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Q&A – 17 April 2017

Compulsory HIV testing

I am an engineer intending to work for a company in Dar. The company insists that it is their policy that I get a HIV/AIDS test done. Can I be forced to do so? How secretive are the results?
PP, Dar

The HIV and AIDS (Prevention and Control) Act 2008 answers all your questions in section 15 and 16 and states that 15(1) Every person residing in Tanzania may on his own motion volunteer to undergo HIV testing. (2) A child or a person with inability to comprehend the result may undergo HIV testing after a written consent of a parent or recognized guardian. (3) A person shall not be compelled to undergo HIV testing. (4) Without prejudice to the generality of subsection (3), no consent shall be required on HIV testing- (a) under an order of the Court; (b) on the donor of human organs and tissues; and (c) to sexual offenders. (5) Every pregnant woman and the man responsible for the pregnancy or spouse and every person attending a health care facility shall be counselled and offered voluntary HIV testing. (6) All health practitioners, traditional and alternative health practitioners, traditional birth attendants and any other person attending patients shall be encouraged to undergo HIV testing. (7 ) Any health practitioner who compels any person to undergo HIV testing or procures HIV testing to another person without the knowledge of that other person commits an offence. (8) Without prejudice to the preceding subsections, a medical practitioner responsible for the treatment of a person may undertake HIV test in respect of that person without the consent of the person if- (a) the person is unconscious and unable to give consent; and (b) the medical practitioner reasonably believes that such a test is clinically necessary or desirable in the interest of that person.

Section 16 further states that (1) The results of an HIV test shall be confidential and shall be released only to the person tested. (2) Notwithstanding subsection (1), the results of an HIV test may be released to- (a) in case of a child, his parent or recognized guardian; (b) in case of person with inability to comprehend the results, his spouse or his recognized guardian; (c) a spouse or a sexual partner of an HIV tested person; or (d) the court, if applicable.

Wife refuses to breastfeed

My wife is flatly refusing to breastfeed my child on grounds that her breasts will lose their firmness. Is that true? I am very upset about this and want to compel her by way of a Court order to feed my child as the child will starve. Can I get such an order? Is it a ground for divorce?
YU, Lindi

As lawyers we are not qualified to respond to what the causes are for “firmness” loss. We know that ultimately the forces of gravity do take over, be it on women or men.

From the facts, we must state that there are many women who do not breastfeed as there are other formulae that are good substitutes to breastmilk. Hence we do not believe that a Court would grant such an order but your lawyer can look at all the facts and decide.

As for divorce grounds, the Law of Marriage Act states that a court may accept any one or more of the following matters as evidence that a marriage has broken down but proof of any such matter shall not entitle a party as of right to a decree– (a) adultery committed by the respondent, particularly when more than one act of adultery has been committed or when adulterous association is continued despite protest; (b) sexual perversion on the part of the respondent; (c) cruelty, whether mental or physical, inflicted by the respondent on the petitioner or on the children, if any, of the marriage; (d) wilful neglect on the part of the respondent; (e) desertion of the petitioner by the respondent for at least three years, where the court is satisfied that it is wilful; (f) voluntary separation or separation by decree of the court, where it has continued for at least three years; (g) imprisonment of the respondent for life or for a term of not less than five years, regard being had both to the length of the sentence and to the nature of the offence for which it was imposed; (h) mental illness of the respondent, where at least two doctors, one of whom is qualified or experienced in psychiatry, have certified that they entertain no hope of cure or recovery; (i) change of religion by the respondent, where both parties followed the same faith at the time of the marriage and where according to the laws of that faith a change of religion dissolves or is a ground for the dissolution of marriage.

If not feeding your child can be considered as cruelty on the child, it would be a ground for divorce. We however do not see it as cruelty but your lawyer can look at all the facts and decide accordingly.

Privacy of matrimonial life

Where do I turn to learn more about preservation of privacy? What law protects me?
IO, Dar

Apart from other laws, the Constitution of Tanzania gives you general protection in Article 16 and states that (1) Every person is entitled to respect and protection of his person, the privacy of his own person, his family and of his matrimonial life, and respect and protection of his residence and private communications. (2) For the purpose of preserving the person’s right in accordance with this Article, the state authority shall lay down legal procedures regarding the circumstances, manner and extent to which the right to privacy, security of his person, his property and residence may be encroached upon without prejudice to the provisions of this Article.

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