|Uganda’s HIV & AIDS Bill: A Human Rights Faux Pas|
|Written by Zanie le Grange (1)|
The Ugandan Law Reform Commission formulated a new HIV & AIDS Prevention and Control Bill for 2009 (2), which has recently received widespread criticism from human rights groups across the globe (3). The Bill is said to be a dangerous approach to already discredited views on how to prevent and control the spread of HIV & AIDS in Africa. Some of the clauses in the Bill, for example, call for mandatory testing of certain individuals such as pregnant women, sex workers and injecting drug users (IDUs). These clauses are in direct conflict with human rights views in the Constitution of Uganda, human rights organisations as well as the World Health Organisation (WHO) and the Joint United Nations Programme on HIV/AIDS (UNAIDS) (4). This CAI brief takes a closer look at the Ugandan Government’s prevention and control strategies for HIV & AIDS and examines how this Bill impacts on the human rights of HIV & AIDS sufferers in Uganda. The brief also discusses how this new Bill may influence Uganda’s success rate regarding the control and prevention of HIV & AIDS in the country.
A brief history of Uganda’s fight against HIV & AIDS
Uganda has been considered the model for controlling and preventing the spread of HIV & AIDS in Africa (5). Thanks to the strong leadership in the Government, broad-based partnerships with HIV & AIDS organisations, health organisations and international societies, and an effective educational campaign, a decline in the number of people living with HIV and AIDS was evident since the 1990s (6). This successful HIV prevention campaign is credited with decreasing the HIV prevalence among adults from 15% in the early 1990s to approximately 5% in 2001 (7). This campaign was based on the ABC approach (Abstinence, Being faithful and Condom use).
It now seems, however, that the number of people in Uganda who are living with the virus is once again on the increase (8). Many believe this may be due to the complacency of people’s attitude towards AIDS; it is seen as the normal course of life. This rise in HIV prevalence and the wide-spread attitude of complacency certainly necessitates the Ugandan Government’s review of their HIV & AIDS campaign, and the production of a more comprehensive programme that includes HIV testing with the ABC approach.
The HIV & AIDS Prevention and Control Bill
This proposed Bill by the Ugandan Government states: “The following persons shall be subjected to HIV tests for purposes of criminal investigation.” (9) This implies that the test taker does not have the right to retract or give their consent for the testing and goes against the international approach to AIDS, known as the three C’s - Confidentiality, Counselling and Consent (10). The WHO and UNAIDS have strict guidelines against mandatory and/or compulsory HIV testing, instead promoting voluntary HIV testing to prevent the individual loss of human rights (11).
The new Bill seems to target already marginalised, criminalised and vulnerable groups in society stating that sex workers, pregnant women, drug users and victims of sexual assault “shall be subjected” to HIV tests (12). Such inclusions make the health system appear to be prejudiced and discriminatory, and create major obstructions for the fight against and treatment for HIV & AIDS. By implementing obligatory testing for sexual assault victims, the Bill threatens the victim’s rights and might also harm them indirectly, since not only the source of the infection will be investigated but their sexual history as well. Pregnant women and girls lose their own personal right of decision making, also going against ethical guidelines of the health systems. By specifically targeting and naming certain groups/individuals in the Bill, the Ugandan Government opens the door for stigma and discrimination against these groups, and especially women, who are already subjected to more HIV testing due to pre and post-natal medical care (13).
Other issues regarding the Bill include the provision of consent, which is, according to the Bill, unnecessary when it is unreasonably withheld or for medical or psychological reasons the practitioner believes that such a test is clinically important for the patient (14). The category for giving consent is too broad and infringes on the individuals privacy when consent can so easily be overwritten due to a law that is clearly unspecific. Overwriting consent when a medical practitioner believes that it is important for the patient is unnecessary, since HIV is not an emergency condition and a person can live with this disease for a long period of time, this approach is excessive and unwarranted.
Clause 21 in the Bill states that an HIV infected person should inform their sexual partner about their positive status or face criminal charges (15). Similarly, this inclusion is also ethically questionable from a number of perspectives. Firstly, this clause impinges on the individual’s right to confidentiality and privacy, and once again may promote stigmatisation and discrimination towards people living with HIV & AIDS (16). Secondly, the criminalisation of not informing a sexual partner of one’s HIV status promotes abusive prosecutions of individuals (17). The Bill also permits the disclosure of HIV status without the individual’s consent, if certain conditions are met (18). These conditions are once again broad, unnecessarily sloppy and can easily be interpreted incorrectly, consequently having a negative influence on the HIV positive individual’s right to privacy and confidentiality.
The Bill also criminalises the “intentional transmission” of the virus to another person. Although recognition must be given to the fact that the deliberate transmission of the virus with the aim of infecting another person is wrong, the manner in which the Bill criminalises this transgression goes against existing laws in Uganda and international guidelines regarding HIV and human rights (19).
Possible repercussions of the Bill
The Bill aims to assist in the fight against HIV & AIDS in Uganda, specifically targeting the prevention and control of HIV. As the law stands, however, it violates the human rights of those already infected with the virus and a number of minority and at-risk groups. This Bill invokes fear rather than encouragement with the prevention of HIV. According to Joseph Amon, Health and Human Rights Director at Human Rights Watch (HRW), a fear arises that the mandatory testing and disclosure of HIV status will cause prosecution and violence rather than care and treatment of the disease (20).
A practical and true repercussion of the Bill is that HIV positive mother’s who breastfeed their babies, and thus, in this way transmit the disease, can be prosecuted under the new law if the Bill is passed. Once again, this negatively affects women since they cannot always negotiate condom use and their partners that were the source of their infection will not be recognised by the law as it now stands (21).
With recent research showing an increasing HIV prevalence rate in Uganda, it is necessary to either change strategies or update previously successful models. According to Beatrice Were of the Uganda Network on Law, Ethics and HIV & AIDS, “We know what works and what doesn’t in fighting HIV…This bill, unfortunately, is full of ineffective approaches that violate human rights and will set us back in our efforts to fight the AIDS epidemic and expand HIV programs nationwide.” (22) This summarises the Bill’s possible influences on Uganda’s HIV & AIDS control and prevention programme. Uganda now shows a utilitarian and rigid state-powered machine trying to control this epidemic with laws that contradicts the country’s constitution and undermines citizen’s human rights.
The outright criticism of Uganda’s new HIV & AIDS Bill draws attention to the importance of realising all role players in every instance. The question that should be asked now is whether HIV & AIDS has reached or will ever reach such a point that civil law must be laid down in which human rights will be neglected until the threat has disappeared. Are such rash and negligent initiatives really an answer, or can HIV & AIDS be controlled by using approaches such as the ABC method, where communities are empowered to help themselves?
Joseph Amon may have one answer, at least for now: “It's important to have a law that protects the rights of people with regard to the HIV & AIDS epidemic, but the bill as drafted would only make it harder to prevent and treat HIV and would put Uganda's HIV policies and response far outside of global norms.” (23) Only time will tell, as human rights and AIDS activists around the world wait with bated breath for the ramifications of a Bill which can unarguably be described as outdated and ill-informed.
(1) Zanie le Grange is an External Consultant in the HIV & AIDS Unit at Consultancy Africa Intelligence.