1. HIV Testing
Insufficient Protections Relating to Testing of Children
2. Mandatory Notification and Disclosure
3. Criminalization of Transmission
4. Criminalization of Discrimination, Breach of Confidentiality, Failure to Observe Instructions on Prevention and Treatment, Breaching Safe Practice, Obstruction, and Making Misleading Statements
Uganda has long received praise for its successful handling of the HIV/AIDS pandemic in the 1990s, when it engaged civil society in its prevention efforts and worked to reduce the stigma of the disease. Prevalence rates declined as a result of government policies that promoted the empowerment of civil society, frank discussions of HIV transmission, pragmatic emphasis on comprehensive HIV prevention strategies, and improved access to treatment. However, after sharp declines, recent evidence suggests that HIV incidence and prevalence have increased in Uganda. The HIV/AIDS Prevention and Control Bill, if enacted, would threaten to worsen this trend and undermine the progress that Uganda made in the past decade in responding effectively to the epidemic. Rather, the development of a new HIV law presents an opportunity to strengthen the framework for effective responses to HIV/AIDS.
The stated goal of the HIV bill currently under discussion is "to provide for the prevention and control of HIV and AIDS, protection, counseling, testing, care of persons infected with and affected by HIV and AIDS, rights and obligations of persons infected and affected and for other related matters." But the draft obtained by Human Rights Watch in October 2009 contains numerous provisions that contravene the right to equal protection and non-discrimination under Uganda's constitution and Uganda's obligations under international human rights law. Furthermore, these provisions will ultimately prove counterproductive to reducing the burden of the HIV epidemic in the country.
We raise specific concerns regarding:
- HIV testing and counseling, generally and among minors
- Notification and disclosure obligations
- Criminalization of HIV transmission
- Criminalization of other conduct related to HIV/AIDS
The HIV bill mandates routine testing for pregnant women and their partners and victims of sexual offenses. It states that such individuals "shall be subjected" to routine testing. The draft law makes no mention of informed consent-either "opt-in," or presumed consent based upon "opt-out" provisions. The absence of specific mention of consent suggests that testing will actually be implemented as mandatory. The HIV bill also contains provisions requiring that a person convicted of drug use or possession of a hypodermic needle, or convicted for prostitution or lewdness, "shall be subjected to [an] HIV test for purposes of criminal investigation."
Internationally, the conditions of the "3Cs" (confidential, counseling, and consent)-advocated since the HIV test became available in 1985-continue to be underlying principles for the conduct of HIV testing for individuals. Such testing of individuals must be:
- accompanied by counseling
- conducted only with informed consent, meaning that it is both informed and voluntary.
Mandatory HIV testing violates fundamental rights to the security of the person and the highest attainable standard of physical and mental health protected by international treaties to which Uganda is a party. International guidance, including by the World Health Organization (WHO) and the Joint United Nations Programme on HIV/AIDS (UNAIDS), has explicitly rejected all forms of mandatory and compulsory HIV testing, and made plain that HIV testing should be voluntary.
We are further concerned that draft mandatory testing provisions will threaten the health of those tested, without actually protecting the health of third parties, which we understand to be the rationale of such testing. Mandatory testing of pregnant women, for example, undermines the rights of women and girls to the security of person, fails to meet the requirement of consent set out in medical ethics and international human rights law, and violates guarantees of non-discrimination set out in various international and regional conventions. Mandatory testing also potentially exposes women to the risk of intimate partner violence and abandonment by male partners, especially when disclosure to sexual partners is mandatory.
Mandatory testing of victims of sexual crimes threatens victims' rights and may inadvertently harm them further, as it can call into question the source of their infection and their past sexual activity. Mandatory testing of marginalized and criminalized groups, such as drug users and sex workers, will make health systems appear to be places of prejudice and discrimination, rather than of treatment and care. Mandatory testing increases the stigma of such groups and creates major barriers to HIVtreatment.
