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Putting human rights at the centre of the HIV response

72 countries specifically allow for HIV criminalization, including 30 in sub-Saharan Africa. UNDP and the Global Fund to fight AIDS, tuberculosis and malaria are partnering with the Southern Africa Litigation Centre to place justice at the centre of the HIV response.

“When I visited her in prison, she thought she was in the wrong. When I explained she wasn’t, she burst into tears. She couldn’t believe it. She didn’t know her rights.” - Human rights lawyer Wesley Mwafulirwa

Wesley Mwafulirwa was at home in Malawi when he read the news. El*, a young woman living with HIV and on antiretroviral treatment, had been arrested for breastfeeding another person’s child. She was unrepresented at her trial and sentenced to nine months imprisonment with hard labour.

El was attending an event and had just finished breastfeeding her young baby when a friend asked for her help.

“She asked if I could help carry her own baby for a moment,” El explained. While holding the child, she noticed the infant was breastfeeding and immediately removed her.

Despite this, El was arrested and, for the first time in her life, had to leave her community to attend court. She was charged with carrying out a negligent and reckless act, likely to spread a life-threatening disease.

“I tried to defend myself, to tell them I had not deliberately done what I did,” she explained. “The hospital results proved the baby was not infected, but they would not hear me out.”

As a young lawyer dedicated to defending human rights, Wesley felt he had to act. He began gathering expert evidence to prove the “infinitesimal risk” of HIV transmission by women on antiretroviral treatment through breastfeeding. He was also determined to show El had not intentionally breastfed the child, and that she did not have the knowledge or belief that breastfeeding the child was likely to spread HIV.

“This was a woman who had no means of hiring a lawyer to defend herself. I’d just come back from a training on HIV criminalization and thought, I can do something about this. I took the case pro-bono,” Wesley says.

Together with the Global Fund, UNDP is working with 10 African countries to support human rights programmes for HIV and tuberculosis. The program aims to remove legal barriers by providing documentation of human rights violations, advocacy, strategic litigation and capacity building for legal professionals.

The training Wesley received was organised by the Southern Africa Litigation Centre, one of four African civil society organizations implementing the programme. The centre also assembled a team of local lawyers and activists to fast-track the appeal and create a support team for El.

“It was terrible,” said El, “Especially because I had a baby.”

At just 11 months old, El’s youngest child was imprisoned with her, and mother and daughter had to share limited rations. On 19 January 2017, after five months in prison, El’s appeal came before the High Court. This time, she was well represented.

“We went back to court and the people from the organizations explained everything,” she said.

The High Court acquitted El and ordered her immediate release.

In line with the recommendations of the Global Commission on HIV and the Law, the court found there was no evidence of intent to transmit HIV. It ruled that the scientific evidence the prosecution had presented failed to prove breastfeeding by a woman on antiretroviral treatment was likely to pass on the virus.

Additionally, the Court found the sentence grossly excessive and stated that incarcerating women with children should always be a last resort.

The case was a landmark decision, affirming that the law’s function should be to protect people living with HIV from “the unjust consequences of public panic.”

This is crucial, because punitive laws and practices can undermine public health efforts to address HIV by limiting access to prevention, treatment, care and support services.

Since the verdict, El continues to work with her support team to address the trauma she experienced and the painful impact of HIV stigma and discrimination. Two local women’s activists, Clara, from the International Community of Women Living with HIV and Edna, from the Coalition of Women Living with HIV and AIDS in Malawi, have worked with the chief of El’s village and her community to raise awareness on HIV, leading to the establishment of a support group for people living with HIV.

“The situation has changed. People are not discriminating against me anymore,” said El. “HIV does not mean the end of life.”

*Some names and identifying details have been changed for reasons of privacy.