Proposed Law Impedes Effective HIV Response, Violates Rights
November 6, 2009
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.
Joseph Amon, health and human rights director at Human Rights Watch

(Kampala) - A proposed Ugandan law on HIV/AIDS promotes dangerous and discredited approaches to the AIDS epidemic and would violate human rights, a group of more than 50 Ugandan and international organizations and individuals said in a report released today. The HIV and AIDS Prevention and Control Bill could be taken up by Uganda's parliament shortly.

The report, a 10-page analysis of the bill, was released in Kampala, Uganda, and Geneva, Switzerland at a meeting on HIV treatment sponsored by the World Health Organization. The report criticizes repressive provisions in the legislation as contrary to the goal of universal access to HIV prevention, care, and treatment. The proposed law includes mandatory testing for HIV and forced disclosure of HIV status. It also criminalizes the willful transmission of HIV, the failure to "observe instructions on prevention and treatment," and misleading statements on preventing or controlling HIV.

"We know what works and what doesn't in fighting HIV," said Beatrice Were of the Uganda Network on Law, Ethics & HIV/AIDS. "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."

The report cites Uganda's success during the 1990's in addressing HIV. Rather than adopt punitive approaches, the government engaged civil society in prevention efforts and worked to reduce the stigma of the disease. Citing international standards and "best practices," the report says that mandatory testing and criminal penalties can be counterproductive, driving people away from testing and treatment.

The report also highlighted how laws that criminalize HIV transmission can result in disproportionate prosecution of women because more women are tested as part of pre- or ante-natal medical care and therefore know their HIV status. Women's inability to safely negotiate condom use or disclosure to partners who might have been the source of their infection is not recognized in the bill as defenses against criminal penalties. Women who transmit HIV to their infants after birth via breast milk would also be subject to criminal prosecution, the report says.

"Women and girls have been disproportionately affected by HIV/AIDS," said Joseph Amon, health and human rights director at Human Rights Watch. "My fear is that mandatory testing and disclosure will lead to prosecution and violence instead of treatment and care."

The bill also criminalizes a wide and ill-defined range of conduct, such as discrimination against people living with HIV/AIDS and breach of confidentiality. According to the report, many of these acts are better dealt with through civil liability. Criminalizing such a wide range of actions opens the door for the government to prosecute people in selective or abusive ways while adding to the huge backlog in Uganda's courts.

The report highlights other areas in which the bill lacks specificity or appropriate guidance, including provisions that waive consent to testing when it is "unreasonably withheld." The report also found that the bill contains insufficient protections relating to the testing of children and their subsequent treatment, care, and support.

Further, the bill would mandate compulsory testing for drug users and sex workers, two already marginalized and criminalized groups. The report expresses concern that the proposed law, combined with other legislative efforts strengthening penalties related to homosexuality, is adding to a body of repressive criminal law in Uganda. These laws make it more difficult for civil society and non-governmental organizations to conduct effective programs with stigmatized communities.

"It's important to have a law that protects the rights of people with regard to the HIV/AIDS epidemic," Amon said. "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."

In early November, a slightly updated version of the bill was made available for public comment. The most troubling aspects, including the lack of consent in testing, third party disclosure by medical practitioners, and criminalization of transmission have not changed. The modifications to the bill are in some instances harmful, in others beneficial.

The bill introduces additional, troubling provisions:

  • Attempted transmission of HIV is now criminalized. This further opens the door for abusive prosecutions.
  • Government responsibility to take steps necessary to ensure access to essential medicines at affordable prices by persons with HIV/AIDS has been deleted.

Some changes to the bill improve the potential for human rights protections, such as:

  • Failure to inform one's sexual partners of HIV status is no longer criminalized, and discriminatory acts are now subject to civil, rather than criminal, liability.
  • Failure to take reasonable steps and precautions to protect oneself from HIV transmission is no longer criminalized.
  • Children born to HIV-positive women are guaranteed immediate appropriate treatment, care, support, and routine medication.

Endorsing Organizations and Individuals are:

1. ActionAid International Uganda
Uganda
2. African Services Committee
United States
3. AIDS and Rights Alliance for Southern Africa
Namibia
4. Akina Mama Wa Afrika (AMwA)
Kampala, Uganda
5. Andrey Rylkov Foundation for Health and Social Justice
Russia
6. ATHENA Network
Global
7. BAOBAB for Women's Human Rights
Nigeria
8. The Canadian HIV/AIDS Legal Network
Canada
9. Canadian Treatment Action Council
Canada
10. Caribbean Vulnerable Communities Coalition
Jamaica
11. Center for Health Policy and Innovation
South Africa
12. Center for Reproductive Rights
United States
13. Center for the Right to Health
Nigeria
14. Children's Hope Initiative
Kampala, Uganda
15. Community HIV/AIDS Mobilization Project
United States
16. Foundation for Integrative AIDS Research
United States
17. Fundación para Estudio a Investigación de la Mujer
[Foundation for Studies and Research on Women]
Argentina
18. Global AIDS Alliance
United States
19. The Global Forum on MSM & HIV
United States
20. Global Coalition of Women against AIDS in Uganda
Uganda
21. Health GAP
United States
22. International AIDS Women's Caucus
Global
23. International Community of Women Living with HIV and AIDS
Global
24. International Community of Women Living with HIV & AIDS-Eastern Africa Region
Uganda
25. Lembaga Bantuan Hukum Masyarakat [Community Legal Aid Institute]
Indonesia
26. Mama's Club
United States
27. National AIDS Housing Coalition - Facilitator of the International AIDS Housing Roundtable
United States
28. National Coalition of Women with AIDS in Uganda (NACOA)
Uganda
29. National Community of Women living with HIV/AIDS in Uganda (NACWOLA)
Uganda
30. National Empowerment Network of PLHAs in Kenya (NEPHAK)
Nairobi, Kenya
31. National Forum of People Living with HIV/AIDS Networks in Uganda
Uganda
32. National Guidance and Empowerment Network of People with HIV and AIDS
Uganda
33. Physicians for Human Rights
United States
34. Positive Malaysian Treatment Access & Advocacy Group
Malaysia
35. Positive Women Incorporated
New Zealand
36. Positive Women Leaders of Uganda (POWL)
Uganda
37. Prevenir es Cuidar [Prevention is Care]
Argentina
38. Rubaga Exchange on AIDS and Livelihood Support Group
Uganda
39. Sampada Grameen Mahila Sanstha (SANGRAM)
India
40. Social Justice Advocacy Initiative
Nigeria
41. Support on AIDS & Life thru Telephone Helpline (SALT)
Uganda
42. Tanzania Women Living with HIV/AIDS (Tawoliha)
Tanzania
43. Uganda Network of AIDS Service Organisation (UNASO)
Uganda
44. Uganda Young Positives
Uganda
45. United Belize Advocacy Movement
Belize
46. UGANET
Uganda

Individuals:

    47. Alana Klein
    Assistant Professor, McGill University
    Canada
    48. Amanda Lugg
    United States
    49. Moses Mulumba, LLB
    Health and Human Rights Advisor
    Coalition for Health promotion and Social Development
    Uganda
    50. Maria Rakgowa
    Botswana
    51. Mindy Roseman
    Lecturer on Law, Harvard Law School
    United States
    52. Meena Saraswathi Seshu
    India
    53. Busingye Kabumba
    Lecturer, Faculty of Law
    Makerere University
    Uganda
    54. Alessandra Nilo
    Gestos – HIV+, Comunicação e Gênero
    LACCASO, Secretária Regional
    Health if not for Profit Campaign
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