Mandatory testing of persons charged with sexual offenses could actually undermine a rape survivor's ability to make informed decisions about their health by providing misinformation about the alleged offender's HIV status. A negative test, for example, does not conclusively establish that the person who committed the assault does not have HIV. Some alleged offenders might be tested during the "window period," when an HIV test does not detect infection because HIV antibodies are not yet present. A negative test could also be misleading if an alleged offender is not the actual perpetrator of the assault.
In either case, a survivor might be inclined not to obtain HIV post-exposure prophylaxis (PEP) because of a false negative HIV test of the accused. Many alleged offenders are not apprehended within the time period during which PEP needs to be initiated to be effective, which would make the information about HIV status irrelevant in preventing the infection of the victim. Mandatory testing of criminal suspects has no appropriate forensic purpose.
The draft law provides that consent is not necessary for testing when it is "unreasonably withheld" or "in an emergency due to grave medical or psychiatric condition and the medical practitioner reasonably believes that such a test is clinically necessary or desirable in the interest of that person." Human Rights Watch is concerned that this provision is overly broad, and it risks unjustifiably infringing upon privacy rights. HIV infection is not a health emergency, nor does emergency treatment currently exist. Thus, there is no need for HIV testing to occur on an emergency basis. Provision for diagnostic HIV testing in circumstances where an individual is unable to give consent is made elsewhere in the bill.
- Human Rights Watch recommends that provisions for mandatory and routine testing be struck from the text of the bill and that provisions on testing specifically require confidentiality, counseling, and consent.
- Human Rights Watch recommends that the bill specify how children, mature enough to understand the consequences, can access testing, treatment, and support.
The bill recognizes and supports the right to medical confidentiality of people living with HIV and AIDS, an approach that is consistent with international norms and standards. Human Rights Watch is concerned, however, that several exceptions to confidentiality outlined in clause 21, as well as provisions mandating disclosure of HIV status to sexual partners, are overly broad and might violate the privacy and confidentiality rights of people living with HIV. The bill might also may be interpreted in a manner that could put people living with HIV and AIDS at risk of discrimination, violence, and other abuses in violation of their human rights.
The draft law requires that persons who are aware of their HIV-positive status inform their sexual partners that they are HIV-positive, and punishes failure to do so by a fine or imprisonment.
The bill also permits disclosure of HIV status without consent in several circumstances. These include, first, when, "in the opinion of the medical practitioner, [the HIV-positive person] poses a clear and present danger" to a person with whom he or she is "in close and continuous contact including but not limited to a sexual partner;" and second, when a medical practitioner or other qualified officer who carried out an HIV test "reasonably believes" that the HIV-positive person poses a risk of HIV transmission to the partner, and has been given "reasonable opportunity" to inform their partners of their HIV-positive status, but has failed to do so.
Such a provision permitting disclosure of HIV status without consent contravenes international human rights standards, which require states to ensure the confidentiality of medical information, meaning that a person's medical condition may not be arbitrarily disclosed to third persons without the specific consent of the individual concerned. The International Covenant on Civil and Political Rights (ICCPR) guarantees individuals a right to privacy. The Committee on Economic, Social and Cultural Rights has stated that health facilities must uphold patients' confidentiality in health matters. The International Guidelines on HIV/AIDS and Human Rights recommend voluntary partner notification and set a narrow set of circumstances under which health care provider disclosure is permissible. Forced disclosure to male sexual partners could expose women to violence and other abuses. Forced disclosure could also deter individuals from getting tested. The bill fails to specify which officers are qualified to make these disclosures. Human Rights Watch is concerned about what procedures or safeguards will be put in place to prevent unlawful disclosure. The provision also fails to define "reasonable opportunity," a term that grants overly broad discretion to medical practitioners and "other qualified officers."
