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January 23, 2019

Revealing someone's HIV-Aids status is illegal

Article 31 (c) of the constitution stipulates that every person has the right to privacy, which includes the right not to have information relating to their family or private affairs unnecessarily required or revealed amongst others.

Article 27 provides that no one should discriminate against another directly or indirectly on the ground of status amongst other grounds. This of course includes the HIV/Aids status of another.

Section 22 of the HIV/Aids Prevention and Protection Act provides that no person shall disclose any information concerning the result of an HIV test or any related assessments to any other person except with the written consent of that person or if that person has died, with the written consent of that person’s partner, personal representative, administrator or executor.

If that person is a child, with the written consent of a parent or legal guardian.

Any child who is pregnant, married, a parent or is engaged in behaviour which puts other persons at risk of contracting HIV may, in writing, also directly consent to such disclosure.

If that person is unable to give written consent, with the oral consent of that person or with the written consent of the person with power of attorney for that person;

If, in the opinion of the medical practitioner who undertook the HIV test, that person has a disability by reason of which the person appears incapable of giving consent, with the written consent, in order, of:

(i) a guardian of that person;

(ii) a partner of that person;

(iii) a parent of that person; or

(iv) an adult offspring of that person;

to a person, being a person approved by the Minister under section 16, who is directly involved in the treatment or counseling of that person.

One's status can also be revealed for the purpose of an epidemiological study or research authorised by the minister.

It can be revealed to a court where the information contained in medical records is directly relevant to the proceedings before the court or tribunal.

Section 23 provides that a person who contravenes any of the provisions of this part or of any guidelines prescribed hereunder commits an offence.

Being a right guaranteed under Article 31 of the constitution, it goes without saying that a person whose right to privacy has been threatened, violated and or taken away can seek remedies under the constitution.

Article 23 stipulates that a person can seek any of the reliefs as set out therein. This includes an injunction and compensation. The person whose privacy is being infringed can move to the constitutional court for an order to restrain the violator from continuing to infringe into their privacy.

This is not enough. A victim can also seek compensation against the violator.

However, the above statute sets out situations when one's right to privacy can be taken away. In my humble opinion, this section needs to be taken through the tight tests of Article 24 of the constitution. Does the act meet the constitutional threshold where one would argue that the exposure, for example, of another person’s HIV/Aids status is permissible?

I invite your sentiments around this question and invite you not to overlook the right to protection and equality before the law as set out under Article 27 of the constitution. How much of the right to dignity as guaranteed under Article 28 is left of the victim whose status is exposed? How do they redeem this dignity?

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