South Africa has great HIV laws, but they’re not being fully enforced

Policy is central to the global efforts to end AIDS. Progressive policies that enshrine civil liberties can help people take steps to protect themselves from acquiring HIV, and prevent its onward transmission. In the same breath, policies that criminalise people of specific communities push vulnerable people into precarious situations that increase their risk of HIV. 

A recent report by the HIV Policy Lab unpacked some of the progress being made in the adoption of some policies aimed at stemming the tide of HIV. But the report sounds alarm bells over countries’ failure to implement some key policies such as harm reduction. A major cause for concern is that “some countries are imposing harsher penalties on same-sex sexuality and deepening criminalisation measures”. 

“The public health evidence for removing the criminalisation of consensual same-sex has grown and become clear. Around the world, gay men and other men who have sex with men, as well as transgender women, have higher rates of HIV than the general populations,” reads the HIV Policy Lab report.

South Africa, which has among the highest number of people living with HIV in the world, has done fairly well in adopting and implementing most of the set policies. For example, South Africa is one of 129 countries that does not criminalise same-sex sexual activities. This is illegal in nearly half of African countries. 

There are, however, glaring gaps in the implementation of some of the policies adopted in South Africa. 

“For example, South Africa has a comprehensive sexuality education policy. But implementation is extremely poor in schools due to resistance from school governing bodies, sometimes teachers as well as religious leaders,” says Dr Jacobus Louw, the Eastern Cape provincial medical manager for the advocacy organisation AIDS Healthcare Foundation

“And the national strategic plan on gender based violence and femicide will never be fully implemented untill sex work is fully decriminalised by adoption of the long-overdue Criminal Law Amendment Bill of 2022,” says Louw.

Policy gaps 

“HIV is still a public health crisis in South Africa, as the country has one of the highest numbers of people on HIV treatment and millions who are still not receiving any treatment,” says Nelson Dlamini, the spokesperson for South African National AIDS Council (SANAC).  

The epidemic is driven by new infections through heterosexual transmission; commercial sex; and transmission among men who have sex with other men. Other drivers include having multiple sexual partners; and condomless sex or inconsistent condom use. Social behaviors such as sexual violence and alcohol and substance abuse have also been cited as some of the driving factors behind transmission.

Louw says that progressive HIV policies are important to protect the most vulnerable and at risk populations to HIV transmission. 

In addition to the lack of implementation, there are key three policy measures South Africa must still adopt. These include distribution of clean syringes and condoms to prisoners, and decriminalising drug use and possession. 

South Africa is yet to decriminalise sex-work. This is despite research showing that female sex workers are at more risk of HIV infection due to factors such as being sexually assaulted while on duty.

But Dlamini says it’s encouraging that despite being criminalised by the state, there are health programmes and policies designed to meet the unique needs of sex workers.

“Other groups that require protection from abuse and exploitation include migrants, refugees and asylum seekers. Having proper policies in place can ensure that they have access to necessary prevention, treatment and care. It can also reduce stigma and discrimination – a major factor affecting the health seeking behaviour of key population groups,” says Louw.

Needs political will

Louw says that untill South Africa gets leaders with the political will to implement HIV-related policies fully and to enforce them, vulnerable people will always face with the risk of sexual violence and HIV.

He says a lack of policies and laws leads to a generally poorer HIV response, as countries which fail to develop or implement such policies are seeing an expansion of their epidemics.

“We are not home free in South Africa, though. For example, South Africa only partially adopted a harm reduction policy which leaves people who use or inject  drugs behind in the HIV response. And we have no prevention policy for prisoners in place, leaving the prisoner population open to abuse which results in high HIV rates among incarcerated prison populations,” says Louw.

A 2020 study in five South African jails estimates that 17.7% of the inmate population had HIV. –Health-e News.


  • Ndivhuwo Mukwevho

    Ndivhuwo Mukwevho is citizen journalist who is based in the Vhembe District of Limpopo province. He joined OurHealth in 2015 and his interests lie in investigative journalism and reporting the untold stories of disadvantaged rural communities. Ndivhuwo holds a Bachelor of Arts degree in Media Studies from the University of Venda and he is currently a registered student with UNISA.

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