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Africa: Model Law Criminalizing HIV/AIDS Transmission Under Criticism

(Aug. 14, 2009) According to a news report dated August 8, 2009, the Model Law for HIV/AIDS, a document drafted during a 2005 workshop in Chad in which 18 countries from western and central Africa participated, is coming under increasing criticism from civil society organizations that see the model law as counterproductive in the fight against the spread of HIV/AIDS. The purpose of the document is to serve as the basis for national legislation criminalizing HIV/AIDS exposure and transmission. (Alarm over Laws Criminalizing HIV Transmission, CISA NEWS, Aug. 8, 2009, available at

Johanna Kehler, Director of the AIDS Legal Network (ALN), a South African organization that promotes the human rights of individuals living with HIV/AIDS, noted that the model legislation creates a disincentive for people to seek testing for HIV/AIDS. Kehler also pointed out that the model law particularly targets and exposes women to criminal prosecutions, as they are more likely to know their status due to their frequent visits to clinics in relation to pregnancy and other matters. (Id.)

Sierra Leone is one of the African countries that has “domesticated” the model law on HIV/AIDS. Sierra Leone law requires that anyone who is aware of the fact that he or she is infected with the HIV/AIDS virus take all “reasonable measures and precautions” to prevent the transmission to others. (The Prevention and Control of HIV and AIDS Act, No. 8 of 2007, UNHCR Refworld portal,,,,LEGISLATION,SLE,456d621e2,477e5b
) (last visited Aug, 10, 2009).) The law further states:

Any person who is and is aware of being infected with HIV or is carrying and is aware of carrying HIV antibodies shall not knowingly or recklessly place another person, and in the case of a pregnant women [sic], the foetus, at risk of becoming infected with HIV, unless that other person knew that fact and voluntarily accepted the risk of being infected with HIV. (Art. 21 (2), id.)

Violation of this provision is an offense punishable on conviction by a fine of up to SLL5 million (about US$1,470) and/or a prison term of up to seven years. (Id.)

Other African countries go even further in bolstering criminal sanctions as part of their incorporation of the model legislation into domestic law. Countries such as Guinea-Bissau, Mali, and Niger are said to have adopted laws that hold a mother criminally responsible for failing to take antiretroviral drugs during pregnancy in order to prevent the transmission of the virus to the fetus. Twenty African countries are apparently in the process of drafting laws criminalizing HIV transmission. (CISA, supra.)