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Court rules against sex workers’ mandatory HIV testing

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The High Court in Blantyre has ruled against the mandatory HIV testing of 11 Mwanza commercial sex workers who were arrested during a sweeping exercise in 2009.

The sex workers were seeking a judicial review, challenging their subjection to mandatory HIV tests, the admission of the HIV test results as evidence in criminal cases against them, and the public disclosure of their HIV status in open court.

In their application, they argued that subjecting them to mandatory HIV tests was unreasonable and that the mandatory HIV tests violated their constitutional rights, including their right to privacy and liberty, non-discrimination, freedom from cruel, inhuman and degrading treatment and dignity.

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Justice Dorothy Kamanga said the police and Mwanza District Hospital were not supposed to test the sex workers for HIV without their consent, thereby infringing on their right to privacy since the results were handed over to the police.

She noted that the sex workers’ right to dignity was also infringed upon contrary to the country’s Constitution and International human and people’s rights instruments.

“The DHO [District Health Officer] and OC’s [Officer-in-Charge] conduct was unreasonable and this can’t be justified. The DHO violated patients’ rights by testing them in front of police officers and did that without following the right procedures of HIV testing such as counselling beforehand,” said Kamanga.

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The sex workers were arrested in Mwanza on two separate occasions in September and November 2009 during sweeping exercises conducted by the police.

The police arrested both men and women but when they arrived at Mwanza Police Station, all men were released.

The women were then taken to the district hospital where they were subjected to mandatory HIV testing without their informed consent. This was done in the presence of the police.

The medical officers handed the results to the police and this was used against them at the magistrate’s court where some among them were charged with spreading venereal diseases in contravention of Section 192 of the Penal Code.

The particulars of the offence were read out loud, including the fact that the women were HIV positive. Some of the women got to know about their HIV status through the test.

In conclusion, Justice Kamanga ordered that the sex workers should be compensated but they have to make a separate application on this within 14 days.

She also said the magistrate was not supposed to read out the names of the sex workers and their HIV status in court without consent but asked for the case file to be brought to the High Court to establish why the magistrate did that.

Lawyer representing the sex workers, Chrispin Sibande, said he was glad that the court condemned mandatory testing, saying this will guide Parliament as they discuss the HIV and Aids Bill.

“This is a big contribution to Malawi since there is no specific law on HIV and this will give guidance since the court has come out clearly that this is a human rights issue,” he said.

Senior State Advocate, Madalitso Kausi, who was representing the Attorney General and other government offices involved, said he could not say much on the AG’s next course of action after the ruling.

“We will make a decision after carefully reading the judgment,” he said.

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