The bill provides that there may be exceptions to confidentiality if "any other person with whom an HIV infected person is in close and continuous contact including but not limited to a sexual partner, if the nature of contact, in the opinion of the medical practitioner, poses a clear and present danger of HIV transmission to that person." This text, as currently drafted, allows medical practitioners to disclose a patient's status to not only sexual partners, but also to an ill-defined class of others. We urge the deletion of this clause, as disclosure to third parties is a violation of privacy and confidentiality rights of people living with HIV.
Government policy should encourage couples-based counseling and voluntary testing.
- Human Rights Watch recommends deleting references in the bill to mandated compulsory disclosure.
The bill criminalizes the intentional transmission of HIV to another person. Human Rights Watch recognizes the potential role of prohibitions on harmful practices that intentionally expose individuals to the risk of HIV infection, but such statutes are unnecessarily duplicative of existing provisions in the Ugandan penal code and are contrary to international guidelines on HIV/AIDS and human rights. Because the transmission must be willful and intentional-making ignorance of one's status an effective defense for the required state of mind-the criminalization of transmission can act as a deterrent for individuals to seek testing. It is difficult, if not impossible, to establish in court who between two partners was infected first or who caused transmission, limiting the feasibility of prosecution.
Further, such statutes may deflect attention from measures that are more urgently needed to combat the epidemic: effective prevention, protection against discrimination, reduced stigma, greater access to testing, and treatment. Such laws demonize individuals who have HIV, exacerbating existing stigma around the illness. They also frequently disparately criminalize women, who, as a result of pregnancy-related medical care, form the majority of those who know their HIV status, thus exposing them to the risk of criminal prosecution.
Further, the exemption of criminal liability for mother-to-child transmission, as currently written, applies to transmission of the virus before or during the birth of the child. If there is any reference to criminalization in the final bill, exemption needs also to include the time period after birth.
- Human Rights Watch recommends deleting provisions in the bill on the criminalization of transmission.
4. Criminalization of Discrimination, Breach of Confidentiality, Failure to Observe Instructions on Prevention and Treatment, Breaching Safe Practice, Obstruction, and Making Misleading Statements
Although Human Rights Watch welcomes the commitment to human rights protection expressed in clauses on discrimination and breach of confidentiality in the bill, we have some concerns about the manner in which specific provisions are drafted and whether they will be effective in preventing discrimination against people living with HIV or wrongful disclosure of status. The current draft criminalizes "discriminatory acts and practices" against people living with HIV and "breaches [of] medical confidentiality" and imposes a lengthy prison term or a substantial fine for this conduct. It is inappropriate to criminalize all conduct that could potentially be labeled as discriminatory or as breaches of confidentiality. Civil remedies are a more appropriate form of redress in such cases.
The bill states that a person who is aware that he or she is HIV-positive and fails to "observe instructions on prevention and treatment" commits a criminal offense. Such a provision is overly broad and violates the fundamental rights of individuals to make choices concerning their own health. For example, under the wording of the draft law, a patient who forgets to take a dose of medication could be found criminally liable. The Human Rights Committee, the international expert body that monitors state compliance with the ICCPR, has said that protecting the physical and mental integrity of the individual includes protecting persons from participation in medical or scientific experiments without their free consent-the above provision could be wrongfully used to prosecute individuals who wish to abstain from participating in certain experimental treatment or therapies.
The bill also criminalizes any willful breach of "any provision relating to safe procedures." It is unclear what constitutes "safe procedures," as the term is undefined. The bill states that a person "who obstructs or prevents any activity related to implementation of this Act in any manner commits an offence." This provision is also overly broad. Finally, the bill criminalizes "misleading statements or information regarding curing, preventing or controlling HIV." While greater regulation of unsubstantiated claims of AIDS cures is needed, this provision, could also be used, for example, to prosecute scientists reporting about the AIDS vaccine trial publicized in September 2009, whose results some scientists have subsequently disputed. Other public assertions lacking wide scientific consensus, such as those by religious leaders and politicians suggesting that condoms are ineffective or that abstinence-only approaches to HIV prevention are of proven effectiveness, would also be criminalized under the existing text of the draft HIV bill, opening the possibility for the law to be applied in selective or abusive ways.
