Malawi Act or statute

Malawi legislation

HIV and AIDS (Prevention and Management) Act, 2017, 2018

HIV and AIDSHIV and AIDS informationHIV disclosureHIV risk minimizationHIV testingHIV-related discriminationHIV/AIDSHIV/AIDS definitionsHIV/AIDS discriminationaccess to informationaccounts and auditagreementsallowancesapplication procedureappointmentsasset salesasset transferblood testingboard governancecommission governancecommittee governancecommittee procedurecompensationcompliancecompliance screeningconfidentialityconflict of interestconsentcontent approvalCompany lawcounselingdata handlingdonationdonationseducationeducation and training institutionseducation complianceemployee accommodationemployee compensationemployee healthemployee transferEmployment lawemployment termsexecutive recruitmentexecutive removalfinancial reportinggovernancegovernment appropriationshealthhealth compliancehealth facility compliancehealth informationhealth lawhealth policyhealth serviceshealth testinghealthcare accesshealthcare compliancemedical information handlingmedical waste disposalmeeting conductmeeting proceduremeetingsministerial approvalministerial powersminutesnoticeoffencesorganizational governancepatient accesspatient consentpatient privacypenaltiespending proceedingspermitsData protectionprohibited practicesproperty transferpublic administrationpublic body staffingpublic fundingpublic healthpublic health informationpublic policypublic statementsquorumrecruitmentregulatory complianceregulatory powersreportingrights of persons affected with HIVscholarshipsservice pricingstaffingstudent admissionstermination of employmentterms of officetestingtesting restrictionstitle registrationtraining and educationtraining complianceworkplace complianceworkplace discriminationworkplace injuryworkplace policyworkplace safetyworkplace screening

Jurisdiction: Malawi
Structure: 63 provisions
Citation: Act 9 of 2018
Official identity: Year 2018
Dates: Enacted 2018 · Source version 9 Feb 2018

More statute details

Official identity: Year 2018
Dates: Enacted 2018 · Source version 9 Feb 2018

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Purpose and legislative effect

“This section gives the Act’s short title and says it starts on a date appointed by the Minister in a Gazette notice.”

This section gives the Act’s short title and says it starts on a date appointed by the Minister in a Gazette notice. This section defines key terms used in the Act, including HIV, AIDS, child, discrimination, testing types, counseling types, tissue, and related health-service-provider terms. The Minister is responsible for HIV and AIDS policy, coordination, research, monitoring, sectoral supervision, oversight of the Commission, mainstreaming, and proper administration of the Act. Harmful practices listed in the First Schedule are prohibited, and anyone who practices one commits an offence. Any person who subjects, permits, or encourages another person to engage in a harmful practice commits an offence and may be fined K5,000,000 and imprisoned for five years if convicted.

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Short title

This section gives the Act’s short title and says it starts on a date appointed by the Minister in a Gazette notice.

Section 1

Section 17

Consent to HIV testing is treated as given in certain donation or treatment situations.

Section 17

Workplace policy

Employers must adopt and implement an HIV and AIDS workplace policy, and the policy’s design and content must follow ministerial guidelines.

Section 32

Meeting of the Commission

The Commission must meet at least once every three months, the chairperson must give notice and convene meetings, and meetings must have a quorum and minutes.

Section 48

Transfer of employees

Staff appointed before commencement are treated as appointed under the Act, and employees in post just before commencement are treated as transferred to the Commission on their existing terms.

Section 63

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Source record from malawilii.org · Enacted 2018 · Source version 9 Feb 2018

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Showing 63 of 63 provisions

Provision 40Offence 16Commencement 4Short title

Part I

Preliminary

§ 1Short titleShort title

This section gives the Act’s short title and says it starts on a date appointed by the Minister in a Gazette notice.

1. Short title (1) This Act may be cited as the HIV and AIDS (Prevention and Management) Act, 2017 (2) This Act shall come into force on a date the Minister may appoint by notice published in the Gazette.

Section 1Verify source

§ 2InterpretationInterpretation

This section defines key terms used in the Act, including HIV, AIDS, child, discrimination, testing types, counseling types, tissue, and related health-service-provider terms.

2. Interpretation In this Act, unless the context otherwise requires— " AIDS " means Acquired Immuno Deficiency Syndrome; " chairperson " means the chairperson of the Commission and includes any person acting in that capacity; " Chief Executive Officer " means the Chief Executive Officer of the National AIDS Commission appointed pursuant to section 52 ; " child " means any person below the age of eighteen years; " Commission " means the National AIDS Commission established under section 40 of this Act; " compulsory HIV testing " means HIV testing imposed upon a person characterized by the lack of informaed and voluntary consent; " diagnostic testing " means HIV testing done on an individual who shows signs and symptoms that are consistent with HIV infection to aid clinical diagnosis and management; " discrimination " includes any distinction, exclusion or restriction made on the basis of the actual or perceived HIV status of a person which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by that person or another individual associated with that person on a basis of equality with the other members-of the community, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field; " harmful practice " means any social, religious or cultural practice that— (a) puts a person at risk of HIV infection or re-infection; or (b) may catalyze progression of HIV infection to AIDS ; " health service provider " means— (c) a medical practitioner, dentist paramedical and allied health professional registered under the Medical Practitioners and Dentists Act; [Cap. 36;01] (d) a nurse or midwife registered in any category of nurses and midwives registered under the Nurses and Midwives Act; [Cap 36:02] (e) a pharmacist, pharmacy technologist or pharmacy assistant registered under the Pharmacy, Medicines and Poisons Act; or [Cap. 35 01] (f) where applicable, health service providers not registered under the Acts cited in this definition; " HIV " means Human Immunodeficiency Virus, which causes AIDS ; " living with HIV " refers to the presence of HIV in a human body as documented by the presence of HIV or HIV antibodies in the human sample being tested; " HIV testing " refers to any validated, medically recognized and viral sensitive test for determining the presence or absence of HIV in a person or blood, tissue or other bodily products of a person; " immediate family member " includes a spouse, parent, grandparent, sibling, child , grandchild, aunt, uncle, niece and nephew of a person; " post-test counseling " refers to the process of providing risk reduction information and psycho-social support to a person who submits to HIV testing at the time or after the result of the testing is released; " pre-test counseling " means the process of providing an individual information on the biomedical aspects of HIV and AIDS and psycho-social support to the implications of undergoing HIV testing and the test result before he is subjected to a test; " routine testing " means HIV testing offered in the course of providing other health services to a person; " tissue " includes an organ or part of a human body, semen, breast milk and any other substance or secretion, other than blood, extracted from the human body or from a part of the human body; " VCT " means voluntary counselling and testing for HIV infection.

