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5 J. Pol. & L. 189 (2012)
Challenges of HIV/AIDS Criminal Legislation in Botswana

handle is hein.journals/jpola5 and id is 191 raw text is: The Challenges of HIV/AIDS Criminal Legislation in Botswana
Zein Kebonang
Operations Director, Botswana-UPenn Partnership, University of Pennsylvania
P.O. Box AC 157 ACH, Gaborone, Botswana
Tel: 267-7233-7971/7132-7941   E-mail: zkebonang athotmail.com
Received: December16, 2011     Accepted: January5, 2012    Published: March 1, 2012
doi:10.5539/jpl.v5n1pl89          URL: http://dx.doi.org/10.5539/jpl.v5n1pl89
In an attempt to halt the spread of the HIV epidemic, the Government of Botswana amended in 1998the country's
criminal code to provide for stiffer penalties for those charged and convicted of the offence of rape. In particular,
there was to be compulsory HIV testing of perpetrators and much stiffer sentences for those who tested positive to
the HIV virus. In this paper, I argue that the amendment not only vitiates the right to voluntarily submit to an HIV
test, it invades the right to privacy and leads to unwarranted disclosure of confidential information. In addition, I
contend that the punitive criminal sentences that follow a positive HIV test are not an appropriate way of preventing
transmission as these are not likely to encourage people to voluntarily test for HIV Punitive sanctions are only
justified where it can be shown that a person acted intentionally to transmit the disease.
Keywords: Botswana, HIV/AIDS criminalization, Rape, Privacy, Confidentiality, Consent
1. Introduction
Apart from its renowned mineral worth, particularly diamonds, Botswanaalso has one of the highest HIV prevalence
rate in the world. With a population of 2 million, it is estimated that 350,000 citizens are infected with HIV and/or
living with HIV/AIDS, representing about 17 percent of the general population. A number of programs such as the
national antiretroviral treatment program which involve making available free antiretroviral therapy (ART) to all
eligible citizens have been initiated by government. These efforts have been complimented by assistance from the
African Comprehensive HIV and AIDS Partnerships (ACHAP) and the U.S President's Emergency Plan for Aids
Relief (PEPFAR). Despite these efforts, HIV continues to be a threat and prevention remains a priority. With the
HIV prevalence rate continuing to rise, calls are and have been made to introduce legislation that would mandate
partners to reveal their HIV status and to criminalize HIV/AIDS transmission. In considering the merits or otherwise
of these calls, this paper starts by reviewing the state of HIV/AIDS in Botswana; it then considers the case for
criminalization of HIV/AIDS transmission. This is followed bya brief overview of the HIV criminal legislation in
Botswana; the right to privacy and confidentiality before drawing a conclusion.
2. HIV/AIDS Prevalence in Botswana
Botswana has and continues to experience one of the most severe HIV/AIDS epidemics in the world (UNAIDS
2002). The national HIV prevalence rate among adults aged between 15 to 49 years is 24.1 percent, which is among
the highest in sub-Saharan Africa. Out of a population of 2 million, a third of the adult population is HIV positive
(UNAIDS 2002; Negin 2005). The results of the 2008 HIV/AIDS Impact Survey as shown in Table 1 below indicate
that the national prevalence rate increased by 0.5 per cent from 17.1 percent in 2004 to 17.6 percent in 2008(Note 1).
Although a modest increase, the burden of HIV in Botswana continues to increase as a result of new infections and
people on antiretroviral treatment therapy (ART) living longer. As Table 1 demonstrates, although the 2008
prevalence rates for ages 10-34 had declined, the same could not be said for the prevalence in the 35-65 age
[Table 1 about here]
Despite the overall increase in the prevalence rate, Botswana's institutional response to HIV/AIDS has been a strong
one. In 1999 the country established the prevention of mother to child transmission program(Note 2)(PMTCT). This
program was followed in 2002 by the establishment of the National AIDS Council (NAC). Headed by Ian Khama,
the President of the Republic of Botswana, the council is made up of representatives from across government, civil
society organizations and the private sector(Note 3). A six year National Strategic Framework (NSF) for HIV/AIDS
was formulated in 2003 to define goals; provide guidelines and to spell out what the national response to the

Published by Canadian Center of Science and Education


Joumnal of Politics and Law

Vol. 5, No. 1; March 2012


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