- Human Rights Watch recommends defining all of the above provisions on criminal acts specifically and clearly to protect fundamental human rights and avoid selective prosecutions.
 See Joseph Amon, "Preventing the Further Spread of HIV/AIDS: The Essential Role of Human Rights," Human Rights Watch World Report 2006 (New York: Human Right Watch, 2006), http://www.hrw.org/legacy/wr2k6/hivaids/index.htm.
 "All persons are equal before and under the law in all spheres of political, economic, social and cultural life and in every other respect and shall enjoy equal protection of the law . . . . [A] person shall not be discriminated against on the ground of sex, race, colour, ethnic origin, tribe, birth, creed or religion, social or economic standing, political opinion or disability." Uganda Constitution, sec. 21.
 "The following persons shall be subjected to routine HIV test for purposes of prevention of HIV transmission (a) the victim of a sexual offence; (b) a pregnant woman; (c) a partner of a pregnant woman." HIV and AIDS Prevention and Control Bill, 2009, clause 14. On file with Human Rights Watch.
 Mandatory testing, involving the coercive power of the state, leaves no choice to the individual about testing. Routine testing is offered to everyone who falls within a certain population. A "routine" offer of HIV testing can be referred to as "opt-in" testing if the person needs to give express consent before taking the test or as "opt-out" testing if the individual is not required to make an express statement of consent but simply retains the right to refuse the test. Lance Gable, Legal Aspects of HIV/AIDS: A Guide for Policy and Law Reform (Washington DC: The World Bank, 2007), pp. 3-4.
 "The following persons shall be subjected to HIV test for purposes of criminal investigation where (a) a person is convicted of drug abuse or possession of hypodermic instrument associated with drug abuse; (b) a person is charged with sexual offence; (c) a person is convicted of an offence involving lewdness prostitution [sic]; (d) a court orders so." HIV and AIDS Prevention and Control Bill, 2009, clause 13.
 UNAIDS/WHO, "UNAIDS/WHO Policy Statement on HIV Testing," June 2004, http://www.who.int/entity/hiv/pub/vct/en/hivtestingpolicy04.pdf (accessed October 27, 2009); see also Office of the United Nations High Commissioner for Human Rights and the Joint United Nations Programme on HIV/AIDS, HIV/AIDS and Human Rights International Guidelines (Geneva: UNAIDS, 1998), UN Doc. HR/PUB/98/1, para. 20(b).
 "Everyone has the right to liberty and security of the person." International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976, acceded to by Uganda on June 21, 2005, art. 9.
 "The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health." International Covenant on Economic, Social and Cultural Rights (ICESCR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3, entered into force January 3, 1976, acceded to by Uganda on January 21, 1987, art. 12. "Every individual shall have the right to enjoy the best attainable state of physical and mental health." The African Charter on Human and Peoples' Rights, adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force October 21, 1986, ratified by Uganda in 1986, art. 16(1).
 UNAIDS/WHO, "UNAIDS/WHO Policy Statement on HIV Testing," June 2004, http://www.who.int/entity/hiv/pub/vct/en/hivtestingpolicy04.pdf (accessed October 27, 2009); see also Office of the United Nations High Commissioner for Human Rights and the Joint United Nations Programme on HIV/AIDS, HIV/AIDS and Human Rights International Guidelines (Geneva: UNAIDS, 1998), U.N. Doc. HR/PUB/98/1, para. 20(b).
 ICCPR, art. 9.
 ICCPR, arts. 7, 17 (1); ICESCR art. 12; Beijing Declaration and Platform for Action, Fourth World Conference on Women, September 15, 1995, A/CONF.177/20 (1995), art. 108(e); ICESCR, General Comment No. 14; UN Committee on the Elimination of Discrimination against Women, General Recommendation No. 24, Women and Health, (20th session, 1999) paras. 22, 31(e); Committee on the Rights of the Child, "Adolescent Health and Development in the Context of the Convention on the Rights of the Child," General Comment No. 4, paras 29, 35 (b).