Section 2Verify source

Part II

Responsibility for prevention and management of HIV and AIDS

§ 3Section 3Provision

The Minister is responsible for HIV and AIDS policy, coordination, research, monitoring, sectoral supervision, oversight of the Commission, mainstreaming, and proper administration of the Act.

3. Responsibilities of Minister On matters of HIV and AIDS , the Minister shall be responsible for— (a) formulation and review of national policies; (b) leading the national response; (c) commissioning research and innovation; (d) monitoring and evaluating the national response; (e) supervising sectoral policies relating to HIV and AIDS ; (f) overseeing the activities and finances of the Commission ; (g) facilitating mainstreaming of HIV and AIDS in all sectors of society; and (g) the proper administration of this Act. [ Please note: numbering as in original.]

Section 3Verify source

Part III

Harmful practices

§ 4Prohibition of harmful practices First ScheduleOffence

Harmful practices listed in the First Schedule are prohibited, and anyone who practices one commits an offence.

4. Prohibition of harmful practices First Schedule (1) A harmful practice listed in the First Schedule is hereby prohibited. (2) Any person who practices a harmful practice commits an offence and shall be liable, upon conviction to a fine of K5,000,000 and imprisonment for five years.

Section 4Verify source

§ 5Subjecting another to a harmful practiceOffence

Any person who subjects, permits, or encourages another person to engage in a harmful practice commits an offence and may be fined K5,000,000 and imprisoned for five years if convicted.

5. Subjecting another to a harmful practice Any person who subjects, permits or encourages another person to indulge in a harmful practice commits an offence and shall be liable, upon conviction to a fine of K5,000,000 and imprisonment for five years.

Section 5Verify source

Part IV

Prohibition of discrimination

§ 6Prohibition of HIV and AIDS discriminationOffence

Discrimination based on HIV or AIDS is prohibited, and a person who does it commits an offence.

6. Prohibition of HIV and AIDS discrimination (1) Discrimination on a basis related to HIV or AIDS is hereby prohibited. (2) A person who discriminates contrary to subsection (1) commits an offence and shall be liable, upon conviction to— (a) in the case of an individual, a fine of K5,000,000 and imprisonment for five years; or (b) in the case of a legal person, a fine of K10,000,000.

Section 6Verify source

§ 7Rights and duties of persons living with or vulnerable to contracting HIVProvision

People living with HIV, or vulnerable to contracting HIV, have specific rights to dignity, health, work, compensation, and free medication; people living with HIV must take the medicine provided under the section.

7. Rights and duties of persons living with or vulnerable to contracting HIV (1) Subject to section 26 , and in addition to any other rights conferred by any written law, a person who is living with HIV or vulnerable to contracting HIV , shall have the right to— (a) dignity of his person, physical integrity, life and health; (b) practice a profession of choice; (c) compensation associated with the restriction of his enjoyment of his rights, and (d) free medication, at a State medical institution, necessary for anti-retroviral therapy or treatment of an HIV related disease listed in the Second Schedule. [Second Schedule] (2) In addition to any other duties conferred by any written law, a person who is living with HIV shall have the duty to take medicine as provided in subsection (1)(d).

Section 7Verify source

§ 8Rights of persons affected with HIVOffence

People connected to someone living with HIV, or vulnerable to HIV, have rights to dignity, physical integrity, life, health, and compensation if their rights are restricted.

8. Rights of persons affected with HIV (1) In addition to any other rights conferred by any written law, a person related to or associated with another person who is living with HIV or who is vulnerable to contracting HIV has the right to— (a) dignity, physical integrity, life and health; and (b) compensation associated with the restriction of the enjoyment of his rights. (2) A person who violates a right contrary to subsection (1) commits an offence and shall be liable, upon conviction to— (a) in the case of an individual, a fine of K5,000,000 and imprisonment for five years; or (b) in the case of a legal person, a fine of K10,000,000.

Section 8Verify source

Part V

Disclosure

§ 9Right to privacy and confidentialityProvision

People living with HIV have a right to privacy and confidentiality about their status, and health service providers must keep related medical information confidential.

9. Right to privacy and confidentiality (1) A person living with HlV has the right to privacy and confidentiality with regard to information concerning his status. (2) It shall be the duty of every health service provider to strictly observe confidentiality in handling all medical information concerning a person living with HIV .

Section 9Verify source

§ 10Disclosure by health service providerProvision

A health service provider must not disclose a person’s HIV status to others unless a listed exception applies.

10. Disclosure by health service provider (1) A health service provider shall not disclose any information concerning a person's HIV status to another person, except— (a) with the written all consent of the first person, his guardian, partner or parent, as the case may be; (b) to a health service provider directly involved in providing health care to that person, where knowledge of the patient's diagnosis of HIV infection is necessary or relevant to making clinical decisions in the best interests of the person; (c) for the purpose of an epidemiological study, where the release of information cannot be expected to identify the person to whom it relates; or (d) upon an order of a court, where the information contained in the medical file is directly relevant to the proceedings before the court. (2) A health care provider providing treatment, care or service to a person living with HIV may notify a sexual partner of the person living with HIV ,— (a) where the following circumstances exist— (i) in the opinion of the health service provider , there is a significant risk of transmission of HIV by the person living with HIV to the sexual partner; (ii) counseling of the person living with HIV has failed to achieve change in behaviour necessary to sufficiently reduce the risk of HIV transmission to the sexual partner; (iii) the person living with HIV has refused to notify or consent to the notification of the sexual partner; (iv) the health service provider gives the person living with HIV advance notice for a period that is reasonable in the circumstances; (v) in the opinion of the health service provider , the person living with HIV is not at risk of serious harm as a consequence of any notification to the sexual partner; (vi) the person living with HIV is dead, unconscious or otherwise unable to give consent to the notification; or (vii) the person living with HIV is unlikely to regain consciousness or the ability to give consent; and (c) in the opinion of the health service provider , there is or was a significant risk of transmission of HIV by the person living with HIV to the sexual partner. [Please note: numbering as in original.]

