Remove Discriminatory Measures From New Bill
May 19, 2010

(Kampala) - Uganda's parliament should amend a proposed law on HIV/AIDS to remove punitive and discriminatory provisions and to ensure that the rights of people living with HIV/AIDS are protected, Human Rights Watch said today, after the controversial bill was introduced.

The 2010 HIV/AIDS Prevention and Control Act was introduced on May 19, 2010, by the Honorable Beatrice Rwakimari, chairperson of the Committee on HIV/AIDS and Related Matters, following months of debate about provisions that mandate HIV testing, force disclosure of HIV status, and criminalize behavior that might result in transmission among those who know they are HIV-positive. HIV prevalence has increased in Uganda in recent years, with over a million people living with HIV and more than 100,000 newly infected each year. It is estimated that 80 percent of those living with HIV in Uganda are unaware of their HIV status.

"The bill contains measures that have been proven ineffective against the AIDS epidemic and that violate the rights of people living with HIV," said Joe Amon, Health and Human Rights director at Human Rights Watch. "The HIV epidemic in Uganda is getting worse, and this bill is another example of misguided, ideological approaches and lack of leadership."

The bill as currently written codifies discredited approaches to the AIDS epidemic and contains dangerously vague criminal provisions. Contrary to international best practices, the bill would criminalize HIV transmission and behavior that might result in transmission by those who know their HIV status.

The bill would discourage voluntary HIV testing, while making testing mandatory for pregnant women, their partners, suspected perpetrators and victims of sexual offenses, drug users, and prostitutes, in violation of fundamental principles of consent. The bill also allows medical practitioners to disclose a patient's HIV status to others, breaching confidentiality standards. These provisions could potentially endanger those who are infected by exposing them to stigma, discrimination, and physical violence.

Human Rights Watch and 50 Ugandan and international organizations commented on an earlier draft of the bill and released a 10-page analysis of it in November 2009. UNAIDS also released a 23-page critique of the bill, and a coalition of Ugandan civil society groups published a joint position statement that criticized many provisions of the draft bill. Since then, the law was partially improved by removal of criminal penalty for the transmission of HIV from mother to child through breastfeeding. Reflecting these changes, Human Rights Watch released an updated analysis of the bill this month.

Uganda's government has recently received international criticism for a proposed "anti-homosexuality" law mandating the death penalty for individuals living with HIV who engage in homosexual sex, regardless of the use of HIV prevention, and including a requirement that individuals report suspected homosexuals to the government within 24 hours.

"Like the anti-homosexuality bill, the HIV/AIDS bill tramples on rights and encourages stigma and intolerance," Amon said. "The international community and Ugandan civil society have been vocal and clear about the problems in the bill. It is time for Uganda's parliament to listen and amend these damaging provisions."

One consequence of the law would be to require all HIV testing programs in the country to amend their pre-test counseling to inform individuals of the law and its potential consequences, Human Rights Watch said. Those being tested would need to understand that the consequences of a positive test result could include disclosure of their HIV status without their consent by medical personnel and criminal liability for failure to adopt HIV prevention measures. International research projects in Uganda that conduct HIV testing may also have to modify and resubmit their protocols to ethical review boards, Human Rights Watch said.

International guidelines issued by UNAIDS, the UN Development Program, and the World Health Organization oppose criminalization of transmission because it deters people from getting tested and stigmatizes people with HIV. In contrast to the Ugandan bill, a pending East African model law on HIV/AIDS provides broad protections for people living with HIV and does not include provisions for criminalization of transmission.

Mandatory testing undermines the rights of women and girls to security of their person, does not meet the consent requirement set out in medical ethics and international human rights law, and is discriminatory. Under the provisions of the bill, for example, if a woman tested positive, she could be liable for prosecution unless she abstained from sex with her husband or partner or was able to ensure that any partner used a condom. Combined with the bill's grant of discretion to medical practitioners to disclose an individual's status to other parties, the law exposes women in particular to intimate partner violence and abandonment.

The bill also would criminalize a wide and ill-defined range of conduct, such as breach of safe practice, obstruction, and making misleading statements. A vague catch-all "general penalty" clause in the bill would allow for criminal prosecution resulting in up to 10 years imprisonment for contravening any provisions in the bill.

"For Uganda to address its HIV epidemic effectively, it needs to partner with people living with HIV, not blame them, criminalize them, and exclude them from policy making," Amon said. "Recognizing that rights-based approaches are critical, and that people living with HIV will prevent transmission if they are empowered and supported, would allow Uganda's HIV response to get back on track."