 The Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa, adopted by the second Ordinary Session of the Assembly of the Union, Maputo, September 13, 2000, CAB/LEG/66.6, entered into force November 25, 2005, signed by Uganda on December 18, 2003, art. 2 -3. Abuja Declaration on HIV/AIDS, Tuberculosis and Other Related Infectious Diseases, April 27, 2001, Abuja, Nigeria, OAU/SPS/ABUJA/3, art. 7, 12. Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), adopted December 18, 1979, G.A. res. 34/180, 34 U.N. GAOR Supp. (No. 46) at 193, U.N. Doc. A/34/46, entered into force September 3, 1981, ratified by Uganda on July 22, 1985, art. 12.
 HIV and AIDS Prevention and Control Bill, 2009, clause 23. See generally, e.g., Human Rights Watch, Just Die Quietly: Domestic Violence and Women's Vulnerability to HIV in Uganda, vol. 15, no. 15(A), August 2003, http://www.hrw.org/en/reports/2003/08/12/just-die-quietly-0; Human Rights Watch, Hidden in the Mealie Meal: Gender-Based Abuses and Women's HIV Treatment in Zambia, vol. 19, no. 18(A), December 2007, http://www.hrw.org/en/reports/2007/12/17/hidden-mealie-meal.
 HIV and AIDS Prevention and Control Bill, 2009, clause 12.
 Ibid., clause 11.
 Ibid., clause 2.
 "A person incapable of giving informed consent may be tested for HIV and the test results may be identified with that person, if his or her parent, guardian, caretaker or agent gives informed consent after discussion of the implications of the test with a medical practitioner or other qualified officer during pre-test counseling." Ibid., clause 11(1).
 Ibid., clause 19.
 "A person who fails or refuses to take reasonable steps and precaution to protect him or herself and others from HIV transmissions as provided under subsection (3) commits an offence." Ibid., clause 3(4).
 "Notwithstanding section 19 a person may disclose information concerning the result of an HIV test or related medical assessments of a person tested, under the following circumstances . . . (f) [to] any other person with whom an HIV infected person is in close and continuous contact including but not limited to a sexual partner, if the nature of contact, in the opinion of the medial [sic] practitioner, poses a clear and present danger of HIV transmission to that person." Ibid., clause 21(2)(f) [sic] .
 "A medical practitioner or other qualified officer who carries out an HIV test may notify the sexual partner(s) of the person tested where he or she reasonably believes that the HIV positive person poses a risk of HIV transmission to the partner and the person has been given reasonable opportunity to inform their partner(s) of their HIV positive status and has failed to do so." Ibid., clause 23(1).
 Art. 17(1) of the ICCPR states, "No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation." In his authoritative CCPR Commentary, Manfred Nowak states that "regardless of its lawfulness, arbitrary interference contains elements of injustice, unpredictability and unreasonableness." Manfred Nowak, CCPR Commentary: U.N. Covenant on Civil and Political Rights (Kehl: N.P. Engel, 2nd ed. 2005), p. 383.
 The Committee on Economic, Social and Cultural Rights has stated in General Comment 14, para. 12(c), that "[a]ll health facilities, goods and services must be respectful of medical ethics and culturally appropriate, i.e. respectful of the culture of individuals, minorities, peoples and communities, sensitive to gender and life-cycle requirements, as well as being designed to respect confidentiality and improve the health status of those concerned."