Section 10Verify source

§ 11Unlawful disclosureOffence

A person must not disclose another person’s HIV status except as allowed by the Act.

11. Unlawful disclosure A person who discloses the HIV status of another person otherwise than as provided for under this Act commits an offence and shall be liable, upon conviction, to— (a) in the case of an individual, a fine of K5,000,000 and imprisonment for five years; or (b) in the case of a legal person, to a fine of K10,000,000.

Section 11Verify source

Part VI

Public health

§ 12HIV transmission and testingProvision

This section lists recognized HIV transmission modes and the HIV testing modes included under the Act.

12. HIV transmission and testing (1) In this Act, the recognized modes of transmission of HIV shall include transmission of HIV through— (a) sexual activity; (b) mother to child during pregnancy, labour, delivery or breastfeeding; (c) transfusion of infected blood; (d) transplant of an infected organ; (e) contact of broken skin or mucus membrane with infected blood, blood products or tissue ; and (f) contact of broken skin or mucus membrane with contaminated wet objects. (2) The modes of HIV testing shall include— (a) VCT ; (b) routine testing ; (c) diagnostic testing ; (d) compulsory testing; and (e) any other mode of HIV testing that the Minister may prescribe.

Section 12Verify source

§ 13Age for accessing VCT without parental or guardian consentProvision

People aged 13 or older may access VCT without parental or guardian consent. If a child under 13 has no parent or legal guardian and seeks VCT, the health service provider must ask a social welfare officer to apply to the magistrate court for a legal guardian.

13. Age for accessing VCT without parental or guardian consent A person who is at least thirteen years of age may access VCT without the consent of a parent or a legal guardian. (2) Where a person below the age of thirteen years who does not have a parent or legal guardian seeks VCT , the health service provider whose services are requested in order to access VCT shall request a social welfare officer to apply to the magistrate court for the appointment of a legal guardian of the applicant.

Section 13Verify source

§ 14Consent to HIV testingProvision

A person must not test someone else for HIV unless one of the listed consent exceptions applies.

14. Consent to HIV testing A person shall not test another person for HIV infection except— (a) with voluntary informed consent of the person to be tested; (b) where the person to be tested is below the age of thirteen years, with the voluntary informed consent of a parent or legal guardian of that person; or (c) where the person to be tested has a disability which in the opinion of the person providing the pre-test information, renders the person incapable of understanding the meaning and consequences of HIV testing , with the voluntary informed consent of one of the follow ing persons, said consent to be sought from these persons in the order in which they are listed— (i) his partner or spouse; (ii) his legal guardian; (iii) an immediate family member ; or (d) where a person is required to undergo HIV testing under the provisions of this Act or any other written law.

Section 14Verify source

§ 15Testing donated body tissuesProvision

People who want to donate tissue must get HIV testing right before donation, and health service providers must not accept the tissue unless the donor has tested HIV negative. The proposed recipient or an immediate family member may demand further HIV testing of the donated tissue.

15. Testing donated body tissues (1) A person who offers to donate any tissue shall, immediately before the donation, undergo HIV testing . (2) A health service provider shall not accept a donation of any tissue unless the donor has undergone HIV testing pursuant to subsection (1) and the result is HIV negative. (3) Notwithstanding subsections (1) and (2), the proposed recipient of the donated tissue or his immediate family member shall have the right to demand further HIV testing on the donated tissue .

Section 15Verify source

§ 16Testing of donated bloodProvision

Health service providers must test donated blood for transfusion-transmissible HIV infection soon after donation, and infected blood must be disposed of immediately.

16. Testing of donated blood (1) A health service provider shall, as soon as practicable after donation, among other tests, subject donated blood to testing for transfusion transmissible HIV infection. (2) Any blood tested under subsection (1) which is found to be infected with HIV shall immediately be disposed of in accordance with the prescribed guidelines on the disposal of medical waste.

Section 16Verify source

§ 17Section 17Provision

Consent to HIV testing is treated as given in certain donation or treatment situations.

17. Consent to be deemed Consent to undergo HIV testing shall be deemed to have been given in the following circumstances where— (a) a person offers to donate any tissue ; (b) a person offers to donate blood; or (c) it is prudent for a health service provider responsible for the treatment of a person to undertake HIV testing in respect of that person and— (i) the person is unconscious and unable to give consent; or (ii) the health service provider reasonably believes that HIV testing is clinically necessary in the interest of that person.

Section 17Verify source

§ 18Prohibition of compulsory testingOffence

Compulsory HIV testing is prohibited, except where a court orders it for a person convicted of a sexual offence.

18. Prohibition of compulsory testing (1) Compulsory testing for HIV infection is hereby prohibited. (2) Notwithstanding subsection (1), compulsory testing for HIV infection shall be permissible under an order of the court, for any person who is convicted of a sexual offence. (3) A person who contravenes the provisions of subsection (1) commits an offence and shall be liable, upon conviction, to— (a) in the case of an individual, a fine of K5,000,000 and imprisonment for five years; or (b) in the case of a legal person, to a fine of K10,000,000. (4) In addition to the penalties imposed under subsection (3), a court may, upon conviction, order— (a) in the case of a legal person, the revocation of any permit or licence; or (b) in the case of an individual, the revocation of a licence to practice the person's profession.

Section 18Verify source

§ 19Pre-test and post-test counselingProvision

Health service providers who perform an HIV test must provide free pre-test and post-test counseling to the person tested.

19. Pre-test and post-test counseling (1) A health service provider who carries out an HIV test on any person shall be required to provide free pre-test and post-test counseling to the person. (2) Notwithstanding subsection (1), a person who carries out HIV testing on any person for purposes of blood transfusion shall not be required to conduct pre-test and post-test counseling .

Section 19Verify source

§ 20Duty to report HIV infectionProvision

A health service provider who carries out HIV testing must submit monthly reports to the District Health Officer about the number of HIV tests and the incidence of HIV infection.

20. Duty to report HIV infection A health service provider who carries out HIV testing has a duty to give monthly reports of the number of HIV tests conducted and the incidence of HIV infection to the District Health Officer, for statistical and epidemiological purposes only.

Section 20Verify source

§ 21Prohibition of discrimination in health facilityOffence

Health facilities must not deny access to health services or charge higher fees because of a person’s actual or perceived HIV status.

