citizens.
According to Seakgosing, if the president, ministers and legislators are found to be infecting others carelessly, they will be brought before the courts where the magistrate will take a decision to isolate them from the public.
While he explained that the Bill does not seek to empower medical practitioners to force clients to undergo tests, but Clause 104 (3) (b) provides that “the director or a person authorised by him may, where necessary and reasonable, require a person or a category of persons to undergo an HIV test”.
“Clause 104 (4) then provides that where a person required to undergo a test under Clause 104 (3) refuses to do so, the director may apply to a magistrate for an order requiring that person to undergo the test.”
The clause at sub-section seven gives medical practitioners authority where necessary to inform partners, or caregivers of people infected with HIV about the status of such people.
The minister argued that the clause is aimed at curbing reckless behaviour of some HIV infected people who put others at risk of contracting the virus.
Clause 116, which deals with transmission of HIV calls for punishment for a person who is aware of being infected with HIV to place another person at risk of being infected by the virus.
In a presentation before Parliament, Seakgosing had outlined that such law would strengthen the current Public Health Act by making it relevant to contemporary public health issues.
He explained that prevailing conditions concerning public health matters necessitated a review of the existing Act.
“Clause 105 also proceeds by the general provision which emphasises consent at a personal level of those capable of giving consent as well as those that are responsible for making decision for them.
“Sub-Clause (2) gives exception though as a matter of practicality to ensure that a medical practitioner who is faced with a situation of a patient who may for instance under normal circumstances, would have been able to give consent or it may be an emergency situation and therefore, he or she must treat that patient and that patient is unable to give such consent or where that test is clinically necessary or desirable in the interest of the public,” explained Seakgosing.
He further explained that where anybody feels that their rights have not been taken into consideration, despite the protection of the medical practitioner under Sub-Section (3) the courts, when considering any case as to whether this clause has been violated will use the requirements of such clause to check whether one’s rights have indeed been violated.
“Let it be understood that although the law may protect a practitioner, every person still has the constitutional right to approach a court where they feel that their rights have been violated and this provision was drafted bearing this in mind.
“A medical practitioner, nurse or dental practitioner may also where in his or her assessment has established that a procedure on a patient is not an urgent one, carry out or require to be carried out an HIV test,” said the Minister. To answer this question in general, Seakgosing explained further: “It is the duty of any responsible government, especially one that spends as much resources on the treatment of a preventable disease such as HIV/AIDS, to ensure that where there is irresponsible behaviour at the public expense such irresponsible behaviour is attended to and if need be by way of imposing a legal obligation not to knowingly infect other members of the public.
“Indeed the protection that this provision seeks to provide already had been afforded to this House in rape cases and other courts have indeed implemented this in ensuring that they met out stiffer punishments to those that act that irresponsibly.”
The minister has also argued that the existing laws could no longer cope with challenges emanating from re-emerging diseases, human rights, environmental degradation, and internal or cross border health surveillance.
But AIDS advocacy group Botswana Network on Ethics Law and HIV/AIDS (BONELA) says it intends to take government to court over the Public health Bill that has approved by parliament.
BONELA director, Uyapo Ndadi, said in an interview that his organisation is only waiting for President Khama to sign the bill into law before it can approach the high court to challenge certain clauses in the Bill as they are unconstitutional.
Several opposition MPs attempted to repeal the clauses when the bill was at committee stage last week but were defeated by ruling party’s lawmakers who have the majority in the national assembly The Bill has also caught the attention of UNAIDS that wrote to Botswana Government last year registering concern about some clauses of the Bill.
UNAIDS said some provisions in the Bill will undermine the progress made thus far by deterring people from seeking HIV services.
It also said the bill carries provisions allowing for mandatory HIV testing (clause 105), disclosure of HIV status (clause 106), and the isolation of people living with HIV in certain circumstances [clause 116 (10).
UNAIDS had asked for the HIV provisions to be removed from the Bill and be dealt with in a subsequent legislative framework or placed with alternative provisions more in line with medical ethics and rights based approaches to health and HIV.

April 2013
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