sexual health and human rights in the african region - The ICHRP

pregnant woman, the foetus) at risk of becoming infected with HIV. Article 21(2)
provides a defence of informed consent. Articles 21(1) and (2) of the Sierra
Leonean law are similar to section 24 of the Kenyan HIV/AIDS Prevention and
Control Act save in one respect. The only difference is that Sierra Leonean law
spells out that mother-to child is also included in the prohibited conduct.
[56] Criminalization of HIV transmission in HIV-specific legislation has also been
conceived with a view to protecting people from transmission in the context of
receiving blood products and health care provision. The common law and the
civil law introduced to African countries through colonialization has historically
imposed civil ability that is applicable, for example, to instances where a health
care provider or a manufacturer of a blood product negligently causes HIV to be
transmitted to a patient. 441 Where transmission is done intentionally or
recklessly, the conduct constitutes both a civil wrong as well as a criminal wrong.
However, notwithstanding that such a civil wrong and a criminal wrong is
already recognized under existing laws, some African countries have,
nonetheless, adopted legislation to specifically address criminal liability for HIV
transmission by service providers. The advent of the HIV pandemic has spurred
some countries to pass HIV-legislation spelling out liability for HIV transmission
in the course of service provision.
[57] Among the sampled countries, Kenya and Tanzania have HIV–specific
legislation for punishing service providers. Under section 12 of the Kenyan
HIV/AIDS Prevention and Control Act ‘a person who, in the course of his
professional practice, knowingly or negligently causes another to be infected
with HIV through unsafe or unsanitary practices or procedures’ commits an
offence. Under section 48 of the Tanzanian HIV/AIDS (Prevention and Control)
Act, it is an offence to cause the transmission of HIV through ‘intentionally
breaching provisions relating to safe procedures and practices. But while the
penalties under both Acts are not particularly severe and certainly not higher
than what would be imposed by ordinary civil and criminal liability, the creation
of the offences arguably serves the purpose of reinforcing the importance of
adhering to safe procedures in order to protect patients from the danger of
infection.
[58] Responses to the HIV pandemic are also reflected in sentencing procedures.
African courts treat HIV as an aggravating factor when sentencing for offences
such as rape and indecent assault. Most countries have been able to use existing
sentencing procedures to treat HIV as an aggravating factor and thus a factor
that warrants a more severe sentence. Others jurisdictions, however, have
introduced HIV-specific sentencing provisions. Zimbabwe is a case in point.
441 J Burchell Principles of Delict Cape Town: Juta (1993).
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