21. Prohibition of discrimination in health facility (1) A person shall not be denied access to health services or be charged a higher fee for any health services, at a health facility, on the grounds of actual or perceived HIV status of the person. (2) Any person who contravenes subsection (1) commits an offence and shall be liable, upon conviction, to— (a) in the case of an individual, a fine of K5,000,000 and imprisonment for five years; or (b) in the case of a legal person, to a fine of K10,000,000. (3) Notwithstanding the provisions of subsection (2), a court may, in addition to any penalty imposed on a person convicted, order— (a) in the case of an individual, revocation of a licence to practice the person's profession; or (b) in the case of a legal person, revocation of the business permit or licence in respect thereof.

Section 21Verify source

Part VII

Information

§ 22Access to HIV and AIDS informationProvision

A person may access HIV and AIDS information held by the State if it is needed to exercise that person’s rights. The person in charge of such information must ensure it is relevant to the requester’s rights.

22. Access to HIV and AIDS information (1) A person has the right to access information in connection with HIV and AIDS held by the State or any organ of the State, where the information is necessary for the exercise of his rights. (2) A person who is in charge of information on HIV and AIDS has a duty to ensure that the information is relevant to the exercise of the rights of a person requesting the information

Section 22Verify source

§ 23Powers in relation to HIV and AIDS informationProvision

The Commission has power to develop, co-ordinate, and disseminate information on HIV and AIDS.

23. Powers in relation to HIV and AIDS information The Commission shall, in addition to the powers conferred on it by this Act, have the power to develop, co-ordinate and disseminate information on HIV and AIDS .

Section 23Verify source

§ 24Accrediting authorityProvision

The Commission must accredit HIV and AIDS information before it is shared publicly, and people who develop such information must submit it to the Commission for screening and verification first.

24. Accrediting authority (1) The Commission shall accredit any piece of information on HIV and AIDS before it is disseminated to the public. (2) A person who develops information on HIV and AIDS shall submit the information to the Commission for screening and verification in order to establish its accuracy before dissemination. (3) The Commission has a duty to ensure that information on HIV and AIDS is accurate and has been accredited by the Commission .

Section 24Verify source

§ 25Publication of misleading informationOffence

Publishing misleading, false, or inaccurate HIV/AIDS information to another person or the public is an offence.

25. Publication of misleading information A person who proclaims, utters, publishes misleading, false or inaccurate information concerning HIV and AIDS to any other person or the public commits an offence and shall be liable, upon conviction, to— (a) in the case of an individual, a fine of K5,000,000 and imprisonment for five years; or (b) in the case of a legal person, a fine of K10,000,000: Provided that there shall be an aggravating circumstance of the offence if the misleading, false or inaccurate information was not accredited by the commission.

Section 25Verify source

Part VIII

Employment

§ 26Prohibition of pre-recruitment testingProvision

An employer must not require HIV testing as a condition of recruitment.

26. Prohibition of pre-recruitment testing An employer shall not require any person to undergo HIV testing as a pre-condition for recruitment.

Section 26Verify source

§ 27Prohibition of termination of employment on grounds of HIV or AIDSOffence

An employer must not end an employee’s employment solely because the employee has HIV or is perceived to have HIV.

27. Prohibition of termination of employment on grounds of HIV or AIDS (1) An employer shall not terminate the employment of an of employee solely on the ground that the employee is living with HIV or is perceived to be living with HIV : Provided that where the capacity of an employee to discharge his duties is affected by reason of poor health, the general principles of employment law shall apply. (2) A person who contravenes this subsection (1) commits an offence and shall be liable, upon conviction to— (a) in the case of an individual, a fine of K5,000,000 and imprisonment for five years; or (b) in the case of a legal person, to a fine of K10,000,000.

Section 27Verify source

§ 28Prohibition of discriminationOffence

Employees must not be discriminated against or unfairly treated because of perceived or actual HIV status. Employers must reasonably accommodate employees with HIV-related illnesses, working with the employee, unless that would cause undue hardship. Breach is an offence with fines and possible imprisonment.

28. Prohibition of discrimination (1) An employee shall not be discriminated against or be subjected to unfair treatment solely on the ground that he is perceived to be or is living with HIV . (2) Employers in consultation with the employee shall take measures to reasonably accommodate employees with HIV related illnesses provided the accommodation shall not cause undue hardship to the employer. (3) A person who contravenes this subsection (1) commits an offence and shall be liable, upon conviction to— (a) in the case of an individual, a fine of K5,000,000 and imprisonment for five years; or (b) in the case of a legal person, to a fine of K10,000,000.

Section 28Verify source

§ 29Procuring another to conduct HIV test for recruitment, etcOffence

A person must not arrange for someone else to conduct HIV testing as a condition for recruitment or other employment-related decisions.

29. Procuring another to conduct HIV test for recruitment, etc A person who procures another person to conduct HIV testing as a condition for recruitment, training, promotion, termination of employment or other matters arising out of an employment relationship commits an offence and shall be liable, upon conviction to— (a) in the case of an individual, a fine of K2,500,000 and to imprisonment for three years; or (b) in the case of a legal person, a fine of K5,000,000.

Section 29Verify source

§ 30Aiding, abetting or concealing act of subjecting another to HIV test for recruitmentOffence

A person must not help another require HIV testing as a condition of recruitment or other employment-related decisions.

30. Aiding, abetting or concealing act of subjecting another to HIV test for recruitment A person who aids, abets or assists another person to conduct HIV testing as a condition for recruitment, training, promotion, termination of employment or other matters arising out of an employment relationship commits an offence and shall be liable, upon conviction to— (a) in the case of an individual, a fine of K5,000,000 and to imprisonment for five years; or (b) in the case of a legal person, to a fine of K10,000,000.

Section 30Verify source

§ 31Employer responsible for minimizing risk of infection at work placeProvision

Employers must provide HIV risk-reduction training, protective equipment, and clear guidelines, and must ensure free access to post-exposure prophylaxis and counseling after accidental workplace exposure.

31. Employer responsible for minimizing risk of infection at work place (1) Where a person is employed in an occupation or is required to provide services where there may be a risk of transmitting or acquiring HIV , the employer shall provide appropriate training, protective equipment and clear and accurate information and guidelines on minimizing the risk of the spread of HIV . (2) In the case of accidental exposure to HIV occurring in the workplace, the employer shall ensure free access to post-exposure prophylaxis and counseling for the employee in accordance with the law.

