Malawi's High Court takes human rights approach to HIV transmission cases

E.L (Female) v The Republic (Criminal Case No. 36 of 2016) [2016] MWHC 656 (19 January 2016)


This decision of the High Court of Malawi considered whether E.L, a woman with HIV/AIDS who was taking a Anti Retro Viral (ART) medication, was guilty of an offence for breastfeeding another woman's baby. The High Court adopted a 'human rights' approach to the application of criminal law to cases involving HIV transmission and found that courts needed to consider the accused person's circumstances, including their level of knowledge and understanding of HIV transmission. In relation to sentencing, the Court held that the trial court should have considered the best interests of E.L's infant child. Ultimately, the High Court held that the charge laid against E.L was invalid for ambiguity and that she had not received a fair trial. 


E.L (Female) (E.L), a mother of four children, had been breastfeeding her 11-month-old baby at a community event, before giving the child to her grandmother. Mrs M.P, the Complainant, then asked E.L to hold her five-month-old child. E.L noticed that Mrs M.P's child was breastfeeding on her and tried to stop the child from doing so. Mrs M.P reported the matter to the police.

E.L was arrested and charged with unlawfully, negligently and knowingly doing an act likely to spread the infection of the disease HIV by breastfeeding the 5-month-old baby of Mrs M.P. E.L pled guilty and was convicted for the offence of unlawfully (negligently) doing an act likely to spread a dangerous disease under s 192 of the Penal Code of Malawi. E.L was sentenced to nine months’ imprisonment with hard labour.

E.L appealed the conviction to the High Court on the following grounds: 1) the conviction and sentence were unsafe and should be quashed; and 2) s 192 of the Penal Code was unconstitutional.


The High Court held that the relevant standard was that the act must have been likely to spread a disease, which should be interpreted in a manner that does not render the crime overly broad. The Court rejected the meaning attached to "likely" in other HIV exposure cases, whereby "likely" had been interpreted as 'no more than merely a fanciful, speculative, or remote possibility' (i.e. in S v Gutierrez, United States Court of Appeals for the Armed Forces 23 February 2015, No 13-0522, Crim. App No 37913). The Court affirmed that, in determining the meaning of "likely", the law should adopt a sui generis standard in cases involving HIV exposure. Furthermore, expert evidence on the likelihood of HIV transmission in the particular circumstances of each case should always be considered by the court.

The High Court found that it was a vital component of the offence that E.L had knowledge of the likelihood that her conduct would spread a disease dangerous to life. In the present case, the Court found that E.L's knowledge was likely that breastfeeding was safe and unlikely to transmit HIV while she was on ART medication.

E.L adduced evidence that the 2016 World Health Organisation Guidelines, and Malawi's Guidelines issues by the Ministry of Health, both affirmed the safety and advisability of breastfeeding by women living with HIV. The High Court noted that the expert evidence before it indicated that infants who received breast milk from a mother on ART medication had an extremely low transmission rate of 0.3%. This was for infants exposed repeatedly over several months. As such, the risk of transmission for one exposure was considered to be "infinitesimally small". Moreover, E.L breastfed her own child and clearly had no wish to cause her child harm. As such, it was the Court's view that E.L did not have the requisite knowledge or belief that breastfeeding the complainant's child would likely spread the infection to the Complainant's child.

The High Court also found that the incarceration of E.L with her 14-month-old child, who was also HIV positive, was not the best option available to the lower court, and held that, in all cases where the rights of a child are affected, the courts ought to weigh in the best interest of the child. The High Court held that incarcerating a woman with her child should always be the last resort, especially where the offence is a misdemeanour. Courts should take into account the guidelines set by the United Nations Rules for the Treatment of Women Prisoners and Non-Custodial Measures for Women Offenders. The High Court found that the circumstances of this case demanded leniency, especially as Mrs M.P's child received post-exposure prophylaxis (PEP) and tested HIV negative. The High Court held that the facts 'barely showed any wrongdoing' and, considering E.L had her own breastfeeding child, the sentence was grossly excessive. The Court also noted that the sentence raised concerns about the magistrate's bias.

The High Court held that the proceedings in the lower court had procedural irregularities, including blatant bias, especially when examining how the sentence was passed and its extremity in E.L's circumstances. The High Court held that E.L's right to a fair trial was compromised and her conviction was therefore wrong in law, and thus a nullity. E.L's conviction was set aside and she was released immediately.

In obiter, the Court considered that E.L's rights to privacy and dignity, as guaranteed by ss 19 and 21 of the Constitution of the Republic of Malawi, were violated in the lower court because E.L's HIV positive status and treatment were introduced into evidence. The High Court questioned how the police had obtained the information and how the trial court could have admitted it into evidence. The Court cautioned that, in such matters, courts need to be specially concerned and careful, and police need to ensure that they do not, in the pursuit of servicing and protecting, break the law and violate people's rights. The High Court went on to highlight that courts need to be vigilant in terms of the admission of such information into evidence where there is a shaky basis for compliance with the Criminal Procedure and Evidence Code.

The High Court was of the view that criminal law should not be applied to cases where there is no significant risk of transmission, where the person did not know that he/she was HIV positive, did not understand how HIV is transmitted, or did not disclose his or her HIV positive status because of fear of violence or other serious negative consequences. The Court went on to state that legal systems should ensure their application of general criminal laws to cases involving HIV transmission is consistent with their international human rights obligations.

The High Court also reflected on possible changes to the law surrounding HIV transmission, stating that the law should ensure that elements such as foreseeability, intent, causality and consent are clearly and legally established to support a guilty verdict and/or harsher penalties. Further, the High Court was of the opinion that negligent infection of a deadly disease through breast-feeding should not be put in the same category as intentional infections, noting that the law must be sensitive to various issues, including the lack of knowledge on how HIV is transmitted and the accused's personal circumstances.

Finally, the High Court held that '[f]undamentally, in this human rights era, the law should remember to uphold the accused person's rights to privacy, dignity and due process'.


This case is significant as it deals with critical human rights issues concerning due process, privacy, dignity, the best interests of children, and the interaction of people living with HIV and the criminal law. Significantly, the High Court considered the impact of stigmatisation and judicial bias in the adjudication of HIV transmission cases and excessive sentencing. The decision highlights the importance of ensuring that people living with HIV are afforded a fair trial, and that their rights to privacy and dignity are protected, particularly when noting that discrimination severely undermines the right to health, and accessibility to health care. The High Court's decision provides guidance on the application of criminal law to HIV transmission cases, rejecting an overly broad approach, and confirming that courts should turn their minds to the circumstances of the accused, scientific evidence, and their obligation to ensure conformity with the human rights framework.

In a recent HIV transmission case last year, the High Court of Australia in Aubrey v The Queen [2017] HCA 18 held that infecting another person with HIV was included within the definition of 'maliciously inflicting grievous bodily harm' under s35(1)(b) of the Crimes Act 1900 (NSW). Relevantly, the High Court found that the accused merely had to foresee the possibility (not the probability) that engaging in sexual intercourse could result in the complainant contracting HIV. The Australian High Court's decision is in stark contrast to that of the High Court of Malawi in E.L, which criticised this overly broad approach (rejecting the "possibility" test), and held that that the relevant test is whether the accused foresaw the likelihood that the complainant would contract the disease. The decision of E.L is much more consistent with the UN AIDS policy guidance than the Australian decision in Aubrey.

The full decision is available here.

Alexandra de Zwart is a Graduate at DLA Piper