While it has caused a great deal of anxiety among some, the controversial Public Health Bill is, ironically, nothing compared to what members of the public proposed during HIV/AIDS hearings conducted by MPs in 2007. One of the objectives of this exercise was “to contribute to sections that could be added to the Public Health Act relating to HIV/AIDS” and so in 2007, the National Assembly despatched two six-member teams of MPs to sample public opinion. One team, led by Botswana National Front president and Leader of the Opposition, Otsweletse Moupo, criss-crossed the western part of the country while another led by Shoshong MP and current Botswana envoy in Namibia, Duke Lefhoko, toured the eastern part.
This exercise followed a resolution by the plenary assembly of the Southern African Development Community Parliamentary Forum in Krugersdorp, South Africa to support the Botswana parliament in amending the Public Health Act. Some 11 sites were selected and those who participated in the public hearings represented the civil society, faith- and community-based organisations, government as well as the private sector.
“In Maun, Ghanzi, Kasane, Francistown, Selibe-Phikwe, Palapye and Hukuntsi, most people who spoke were of the opinion that compulsory testing was necessary, while in Jwaneng, Lobatse and Gaborone, the people reiterated the need for education information and communication arguing that compulsory testing impinged on the human rights of individuals and will not promote voluntary HIV and AIDS testing,” says an interim report from this exercise.
A majority felt that there was need to legislate on age of consent for HIV testing in order to allow children to go for testing without parental consent. Some suggested that the age of consent should be as low as 10 years while others suggested 18 years. There were also those who suggested that testing should be mandatory for all children under 16 years, that children should be tested at birth, and that the test be incorporated into the ante-natal programme.
In Francistown and Palapye, there was a suggestion that HIV counsellors should be older than their clients and that only people living with HIV/AIDS should provide the counselling as they would be able to draw on their personal experiences.
As regards pre-marital testing, one side advocated for compulsory testing “as a symbol of starting on a “clean slate”, a new beginning and readiness to start a family, while the other side argued that the prevalent practice of pre-marital sex and the resultant children born out of wedlock, could present challenges and reverse the progress made in encouraging people to test.”
The report describes as “prevalent” a view that foreigners, “especially those who seek employment within Botswana, should undergo compulsory testing.” As prevalent was the view that it should be compulsory for people to disclose their HIV/AIDS status to their partners. The counterargument was that relationships in Botswana do not always result in marriage, and that as a result, some would be compelled to disclose their status to a succession of lovers. According to the report, numerous participants said that failing to disclose one status to a partner and subsequently infecting them should be treated as a criminal offence.
On the whole, the respondents wanted HIV/AIDS law to have tougher criminal sanctions than the Public Health Bill does. A “significant” number of submissions indicated that wilful transmission of HIV/AIDS should be treated as a criminal offence and that ignorance of one’s status should not be used as an excuse.
“There was a strong suggestion that a partner of an expectant woman should be tested, and refusal to do so should be a criminal offence. An emerging view was that before a woman enrols in ante-natal care, she and her partner should be tested together. Refusal to undergo testing would then be treated as an offence as it endangers the unborn child and exposes them to re-infection.
Selibe-Phikwe went further to indicate that if a married man impregnates an unmarried woman, he should be forced to test with the lady,” the report says.
The Guiding Questionnaire called for the MPs to ask respondents whether the status quo of ARV centres being physically separate from main dispensaries should be maintained. The majority expressed misgivings about the separation, saying this discrimination only served to further stigmatise the HIV positive while others argued that the separation was necessary to expedite the dispensing of ARVs.
The issue of distributing condoms in prisons also came up and then as now there was no consensus.
One group said that prisoners coming back into the community contributed to the spread of HIV/AIDS after having unprotected sex in prison while another said that same sex relationships were immoral and should not be encouraged.
“The latter also felt that there was no reason to “reward” prisoners as they went to prison for breaking the law, not to have sex,” the report says.
Important though it is to the policy and law-making, public opinion cannot be adopted wholesale in its raw form, especially where there may be a substantial gap in the public’s understanding of highly complex issues. The views undergo a comprehensive refinement process that pays particular attention to tradeoffs among values, consideration of second-best possibilities and unexpected risks in order to get the right policy answers. From this process – or an approximation of it, came out the Public Health Bill that is now being debated in parliament. However, some organisations like the Botswana Network of Law and HIV/AIDS and UNAIDS insist that the process yielded the wrong answers. It also turns out that the bill contradicts a model law that was developed by the Southern African Development Community (SADC) in 2008 for its member states.
While the bill mentions only “confidential HIV testing”, the SADC Parliamentary Forum Model Law on HIV says that “HIV testing shall be voluntary, anonymous and confidential.”The latter states that people should have the right to decline the test and that doing so “will not affect the patient’s access to services.” On the other hand, the bill is not as lenient. It states that the Director of Health Services may, “where necessary and reasonable”, require a person or a category of persons to undergo an HIV test and that where such people refuse, the Director may apply in writing to a magistrate to facilitate such testing. It also says that where a person refuses to undergo an HIV test after being so required by a medical practitioner or nurse, the latter can seek advice from the Director in relation to appropriate action. A medical practitioner responsible for the treatment of a person may conduct an HIV test without the consent of that person and not be liable to civil or criminal liability.
The SADC-PF model law says that a person providing treatment, care or counselling services to a person living with HIV may encourage the latter to inform his or her sexual partner(s) of his or her HIV status. Conversely, the bill obliges a person who is aware of being infected with HIV to “inform in advance, any sexual contact or caregiver or person with whom sharp instruments are shared, of that fact.” Likewise, the two models take diametrically opposed on the issue of isolating HIV positive persons. The SADC model prohibits “any isolation, exclusion or suspension of a child, learner or student from an educational institution on the sole account of his or her actual or perceived HIV status or the actual or perceived HIV status of his or her partners and close relatives.” The bill says that a magistrate may make an order imposing restrictions on the behaviour or movements of an HIV positive person for a period not exceeding 28 days or an order requiring that the person be isolated and detained. The proposal of how that should happen is in the following way: the Director applies in writing to the magistrate for a warrant authorising a police officer to carry out an isolation order.
“It is the duty of any responsible government, especially one that spends as much resources on the treatment of a preventable disease such as HIV/AIDS, to ensure that where there is irresponsible behaviour at the public expense such irresponsible behaviour is attended to and if need be by way of imposing a legal obligation not to knowingly infect other members of the public,” the health minister, Reverend Dr. John Seakgosing said in parliament last month.
On non-controversial issues, however, there are similarities between the two models. Both agree that only registered health institutions and NGOs may carry out HIV testing, that legal proceedings relating to HIV should be held in camera and that children under the age of 16 years should be tested for HIV with the consent of their parents.