Section 31Verify source

§ 32Workplace policyProvision

Employers must adopt and implement an HIV and AIDS workplace policy, and the policy’s design and content must follow ministerial guidelines.

32. Workplace policy (1) The State shall ensure that employers adopt and implement an HIV and AIDS policy at the workplace. (2) The design and content of the workplace policy shall be in accordance with the policy guidelines issued by the Minister.

Section 32Verify source

§ 33CompensationProvision

An employee infected with HIV in the course of employment can claim compensation, and may get higher compensation if the infection resulted from the employer’s section 31 non-compliance or negligence.

33. Compensation (1) An employee who has been infected with HIV in the course of employment shall have the right to claim compensation in accordance with the Workers' Compensation Act. [Cap. 55:03] (2) An employee who is infected with HIV in the course of his employment is entitled to higher compensation, where he is able to show that his infection is due to non-compliance, by the employer, of section 31 or is otherwise due to negligence of the employer.

Section 33Verify source

Part IX

Education

§ 34Prohibition of HIV testing for educational opportunitiesOffence

No one may be required to take an HIV test as a condition for entry to, staying in, or receiving a scholarship or similar benefit from an education or training institution.

34. Prohibition of HIV testing for educational opportunities (1) A person shall not be required to undergo HIV testing as a condition for— (a) entry into an education or training institution; (b) an award of a scholarship, grant, bursary, benefit or other scholarly endowment; or (c) remaining as a student or trainee in any education or training institution. (2) A person who contravenes subsection (1) commits an offence and shall be liable, upon conviction to— (a) in the case of an individual, a fine of K5,000,000 and imprisonment for five years; or (b) in the case of a legal person, a fine of K10,000,000.

Section 34Verify source

§ 35Prohibition of discrimination in education and training institutionsOffence

Education and training institutions must not discriminate against, deny admission to, expel, exclude from activities, or withhold benefits or services from a person solely because the person has HIV or is perceived to have HIV.

35. Prohibition of discrimination in education and training institutions (1) An education or training institution shall not, solely on the grounds that the person is living with HIV or is perceived to be living with HIV ,— (a) refuse the person admission into the institution; (b) expel a person from the institution; (c) discriminate against the person; (d) refuse the person participation in an event or activity; or (e) deny any benefits or services to a person. (2) A person who contravenes subsection (1) commits an offence and shall be liable, upon conviction to— (a) in the case of an individual, a fine of K5,000,000 and imprisonment for five years; or (b) in the case of a legal person, a fine of K10,000,000. (3) Notwithstanding the provisions of subsection (2), a court may, in addition to any penalty imposed on a person convicted, order— (a) in the case of an individual, revocation of the licence to practice his profession; or (b) in the case of a private education or training institution, revocation of the business permit, licence or certificate.

Section 35Verify source

§ 36HIV and AIDS materials in school curriculaProvision

The Minister must ensure HIV and AIDS materials are built into school curricula, and that the materials are age-appropriate, scientifically accurate, non-stigmatizing, and available in key languages.

36. HIV and AIDS materials in school curricula (1) The Minister shall, in consultation with the Minister responsible for Education, the Commission and other relevant authorities, ensure that materials on HIV and AIDS are integrated and mainstreamed into the school curricula for all education and training facilities at all levels. (2) Pursuant to subsection (1), the Minister shall ensure that the materials on HIV and AIDS developed and integrated into the school curriculum are— (a) appropriate for the level of education it is intended, having regard to the following factors— (i) the age of learners; (ii) the level of mental maturity of the learners; and (iii) the objective of the materials used; (b) free from all forms of stigmatization and discrimination against persons living with HIV ; (c) the content of the education is scientifically accurate and appropriate; and (d) materials are available in key languages taking into account matters of disability and location.

Section 36Verify source

§ 37Teachers and instructors to be trained on matters of HIV and AIDSProvision

The Minister must ensure teachers and instructors are trained on HIV and AIDS matters before they begin teaching related subjects.

37. Teachers and instructors to be trained on matters of HIV and AIDS The Minister shall ensure that teachers and instructors are trained on matters of HIV and AIDS before commencing teaching or instruction on any subject related to HIV and AIDS .

Section 37Verify source

§ 38HIV and AIDS information in non-formal education systemsProvision

The Minister must ensure official HIV transmission and prevention information is progressively integrated into non-formal or indigenous learning systems.

38. HIV and AIDS information in non-formal education systems The Minister shall ensure that official information on modes of transmission and ways of preventing HIV infection is progressively integrated in non-formal or indigenous learning systems.

Section 38Verify source

Part X

Personal conduct and responsibility

§ 39Person with HIV or AIDS to undergo counselingProvision

A person diagnosed with HIV infection must undergo counseling and follow precautions and safety measures prescribed by a health service provider.

39. Person with HIV or AIDS to undergo counseling A person diagnosed as having HIV infection shall be required to— (a) undergo counseling by a health service provider ; and (b) comply with precautions and safety measures prescribed by a health service provider .

Section 39Verify source

Part XI

National AIDS Commission

§ 40Establishment of National AIDS CommissionProvision

This section creates the National AIDS Commission and says it must carry out its functions and powers independently of any other person or authority.

40. Establishment of National AIDS Commission (1) There is hereby established a body to be known as the National AIDS Commission (in this Act referred to as "the Commission "). (2) The Commission shall exercise its functions and powers independent of the direction or intereference of any other person or authority.

Section 40Verify source

§ 41Function of the CommissionProvision

The Commission must carry out a wide range of HIV and AIDS response functions, including coordination, policy support, information management, monitoring, resource handling, reporting, accreditation of information, and staff terms and conditions.

41. Function of the Commission The Commission shall, with respect to HIV and AIDS ,— (a) implement, co-ordinate and facilitate the national response; (b) manage and co-ordinate the implementation of Government policies; (c) provide technical support to Government in the formulation and review of HIV and AIDS policies; (d) develop and maintain an up-to-date information system and establish suitable mechanisms of disseminating and utilizing the information; (e) in liaison with the Secretary responsible for HIV and AIDS , monitor and evaluate progress and impact of the national response; (f) mobilize and equitably disburse resources towards the national response; (g) monitor distribution, and effective and efficient utilization of resources towards the national response; (h) promote and commission research, information sharing and documentation; (i) liaise with all Government Ministries, Departments and Agencies on matters relating to the national response and to ensure that there are no barriers to information; (j) advocate for a strong, sustained and visible role of political, civil and traditional leaders; (k) accredit information produced by any person before dissemination; (l) develop and maintain profiles; (m) provide technical guidance, capacity building and support to stakeholders; (n) submit reports to the Minister on the implementation of the national response; and (o) determine terms and conditions for the Chief Executive Officer and other members of staff of the Commission .

