11th February 2013

  1. The Botswana Network on Ethics, Law and HIV/AIDS (BONELA) her network members and partners; stand by its decision to advocate for the rejection of some portions of the proposed 2012 Public Health Bill as was tabled before Parliament. This reasoning is founded on the basis that, the bill not only does it contains provisions that contravene international law on HIV/AIDS and the rights of people living with HIV/AIDS to equality, dignity, respect and non- discrimination, but it undermines progress made in fighting the stigma and discrimination associated with HIV/AIDS.
  2. First of all; the requisite and highly encouraged consultation procedures in the formation of the said bill were not followed. UNAIDS’ Policy Brief titled The Greater Involvement of People Living with HIV maintains that where policy or legislation is formulated that affects people living with HIV, they are to fully participate in its development and monitoring.
  3. Furthermore, Botswana as a member of the United Nations, and one of the states that were present when the United Nations General Assembly formed the Political Declaration on HIV and AIDS, is bound by the commitments made. Through this body, Botswana has committed to engage people living with HIV in decision making, planning, implementation and evaluating the response, and to partner with local leaders and civil society, including community-based organisations. Leaving such organisations out of the process does not demonstrate that the Ministry of Health has very much confidence in their ability to know what is best for them, or even to speak for themselves. The fact that BONELA, and similar organisations where side-lined in the formation of this potential piece of legislation was a serious oversight by the Ministry of Health.
  4. The Ministry of Health need to be reminded that laws are meant for the protection of the citizens of a country, they are not meant to impose burdens on some of the most intimate details of their lives. Where there are fundamental rights and freedoms being exercised responsibly, this should not be tampered with. Laws are not meant to be a defence mechanism for the state against some of the vulnerable members of society, which could expose them to more abuse and possibly discrimination. They should rather protect them against such abuse and discrimination. It is in the interest of these members of society that BONELA and her partners vehemently disagrees with some of the provisions stated in the Public Health Bill and wishes that these concerns be given due consideration and reviewed accordingly.
  5. HIV Testing: In terms of the provisions of the bill; Clause 104 (3),(b) provides that the Director or a person authorised by him may where necessary and reasonable, may require a person or category of persons to undergo an HIV test. Clause 104 (4) further provides that that when a person refuses to do so, the Director may apply to a magistrate for an order requiring that the person undergo such tests. This clause is vague and subject to mis-interpretation and abuse by medical practitioners as it firstly does not define in what context the terms necessary and reasonable may be used. Secondly it does not provide guidelines that will ensure that medical practitioners will not abuse the provision for their own inquisitiveness. Thirdly it does not state whether the individuals will be exposed to pre and post counselling during this process which is a right of every client.
  6. The Ministry of Health; in their response during the press conference, said that “the need for the person to undergo the HIV test must be necessary and reasonable and can only be enforced through having the facts presented before, and determined by a court as grounds for refuting arguments that medical practitioners can abuse the provision to satisfy curiosity. This point of departure does not have a basis as guideline 3 of the International Guidelines on HIV/AIDS and Human Rights (2006) clearly states that “exceptions to voluntary testing would need specific judicial authorization, granted only after due evaluation of the important considerations involved in terms of privacy and liberty.”
  7. The aforementioned Clause does not make mention the rights to liberty and privacy of the person and in subsection (7), it places the interest of the public over that of the rights of the individual. Furthermore, it does not state what measures will be enforced if the privacy and liberty of individuals is not respected. Thus, although the public health is of importance, it should not undermine the rights of other individuals as shown in the Global Commission report which states that “the law exists for important reasons beyond public health-the promotion and protection of human rights.”
  8. Clause 104(3),(a) which states that HIV testing may be offered to persons in accordance with the procedures or guidelines issued by the Director for the purpose of facilitating access to health services and programmes and (104)(3),(b) further provides that the Director, or any person authorised, by him or her, may, where necessary and reasonable, require a person or a category of persons to undergo an HIV test.
  9. As with the clause referenced above, the provisions in this clause are vague and leave the law vulnerable to abuse because in this instance, the context of terms such as necessary and reasonable are not adequately explained in relation to accessing health care facilities and services. Secondly as already mentioned above, there are no guidelines or measures to determine what medical state a person needs to be in order to test for HIV before accessing health services. The vagueness and lack of clear procedures and guidelines may not only lead to misinterpretation, but may undermine the right to access medical facilities and may further shun people away from accessing medical care for fear of being tested for HIV.
