Aids Commission as a statutory body that facilitates management of HIV/AIDS response
in the country.
156
The courts in Malawi have also risen to ensure that the privacy of persons living with
HIV is not violated even in criminal trials. In a 2015 High Court appeal case eleven
commercial sex workers were charged with spreading venereal diseases, contrary to
section 192 of the Penal Code. The Court ruled that subjecting commercial sex workers
to forced HIV testing was unreasonable and a violation of their rights to privacy, equality,
dignity and freedom from cruel, inhuman and degrading treatment. The Court noted that
the authorities took advantage of the commercial sex workers being in police custody to
force them to undergo the tests. In the case of E.L (Female) v Republic,1 the court
expressed concern over the violation of the appellant’s right to dignity and privacy as
guaranteed by section 19 and 21 of the Constitution. In the trial transcript, the appellant’s
HIV status as well as treatment was introduced into evidence in court. The court
wondered how the police obtained the information and how the lower court admitted
such information into evidence. It was cautioned that such matters need courts to be
specially concerned and careful with. In the pursuit of serving and protecting citizens, the
police need to ensure that they do not, that by breaking the law and violating people’s
rights.
157
Regarding measures taken to address health care provisions in prisons, including
prisoners with HIV/AIDS or tuberculosis; the Malawi Prison Service has health
personnel, headed by a general practitioner at every prison who gives immediate health
assistance to prisoners. Three (3) prison officers were also specifically trained in mental
health. If the sickness cannot be dealt with by the medical personnel at the prison, the
patient prisoner is transferred to a main hospital in the district or city the prison is
located. In addition, the Malawi Prison Service also makes provision for doctors to visit
prisons where there are patient prisoners who due to the state of illnesses cannot be
transferred to main hospitals immediately. With regard to prisoners with HIV/AIDS, they
are provided with the appropriate medication and are put on a special diet. Prisoners
suffering from tuberculosis are also provided with the appropriate medication, special
1
Criminal Case No. 36 of 2016 (Being Criminal Case No. 95 of 2016) (In the Second Grade Magistrate Court Sitting
at Machinga)
55