Section 41Verify source

§ 42Powers of the CommissionProvision

The Commission has powers to organize events, receive and allocate donations, hire consultants, set its own procedures, form committees, co-opt attendees, request certain HIV/AIDS information, and do other acts needed to implement the Act.

42. Powers of the Commission The Commission shall have powers to— (a) sponsor, support or organize conferences, seminars, workshops and meetings on any matter under its consideration or generally for the promotion of its functions and objects; (b) receive and allocate donations of funds, materials and technical assistance for the furtherance of its work and ensure the effective utilization of those funds; (c) engage persons having suitable qualifications and experience as consultants to the Commission ; (d) determine its own procedures for carrying out consultancies for the general conduct of its work; (e) establish committees as it considers necessary for the performance of its functions and assign to the committees any of its functions without prejudice to the power of the Commission itself to perform those functions; (f) co-opt any person to attend any of its meetings but that person shall not vote on any matter for decision by the Commission ; (g) reguest any information relating HIV and AIDS and not privileged from disclosure from any person or institution as part of its coordination function; and (h) do and perform all other things or acts that are necessary or expedient for the implementation of this Act.

Section 42Verify source

§ 43Composition of the CommissionProvision

The Minister must advertise for Commission appointments, the Commission membership cannot exceed seven commissioners, and certain ex-officio/public service members cannot be chairperson but may vote.

43. Composition of the Commission (1) Membership of the Commission shall not exceed seven commissioners and shall consists of— (a) three commissioners, appointed by the Minister, one of whom— (i) is professionally qualified in the medical sciences or a relevant social science field; (ii) is a member of the civil society, representing people living with HIV ; (iii) is professionally qualified and practicing accountant; (iv) represents the private sector; (b) as ex-officio commissioners,— (i) the Secretary responsible for HIV and AIDS ; (ii) the Secretary responsible for gender or children; and (iii) the Secretary responsible for Local Government. (2) The Minister shall place advertisements in at least two daily papers of widest circulation in Malawi in order to solicit names of persons for appointment to the Commission . (3) An ex-officio commissioner or any person employed in the public service shall not be eligible to be elected chairperson of the Commission but shall have the right to vote on any matter at the meetings of the Commission . (4) Non ex-officio commissioners shall not, by virtue of their appointment to the Commission , be deemed to be officers in the public service. (5) The names of all commissioners, as first constituted and every change in the membership thereof shall be published in the Gazette.

Section 43Verify source

§ 44Tenure of officeOffence

Commissioners generally serve three years from appointment, may be reappointed for one more term, and appointed commissioners may resign with one month’s written notice to the Minister.

44. Tenure of office (1) A commissioner, other than an ex-officio commissioner, shall hold office for a period of three years from the date of appointment and be eligible for re-appointment at the expiry of that period for one more term. (2) When making appointments after the expiry of the three years, the Minister shall have regard to the need to maintain a reasonable degree of continuity in the membership of the Commission , so that at least half of the appointed commissioners shall be re-appointed for the next term of office. (3) A vacancy in the office of an appointed commissioner shall occur, if the commissioner— (a) dies; (b) is adjudged bankrupt; (c) is sentenced for an offence against any written law to any term of imprisonment; (d) is absent, without the permission of the Commission , from three successive meetings of the Commission of which he has had notice; (e) becomes incapacitated by reason of physical or mental disability; or (f) resigns in accordance with subsection (4). (4) An appointed commissioner may at any time resign his office by giving one month written notice to the Minister. (5) A vacancy in the membership of the Commission shall be filled by the appointment of a new commissioner by the Minister. (6) A person appointed to fill the vacancy shall serve for the remainder of the term of office but no person shall be so appointed where the remainder of the term of office is a period of less than six months.

Section 44Verify source

§ 45ChairpersonProvision

The Commission must elect a Chairperson from among the appointed commissioners at its first meeting, and the Chairperson serves until the end of their term as a commissioner unless removed under subsection (3).

45. Chairperson (1) There shall be a Chairperson of the Commission who shall be elected by the Commission from among the appointed commissioners at the first meeting of the Commission . (2) Subject to subsection (3), the Chairperson shall hold office until the expiry of his term of office as member of the Commission . (3) The chairperson may be removed from office as Chairperson by the Commission upon the unanimous decision of the rest of the members of the Commission for misconduct, incapacity or any other good cause.

Section 45Verify source

§ 46Commission may establish committeesProvision

The Commission may establish committees and must appoint a chairperson for each committee from among the commissioners.

46. Commission may establish committees (1) For the better carrying into effect of the provisions of this Act, the Commission may establish committees that the Commission shall deem appropriate, to perform any functions and responsibilities that the Commission shall determine subject to the directions of the Commission . (2) The Commission shall appoint a chairperson for each committee from amongst the commissioners. (3) The provisions of this Act relating to the meetings of the Commission shall apply mutatis mutandis to the meetings of the committees.

Section 46Verify source

§ 47Commission may co-optProvision

The Commission may, at its discretion, co-opt a person with special knowledge or expertise to attend its deliberations, but that person may not vote.

47. Commission may co-opt The Commission may, in its discretion, at any time and for any length of period, co-opt any person on account of his special knowledge or expertize to attend any deliberations of the Commission , but the person shall not be entitled to vote on any matter at any meeting of the Commission .

Section 47Verify source

§ 48Meeting of the CommissionProvision

The Commission must meet at least once every three months, the chairperson must give notice and convene meetings, and meetings must have a quorum and minutes.

