When rights clash

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A nurse cares for patients in a ward dedicated for people infected with the coronavirus, at Forqani Hospital in Qom, 78 miles (125 kilometers) south of the capital Tehran, Iran, Wednesday, Feb. 26, 2020. Iran's president said Wednesday, that Tehran has no immediate plans to quarantine cities over the new coronavirus rapidly spreading across the country, even as the Islamic Republic suffers the highest death toll outside of China with 19 killed amid 139 cases confirmed on Wednesday. (Mohammad Mohsenzadeh/Mizan News Agency via AP )

The Covid-19 epidemic has been politically illuminating.  China seems to have slowed down the spread of the virus by using draconian measures that could never be imposed by democratic governments.

The first major surge of the epidemic beyond China’s borders was into South Korea.  It seems to have spread there in the midst of a religious group whose members congregated for funerals or worship.  Now, the Mayor of that city is suing the church’s leader for refusing to share intelligence about his church members.  This is what happens when Covid-19 meets liberal democracy, as opposed to Socialism.

In fact, both socialism and liberalism are strands of humanism.  The difference is that in socialism champions the rights of the Collective, whereas Liberalism champions the rights of the Individual.

In terms of disease control, one of the ways that public health is protected is to track down those who have come into contact with infected people.  So that they can be warned – for their own protection.  Now a high incidence of people in this church denomination had tested positive to Covid-19.  So for the common good, the city government had asked for its lists of members.  The pastor suddenly decided to become an HRD (human rights defender) and invoked their individual right to privacy.  Constitutional democracies entrench such rights among their civil liberties.  Unlike China – where government has not worried so much about individual rights, but put the common good first and foremost.

This reminded me, in retrospect, of why the HIV virus spread so fast in Africa.  Like Covid-19, you could be infected by it without knowing.  So you could also serve as a carrier – unwittingly.  But eventually, without treatment, the symptoms would manifest themselves, making you and others realize that you were infected.  Long after you could have infected others.

There are recorded cases of people intentionally using their sero-positivity to harm others.  The narrative involving Fish Mahlalela comes to mind.  That is called “harmful HIV transmission”.  There are also cases of people knowing that they were positive, and knowing how the virus is transmitted… yet they did not warn their sexual partners or take the expected precautions.  This is called “reckless HIV transmission”.  Maybe they weren’t using their infection as a weapon?  But like the Korean church leader, they were putting their individual rights ahead of the common good.  This is rabid entitlement.

When rape is committed, the perpetrator can also infect the victim with the HIV virus.  This aggravates the charge of rape and stiffens the sentencing.  Rape is a crime in itself, distinct from intentional or reckless HIV transmission.  In the law of South Africa, that is a crime too, and should be prosecuted as well.  It is called “HIV-endangerment”.

The point is that reckless transmission is a risk – even in the current Covid-19 epidemic.  Let’s face it, the Black Death was unleashed on Europe when the Mongol soldiers of Janibeg lobbed infected bodies over the walls of the port city Kaffa.  People started dying and fled on boats which sailed to ports in Europe, transporting the Bubonic Plague.  It was a WMD.  It turned out that the transmission was not directly from people-to-people like HIV or the Coronavirus. 

It involved rats that were on board the ships.  And even the rats were not to blame.  It was the fleas on the rats that infected humans – which were not their preferred “hosts”, but would do when the rats died.  It took a long time to figure all this out, which makes me wonder if we really know yet, all that we need to know about Covid-19?

In South Africa we will soon see this clash of causes – and the grand championing of individual rights in the face of socialistic efforts to contain the epidemic. In fact, we have seen it already.  Because the law of South Africa – like most countries in Africa – criminalizes “HIV endangerment”.  Not HIV-transmission, that is not a crime.  The law criminalizes those who endanger other by their silence and/or stealth.  Call it indecent exposure.

But NPA prosecutors do nothing, because of the roar that arises from the HRDs, should they try to champion the rights of victims.  For some reason, the rights of the perpetrators prevail.   Just like this church leader in Korea, refusing to divulge intelligence about his flock to the city authorities trying to contain the spread of an epidemic.

The rights of many victims have been denied.  Prosecutors cower at having to prosecute the crime of “HIV endangerment”.  Because they are champions of another cause – Justice.  They somehow forget that the Justice system also has Defense attorneys.  It is the duty of a Defense attorney to do his or her utmost to defend people even that they know are guilty.  That is, assuming that you believe in the functionality of the system.  

The emblem of Justice is a scales.  The problem in South Africa is that state prosecutors suffer from a debilitating overdose of liberal humanism.  They usurp the role of the Judges by only prosecuting one out of three cases presented by the police.  They are more concerned about their batting average than about victims’ rights.

In the light of the fact that prosecutors basically ignore the criminalization of HIV endangerment, my sense is that citizens of South Africa are sitting ducks when it comes to Covid-19.  

Criminalization of HIV endangerment was one key strategy of a bouquet of strategies recommended by the United Nations and adopted by many countries.  But we only had condoms to help us in South Africa, because the NPA prosecutors dropped the ball.  Their biases deriving from liberal humanism trumped the efforts of socialist humanism to champion the common good.

In South Korea, that defiant church leader – Lee Man-hee – is now facing a murder investigation.  The NPA should take note. Is the delay in prosecution that was expected in the wake of the Zondo Commission because the NPA is also ignoring the criminalization of State Capture?


Chuck Stephens work for the UNEMBEZA Desk at the Desmond Tutu Centre for Leadership. He writes in his personal capacity.