Ugandan president Yoweri Museveni has signed into law a supposed HIV prevention bill that will make people living with HIV into criminals and deny them basic human rights.
The legislation, called the HIV Prevention and Control Act, was passed by the Ugandan Parliament in May. President Yoweri Museveni was urged to return the legislation to lawmakers for further work due to several troubling provisions but obviously he has now given his ascent to the bill, though precisely when he did so remains unclear.
The bill was described by parliament as a necessary reshaping of Uganda’s current HIV strategy and a tightening of prevention and testing methods. However, what the legislation seems more concerned with is criminalizing HIV positive people.
The legislation is available here, and throughout the next few paragraphs I will cite the section and subsection relevant to the point at hand.
The legislation does have some sensible measures, such as caring for women and their children who are found to be HIV positive, but human rights groups are more than a little concerned with aspects of the bill that would mean pregnant women (13b) and their partners (13c) could face mandatory HIV tests regardless of consent. Victims of sexual violence will also be forced to undergo testing (13a).
In fact, anyone could be forced to take a HIV test if, as under provision (11a) of the act, it is deemed that consent is being “unreasonably” withheld. There’s massive room for abuse there because this phrase isn’t qualified, and we know from health data from other countries and from the United States’ own AIDS crisis, that forced or coercive testing actually drives down the effectiveness of HIV prevention measures because people tend to stop using medical services and trusting medical advice.
Moving on to other provisions in the new law, a person who is charged with a “sexual offense” will be tested regardless of consent per provision (12). In a country that has actively sought to further criminalize its LGBT population with the stricken but still threatening Anti-Homosexuality Bill, this is yet another blow to civil liberties.
Furthermore, and perhaps most antagonistic of all, health providers could, and without seeking a court order, disclose somebody’s HIV status to an interested party — despite there being provisions elsewhere in the law that attempt to guard for privacy. Reads (18/2e):
[HIV status can be disclosed to] any other person with whom an HIV infected person is in close or continuous contact including a sexual partner if the nature of contact…poses a clear and present danger of HIV transmission to that person.
This very much depends on how we define “clear and present danger” but there seems no barrier to an employer quickly and easily finding out someone’s HIV status if they were to argue that they pose a threat to other workmates, even if that “threat” is overblown. In a country where, per the latest figures we have, unemployment and resulting poverty has reached new heights, this is doubly as injurious to those living with HIV.
The legislation also contains provisions to punish those who transmit HIV. Those who knowingly infect a sexual partner could face a fine of equivalent to $1,900 or a 10-year jail term, or both. That’s fairly standard. The real issue is with the next provision that says those who “attempt” to infect a partner earn themselves a five year jail term. The legislation does carry some admittedly strong caveats to this, for instance if a condom was used then the person would not be liable. However, human rights groups are very concerned that this is only lip-service and that the “attempted” transmission provision could also be abused in cases where, for instance, two men had a sexual relationship.
Human Rights Watch issued a statement back in May when the legislation was passed by parliament, saying:
“This HIV bill is yet another step backward in the fight against AIDS in Uganda,” said Maria Burnett, senior Africa researcher at Human Rights Watch. “It is founded on stigma and discrimination and based on approaches that have been condemned by international health agencies as ineffective and violating the rights of people living with HIV.”
Human rights groups point out that Uganda’s focus should not be on criminalization but instead on changing its approach to HIV/AIDS prevention, and particularly its advice on sex and contraceptives. Currently, Uganda still places heavy stock in abstinence-only sexual health and remains hostile to condom use, though its stance on the latter has softened slightly in recent years.
Despite the egregious provisions that I’ve spelled out above, some commentators have said that this legislation is on the whole reasonable, and that the Untied States is not in any position to judge given that it has several state laws that are still on the books that essentially criminalize HIV-positive people in similar ways. Undeniably, the United States continues to have a problem with certain states aggressively criminalizing people living with HIV. We have extensive coverage of cases like this both here on Care2 and across the media spectrum, and no one is ignoring that problem.
That acknowledged, the political and social climate in Uganda is very different to what it is in the United States. The political situation in Uganda does not allow for a robust defense of HIV-positive people either through legislation or through the courts. The comparison, while making a point, is ultimately unfair and it suggests that the concern over this law is overblown when, as evidenced above, it is not.
This new law could further impact minority populations, LGBT and those who engage in sex work at a time when the government is already aggressively pursuing them.
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