48. Meeting of the Commission (1) The Commission shall meet as often as its business requires and in any event not less than once in every three months. (2) Meetings of the Commission shall be held at a place and a time that the Commission shall determine. (3) The chairperson shall convene the ordinary meetings of the Commission by giving commissioners at least fourteen days written notice. (4) The chairperson may, in his discretion, or shall, at the written request of more than four commissioners and within seven days of the request, convene an extraordinary meeting of the Commission to be summoned at a place and time that he may appoint. (5) A quorum for any meeting of the Commission shall be formed by the presence of more than half of the commissioners or members of a committee. (6) In the absence of a chairperson , the commissioners present and forming a quorum shall elect one of their number to preside over the meetings of the Commission , and the commissioner so elected shall exercise all the powers, duties and functions of the chairperson . (7) Subject to the provisions of this Act, the Commission shall regulate its procedure. (8) The Commission , and every committee of the Commission , shall record and keep minutes of its meetings.

Section 48Verify source

§ 49Disclosure of interestCommencement

Commissioners and Commission staff must disclose any pecuniary interest in a contract or related matter when it arises and must not join the discussion or vote on it.

49. Disclosure of interest If a commissioner or a member of staff of the Commissioner acquires any pecuniary interest, direct or indirect, in any contract, proposed contract or other matter and is present at a meeting of the Commission at which the contract, proposed contract or the other matter is the subject of consideration by the Commission , he shall at the meeting, as soon as practicable after the commencement of the meeting, disclose the fact to the Commission , and shall not take part in the consideration or discussion of or vote on any question with respect to, the contract, proposed contract or the other matter.

Section 49Verify source

§ 50Section 50Provision

Remuneration Commissioners are entitled to reasonable pay and allowances for membership, while carrying out their duties, as determined by the Minister responsible for Finance.

50. Remuneration Commissioners shall be paid reasonable remuneration for membership and allowances when discharging their duties determined by the Minister responsible for Finance.

Section 50Verify source

§ 51ReportingProvision

The Commission must report to the Minister on the Commission’s activities.

51. Reporting The Commission shall report to the Minister on the activities of the Commission .

Section 51Verify source

§ 52Chief Executive OfficerProvision

The Commission appoints the Chief Executive Officer, and the office must be held by a qualified person for a three-year term, renewable for satisfactory service.

52. Chief Executive Officer (1) There shall be the office of the Chief Executive Officer of the Commission which shall be a public office. (2) The Chief Executive Officer shall be appointed by the Commission , on the recommendation of the Commission , on terms and conditions that the Commission determines. (3) The office of the Chief Executive Officer shall be held by a person who has had experience and shown capacity in a profession or in activities devoted or relevant to HIV and AIDS . (4) The Chief Executive Officer shall hold office for a period of three years, subject to renewal on account of satisfactory service.

Section 52Verify source

§ 53Procedure for appointment of Chief Executive OfficerProvision

The chairperson must publish a public advertisement for CEO applications within 30 days, and the Commission must assess, interview, and recommend the most eligible candidate to the Minister.

53. Procedure for appointment of Chief Executive Officer (1) The chairperson shall sign and issue a public advertisement inviting applications, in writing and within thirty days, for the post of Chief Executive Officer . (2) The Commission shall assess the applications received pursuant to subsection (1), and— (a) may seek other or further information pertaining to an applicant, from the applicant or any other person or source; (b) shall interview each eligible short listed applicant; and (c) shall recommend to the Minister, the most eligible candidate for appointment as Chief Executive Officer .

Section 53Verify source

§ 54Duties of Chief Executive OfficerProvision

The Chief Executive Officer is responsible for day-to-day management of the Commission and for administrative control of other staff, subject to the Commission’s general and special directions.

54. Duties of Chief Executive Officer Subject to the general and special directions of the Commission , the Chief Executive Officer shall be responsible for the day to day management of the Commission and administrative control of other members of staff of the Commission and, in that regard, shall be answerable and accountable to the Commission .

Section 54Verify source

§ 55Removal of Chief Executive OfficerOffence

The Chief Executive Officer may be removed by the Commission, but only with the Minister’s approval, and only on listed grounds.

55. Removal of Chief Executive Officer The Chief Executive Officer may be removed from office by the Commission with the approval of the Minister on the following grounds— (a) misconduct; (b) incompetence; (c) unfitness to discharge duties; or (d) incapacity, by reason of physical or mental illness. (e) is sentenced for an offence against any written law to any term of imprisonment; or (f) is adjudged bankrupt.

Section 55Verify source

§ 56Staff of the CommissionProvision

The Commission must employ necessary staff, appoint its staff on terms it تعیینs, and may delegate some junior-rank appointments in writing to the Chief Executive Officer, who must report each delegated appointment.

56. Staff of the Commission (1) There shall be employed in the service of the staff of the Commission , subordinate to the Chief Executive Officer , other management, professional, research, technical, administrative and other support staff as the Commission shall consider necessary for the exercise of its powers and the performance of its duties and functions, who shall be officers in the public service. (2) The staff of the Commission under subsection (1) shall be appointed by the Commission on the terms and conditions that the Commission shall determine: Provided that the Commission may, by directions in writing, delegate to the Chief Executive Officer , the appointment of its staff in other junior ranks as it shall specify and the Chief Executive Officer shall report to the Commission every appointment made pursuant to this subsection.

Section 56Verify source

§ 57Attendance of meetings by staffProvision

The Chief Executive Officer, or a Commission officer designated with approval, must attend Commission meetings to take minutes and join deliberations, but cannot vote.

57. Attendance of meetings by staff (1) The Chief Executive Officer , or any other officer of the Commission as the Chief Executive Officer may designate with the approval of the Commission , shall attend meetings of the Commission or any committee of the Commission to record the minutes of the meetings and take part in the deliberations thereof subject to the directions of the Commission or committee but shall not be entitled to vote. (2) Where in any meeting, the deliberations of the Commission or of a committee of the Commission concerns the Chief Executive Officer or any officer of the Commission designated to attend the meeting, the Commission or the committee, as the case may be, may exclude the Chief Executive Officer or the officer from the meeting.

Section 57Verify source

Part XII

Financial provisions

§ 58Funding of the CommissionProvision

The Commission’s funds come from parliamentary appropriations, donations, sale of property, and other lawful sources, and it must always comply with the Public Audit Act, Public Finance Management Act, and Public Procurement Act.

