The ‘legislation contagion’ of the N’Djamena model law

A number of middle- and low-income countries in Asia and Eastern Europe are developing, or have recently enacted, HIV-specific laws, including Azerbaijan, Belarus, Cambodia, Georgia, Serbia and Ukraine (all of which have now had at least one reported prosecution). However, sub-Saharan Africa has seen the most dramatic increase in HIV-specific laws in recent years, in a trend characterised by the Canadian HIV/AIDS Legal Network as ‘legislation contagion’.¹

Where no laws criminalising HIV exposure or transmission in African countries existed at the turn of the 21st century, now some 25 African countries criminalise ‘wilful’ HIV exposure or transmission. Many of the recent laws are based on a model law developed by Action for West Africa Region–HIV/AIDS (AWARE–HIV/AIDS) at a 2004 workshop in N’Djamena, Chad. AWARE–HIV/AIDS receives funding from the United States Agency for International Development (USAID). The N’Djamena model law was conceived as human rights legislation, with many of its provisions touted as protecting women's rights.² South African Constitutional Court Justice Edwin Cameron has described how statutes criminalising  ‘wilful transmission’ came to be considered under the human rights umbrella. According to Cameron, “the [N’Djamena] model law for Africa...was intended as a beneficial intervention to protect people with HIV: its provisions on criminalisation...were added almost as an afterthought.”³  Cameron also points out that many African nations look for moral and legal guidance in the laws and practices of wealthy nations (such as Australia, Canada, Denmark, Finland, Norway, Sweden and the United Kingdom, all of which have prosecuted a disproportionate number of African migrants, often with stigmatising media attention); the effect, he says, is the “export [of] heightened stigma and discrimination.”³ criminalise ‘wilful’ HIV exposure or transmission. Many of the recent laws are based on

The Canadian HIV/AIDS Legal Network has also considered the soundness of the model law from a human rights perspective, with one of its concerns being the vagueness of provisions relating to ‘wilful transmission’ of HIV. ‘HIV transmission’ is defined as infection that “can occur through sexual intercourse, blood transfusion or the sharing of intravenous needle[s], skin piercing instruments or through [m]other-to-child transmission.”³ 

“Any person who wilfully transmits HIV by any means will be prosecuted for attempted murder and is punishable according to the provisions of criminal law.” Example of an HIV-specific criminal law based on the N’Djamena model law from Burundi. (Loi no 1/018 du 12 mai 2005 §42). See the chapter: Details for more such laws.

With no provisions for the affirmative defence of disclosure of HIV-positive status or the use of safeguards to reduce the risk of transmission, this suggests that legislation based on the N’Djamena model law could be used to bring criminal charges against: people with HIV who have practised safer sex; people with HIV who have attempted to disinfect shared needles; and women with HIV whose children acquire the virus via mother-to-child transmission despite their best efforts to prevent this from occuring. In addition, the term ‘wilful’ is only defined in the English version of the N’Djamena model law as transmission of HIV “through any means by a person with full knowledge of his/her HIV/AIDS status to another person.”³ There is no such definition in the French version. This suggests that individuals who are not diagnosed HIV-positive may be culpable in French-speaking countries that have enacted laws based on the N’Djamena model law.⁴

Despite the growing number of African HIV-specific criminal laws, there have been only a handful of reports of successful prosecutions. The reasons for this, suggests the Canadian HIV/AIDS Legal Network, is that the legislation is little known, it is often not part of the culture to file criminal complaints, and, given the vagueness of the legislation, difficulties with proof, and the high incidence of HIV transmission, such laws are practically unenforceable.⁴

UNAIDS has issued recommendations that include alternative ways of phrasing some provisions in the N’Djamena model law.⁵ These include defining ‘wilful transmission’ of HIV as “transmission of HIV that occurs through an act done with the deliberate purpose of transmitting HIV”. It also recommends that no criminal liability should be imposed upon:

• an act that poses no significant risk of HIV infection.

• a person living with HIV who was unaware of his or her HIV infection at the time of the alleged offence.

• a person living with HIV who lacked understanding of how HIV is transmitted at the time of the alleged offence.

• a person living with HIV who practised safer sex, including using a condom.

• a person living with HIV who disclosed his or her HIV-positive status to the sexual partner or other person before any act posing a significant risk of transmission.

• a situation in which the sexual partner or other person was in some other way aware of the person’s HIV-positive status.

• a person living with HIV who did not disclose his or her HIV status because of a well-founded fear of serious harm by the other person.

• the possibility of transmission of HIV from a woman to her child before or during the birth of the child, or through breastfeeding of an infant or child.

Case study: Mauritius. Concern over HIV-specific criminal laws impact on public health. "Legislators in Mauritius decided not to criminalize exposure to HIV or even HIV transmission. Legislators realized that legislation criminalising HIV exposure and/or transmission would not be able to withstand a constitutional challenge, because of the difficulties with proof, the likely vagueness of the definition of exposure, and the risk of selective prosecution. The main reason for not criminalising HIV transmission was, however, the concern about detrimental impacts on public health and the conviction that it would not serve any preventive purposes. Criminalisation would have created more problems than solving them. Therefore, Mauritius decided to put its resources where they are most likely to have a positive impact on reducing the spread of HIV: increased funding for HIV testing and counselling and for evidence-informed prevention measures."⁶ Rama Valayden, Attorney General and Minister of Justice and Human Rights, Republic of Mauritius.¹

1. Also available is a short interview with Minister Valayden on the UNAIDS website at www.unaids.org/en/