  10. Clause 105(2),(b) which empowers doctors to conduct HIV test on patients without their knowledge, does not only violate the right to privacy entrenched in our Constitution and the International Covenant on Civil and Political Rights (ICCPR). It contravenes International guidelines on HIV/AIDS and human Rights (2006). Guideline 3(b) which clearly states that “apart from surveillance testing and other unlinked testing done for epidemiological purposes, public health legislation should ensure that HIV testing of individuals is only performed within the specific consent of the individual.”
  11. However in its response, the MoH argues that the provision of this clause applies in cases “where the client is unconscious, and unable to give consent; and the practitioner believes that such a test is clinically necessary or desirable in the interest of the person.” The basis for this reasoning are not practical as the terms “necessary” or “desirable” are not clearly defined, thus the doctors may use their own subjective opinions when determining such cases.
  12. The Ministry of health claims that the provision in relation to dental and surgical procedures in clause 109 is in line with best international practice. Their claim has no basis and is not supported by international human rights instruments. The International guidelines for HIV/AIDS and Human Rights (2006) clearly does not support the testing of individuals without their consent and clearly states that in cases where exceptions in voluntary testing occurs, authorization may be granted after the considerations involved in terms of privacy and liberty.
  13. Disclosure: Clause 116 (7) empowers a medical practitioner who is responsible for the treatment of an HIV infected person the authority to disclose the person’s status to their partner or caregiver after giving the person a ‘reasonable opportunity’ to do so. Firstly we find the reasonable opportunity factor highly ambiguous. Who determines what a reasonable opportunity to disclose one’s HIV status is?
  14. Secondly, if the person is accessing treatment, it bears testament to the fact that they are taking responsibility for their health. It is just not justifiable for a healthcare worker to impose disclosure of a patient’s HIV status when they see fit. This clause is highly offensive and could also harm the public’s desire to know their status or make people default treatment as they may fear that they might be pressured to disclose their status. To tell one’s sexual partner as a means of preventing the spread of HIV violates the individuals’ rights to privacy, respect and dignity because not disclosing ones status does not mean that an individual will infect others neither will it guarantee the prevention of the spread of HIV/AIDS. There are deeper socio-economic issues that deserve to be interrogated further when planning on the prevention of the spread of HIV/AIDS than merely requiring people living with HIV to disclose their status. It is therefore, recommended that that this section be removed and disclosure by the medical practitioner only be done as it relates to section 4, where it is done at the request of the patient.
  15. Clause 116 (10)(b) and (c) restricts a person who is infected with a HIV from freedom of movement if they is reason to believe that they are not complying with section (1), (2) or made a request under subsection (4).
  16. This is a violation of the right to freedom of movement and contradicts guideline 3d of the International Guidelines for HIV/AIDS and Human Rights (2006) which provides that “public health legislation should ensure that people should not be subjected to coercive measures such as isolation, detention or quarantine on the basis of their HIV status.” That being said, there is no legal or moral justification to detain an individual because of their HIV status. In justifying this clause the MoH states that this is not limited to HIV infected people, but is imposed when it is determined that this action will help mitigate the spread of the communicable disease.
  17. This then begs the question, in the case of HIV, will this action help reduce the spread of the disease? Granted that this will be accompanied by medical and psychological assessment, but will limiting a person’s right to freedom, a right that is not only entrenched in the Constitution of Botswana, but also in the Universal Declaration of Human Right, truly mitigate the spread of the disease? Firstly because the checks and balances envisaged in the procedures as stated by MoH recently are not clearly outlined and may also be prone to abuse. Secondly, it may place the fight against HIV as a responsible of those who are HIV positive yet it should be a collect effort because it affects everyone.
  18. In summary; the Public Health Bill needs to be reviewed, particularly under those sections that contravene international law and indirectly seek to infringe the rights of people living with HIV/AIDS. The Bill should avoid ambiguity and ensure that under provisions were individuals are required to undergo an HIV tests broad definitions such as ”necessary” or ”required” are clearly stated so as to determine which contexts such provisions will apply.
  19. Lastly; HIV/AIDS is a multifaceted issue which is deeply entrenched in socio-economic factors that impact peoples’ lives. Hence, it is imperative for government to ensure that policies directed towards preventing and treating HIV and its related conditions are carefully considered through the collaboration of different stakeholders including those infected and affected by HIV/AIDS and the vulnerable groups in society.
  20. BONELA and her partners, therefore, concur with UNAIDS, who suggests that the provisions relating to HIV/AIDS be removed from the Public Health Bill until they are interrogated in manner that will give birth to more effective implementation geared towards respect for human rights and non-discrimination as well as participation by those mostly affected.

Signed by

Uyapo Ndadi

Executive Director       

For more information contact BONELA Awareness Raising Team on 3932516.