58. Funding of the Commission (1) The funds of the Commission shall consist of— (a) sums appropriated by Parliament for the purposes of the Commission ; (b) donation of funds, materials or any other resources for the purposes of its functions, powers and duties; (c) funds that are derived from the sale of any property by or on behalf of the Commission ; and (d) other lawful sources of funding. (2) The Commission shall, at all times, comply with the provisions of the Public Audit Act, the Public Finance Management Act and the Public Procurement Act. [Cap 37:01; Cap 37:02; Cap 37:03]

Section 58Verify source

§ 59Accounts and auditProvision

The Commission must keep proper accounting records, have its accounts audited annually, and submit an annual report to the National Assembly within six months after the financial year ends.

59. Accounts and audit (1) The Commission shall cause to be kept proper books and other records of accounts in respect of receipts and expenditures of the Commission in accordance with acceptable principles of accounting. (2) The accounts of the Commission shall be audited annually by the Auditor General or by independent professional auditors appointed by the Commission in consultation with the Auditor General, and the expenses of the audit shall be paid out of the funds of the Commission . (3) The Commission shall as soon as practicable, but not later than six months after the end of the financial year, submit to the National Assembly an annual report on all financial transactions of the Commission and on the work, activities and operations of the Commission . (4) The report referred to in subsection (3) shall include a balance sheet and an income and expenditure account, shall be laid before the National Assembly in accordance with the provision of Public Audit Act.

Section 59Verify source

Part XIII

Miscellaneous

§ 60Powers of the MinisterAmendment

The Minister may, by notice in the Gazette, make regulations to carry out the Act better and amend any schedule to the Act.

60. Powers of the Minister The Minister may, by notice in the Gazette,— (a) make regulations for the better carrying out of this Act; (b) amend any schedule to this Act.

Section 60Verify source

§ 61Agreements, licenses, permits, etcCommencement

Existing agreements, permits, property, and pending court proceedings tied to the former National AIDS Commission trustees are carried over to the Commission or Minister, subject to the Act and other written law.

61. Agreements, licenses, permits, etc (1) Any agreement, document or permission, made, granted or approved by the Registered Trustees of the National AIDS Commission shall, in so far as it is consistent with the provisions of this Act and except as otherwise expressly provided in this Act or in any other written law, continue and be deemed to have been made, granted or approved by the Commission or the Minister as the case may be, under the corresponding provisions of this Act. (2) Any property and undertakings owned by the Registered Trustees of the National AIDS Commission and used by them, immediately before the commencement of this Act, for the functions which by this Act are transferred to or vested in the Registered Trustees of the National AIDS Commission shall, on the date aforesaid, by virtue of this Act be transferred to and vested in the Commission by the same title by which they were held immediately before the said date. (3) Where, immediately before commencement of this Act any legal proceedings are pending to which the Registered Trustees of the National AIDS Commission were entitled to be a party, the Commission shall, as from the date of commencement of this Act continue in such proceedings, or shall be made a party thereto in like manner as the Commission could have become, and the proceedings shall not abate by reason of the substitution.

Section 61Verify source

Part XIV

Transition

§ 62Transfer of assets, funds, liabilities, etcCommencement

The Commission must apply to register transferred property within one year, and the registering authority must process the registration without charging fees.

62. Transfer of assets, funds, liabilities, etc (1) Property, assets, funds, liabilities, obligations, and other arrangements existing at the commencement of this Act and vested in, acquired, incurred or entered into by or on behalf of the Registered Trustees of the National AIDS Commission , shall, on the commencement of this Act, be deemed to have vested in, or to have been acquired, incurred or entered into by or on behalf of the Commission and shall become enforceable by, or against, the Commission to the same extent as they were enforceable by or against the Registered Trustees of the National AIDS Commission . (2) Where the transfer of any property transferred to or vested in the Registered Trustees of the National AIDS Commission under subsection (1) is required by any written law to be registered, the Commission shall, within one year from the commencement of this Act or within any other period as the written law may prescribe, apply to the appropriate registering authority for the registration of the transfer, and thereupon the registering authority shall, at no cost to the Commission or any person by way of registration fees, stamp or other duties— (a) make such entries in the appropriate register as shall give effect to the transfer; (b) where appropriate, issue to the Commission certificate of title or other statutory evidence of ownership of the property or make such amendments on such certificates or in the appropriate register as may be necessary; and (c) make any necessary endorsement on such deeds or other documents as may be presented on such registering authority relating the title, right or obligation concerned.

Section 62Verify source

§ 63Transfer of employeesCommencement

Staff appointed before commencement are treated as appointed under the Act, and employees in post just before commencement are treated as transferred to the Commission on their existing terms.

63. Transfer of employees (1) All appointments of staff of the Registered Trustees of the National AIDS Commission made prior to the commencement of this Act and subsisting at the date of commencement of this Act shall be deemed to have been made in accordance with this Act. (2) Any person who, immediately prior to the commencement of this Act is employed by the Registered Trustees of the National AIDS Commission shall be deemed to have been transferred to the employment of the Commission under his former terms and conditions of service, and, for the purpose of determining his rights thereunder, his service shall be regarded as continuous from the time he was appointed by the Registered Trustees of the National AIDS Commission . First Schedule (Section 4) Harmful practices 1. Chimwanamaye 2. Fisi 3. Hlazi 4. Chijura mphinga 5. Kuchotsa fumbi 6. Chiharo 7. Kuika mwana kumalo 8. Kujura nthowa 9. Kulowa or kupita kufa 10. Kulowa or kupita ngozi 11. Kupimbira 12. Kupondera guwa 13. Kusamala mlendo 14. Kutsuka mwana 15. Mbirigha 16. Gwamula 17. Mwana akule 18. Bulangete la mfumu Second Schedule (Section 7) HIV related diseases 1. Kaposi's sarcoma 2. Chronic and recurrent diarrhoea 3. Oral and oesophageal candidiasis 4. Herpes zoster 5. High Grade B cell malignant lymphoma 6. Cryptococcal and other fungal meningitis 7. Pneumocystic carini pneumonia 8. Pulmonary or disseminated tuberculosis

Section 63Verify source

Legislative relationships

3 referenced instruments

Names are derived from the stored provision headings and citation-enrichment layer. Treat this as a research index and verify each relationship against the source text.

A–F

1 instrument

any schedule to the Act
Section 60

N–S

2 instruments

Public Audit Act
Sections 58, 59
Registered Trustees of the National AIDS Commission made prior to the commencement of this Act
Section 63

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9 Feb 2018 · currentEnglish

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