 "(i) The HIV-positive person in question has been thoroughly counselled; (ii) Counselling of the HIV-positive person has failed to achieve appropriate behavioural changes; (iii) The HIV-positive person has refused to notify, or consent to the notification of his/her partner(s); (iv) A real risk of HIV transmission to the partner(s) exists; (v) The HIV-positive person is given reasonable advance notice; (vi) The identity of the HIV-positive person is concealed from the partner(s), if this is possible in practice; and (vii) Follow-up is provided to ensure support to those involved, as necessary." Office of the United Nations High Commissioner for Human Rights and the Joint United Nations Programme on HIV/AIDS, HIV/AIDS and Human Rights International Guidelines (Geneva: UNAIDS, 1998), U.N. Doc. HR/PUB/98/1, para. 3(g).
 HIV and AIDS Prevention and Control Bill, 2009, clause 21.
 "Any person who willfully and intentionally transmits HIV to another person commits an offence, and upon conviction shall be liable to life imprisonment." Ibid., clause 40(1).
 Penal Code Act (Cap. 120) of Uganda, adopted on June 15, 1950. The International Guidelines on HIV/AIDS and Human Rights recommend that "Criminal and/or public health legislation should not include specific offences against the deliberate and intentional transmission of HIV but rather should apply general criminal offences to these exceptional cases. Such application should ensure that the elements of foreseeability, intent, causality and consent are clearly and legally established to support a guilty verdict and harsher penalties." International Guidelines on HIV/AIDS and Human Rights, guideline 4. "There are no data indicating that the broad application of criminal law to HIV transmission will achieve either criminal justice or prevent HIV transmission. Rather, such application risks undermining public health and human rights." UNDP and UNAIDS, Criminalization of HIV Transmission, http://data.unaids.org/pub/BaseDocument/2008/20080731_jc1513_policy_criminalization_en.pdf.
 See Scott Burris, et al., "Do Criminal Laws Influence HIV Risk Behavior? An Empirical Trial," Arizona State Law Journal, vol. 39, 2007, p. 467.
 See Edwin Cameron, Scott Burris, and Michaela Clayton, "HIV is a Virus, Not a Crime: Ten Reasons Against Criminal Statutes and Criminal Prosecutions," Journal of the International AIDS Society, vol. 11 no. 7, 2008, http://www.jiasociety.org/content/11/1/7 (accessed October 28, 2009).
 There is no evidence that using the criminal law to respond to HIV is effective in protecting public health, and some evidence that it may in fact cause harm. See, e.g., Scott Burris, et al., "Do Criminal Laws Influence HIV Risk Behavior? An Empirical Trial," Arizona State Law Journal, vol. 39, 2007, p. 467.
 HIV and AIDS Prevention and Control Bill, 2009, clause 46.
 A person convicted under clause 39 for discriminatory acts faces imprisonment for up to five years or a fine of 400,000 Uganda shillings (US$200). A person convicted under clause 41 for breach of confidentiality faces at least six months of imprisonment and/or a fine of 1 million Uganda shillings (US$500).
 HIV and AIDS Prevention and Control Bill, 2009, clause 3.
 See Human Rights Committee, General Comment 20, Article 7 (Forty-fourth session, 1992), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.1 at 30 (1994), para. 7.
 HIV and AIDS Prevention and Control Bill, 2009, clause 42.
 Ibid., clause 43.
 Ibid., clause 44.
 Joseph Amon, "Dangerous Medicines: Unproven AIDS Cures and Counterfeit Antiretroviral Drugs," Globalization and Health, vol. 4, no. 5, http://www.globalizationandhealth.com/content/4/1/5 (accessed October 28, 2009).
 Donald G. McNeil, "Success of AIDS Vaccine Trial Is at Issue," New York Times, October 10, 2009, http://www.nytimes.com/2009/10/11/health/research/11hiv.html (reporting that two published accounts citing anonymous AIDS researchers who were given confidential briefings about the trial results indicate that the vaccine is not 31 percent effective but rather only 26 percent) (accessed October 13, 2009).
 See generally, John S. Santelli, "Medical Accuracy in Sexuality Education: Ideology and the Scientific Process," American Journal of Public Health, October 2008, pp. 1786-1792.