Note: This is an updated version of an analysis completed in November 2009. This April 2010 version reflects some amendments to the bill.
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 March 2010 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, charged with a sexual offense, or convicted of an offense involving prostitution, "be subjected to HIV testing for purposes of criminal proceedings and investigations."
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 is concerned that the proposed law contains insufficient protections relating to the testing of children. The bill states that the parent, guardian, or caretaker of a minor, defined as a child below the age of 12 years, can provide informed consent to testing on his or her behalf, and that HIV test results may be disclosed to the minor's parent or guardian. We are concerned, however, that the bill does not specify how children can access HIV testing, and thereafter treatment, care, and support. If this omission is not addressed, children who do not live with parents or guardians will be exposed to violations of their rights to health, access to information, and non-discrimination. The proposed law should state that children above the age of 12 years are permitted to consent to an HIV test without parental consent if they are mature enough to understand the consequences of such a decision. This provision may be of particular importance for girls who have been sexually assaulted and who will need to undergo an HIV test prior to commencing HIV post-exposure prophylaxis. In such instances, and in the case of girls under the age of 12, it is important that appropriate additional counseling and support be provided.
- 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 section 21 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 bill 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 section, 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 specific and clearly limited exceptions to confidentiality.
Human Rights Watch recognizes that there may be exceptional circumstances in which criminal prosecution is appropriate, for example in cases of willful, intentional, HIV transmission; however, existing provisions in the Ugandan penal code are sufficient to address such situations. Furthermore, no evidence exists to suggest that criminal statues are effective in preventing HIV transmission, and 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. In addition, laws that criminalize HIV transmission frequently disparately target women, who, as a result of pregnancy-related medical care, form the majority of those who know their HIV status and may be unable to safely disclose their sero-status.
Laws criminalizing HIV transmission are also contrary to international guidelines on HIV/AIDS and human rights. UNAIDS recommends that governments limit criminalization "to cases of intentional transmission, i.e. where a person knows his or her HIV positive status, acts with the intention to transmit HIV, and does in fact transmit it." Even in these circumstances there are practical limitations to such laws: It is difficult, if not impossible, to establish in court who between two partners was infected first. The current provision criminalizing attempted transmission poses further problems: It does not define or limit this offense, which means that actual transmission of HIV is not necessary to be convicted of the crime. This further opens the door for arbitrary, abusive prosecutions.
- Human Rights Watch recommends deleting provisions in the bill on the criminalization of transmission.
Although Human Rights Watch welcomes the commitment to human rights protection expressed in sections on 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 wrongful disclosure of status. The current draft criminalizes "breaches [of] medical confidentiality" which can result in 10 years of imprisonment and/or a fine of 4,800,000 Uganda shillings (US$2,400). It is inappropriate to criminalize all conduct that could potentially be labeled as breaches of confidentiality. Civil remedies are a more appropriate form of redress in such cases.
The bill also criminalizes any willful breach of "any provision relating to safe procedures and practices." It is unclear what constitutes "safe procedures and practices," as the terms are 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.
The bill has an overly vague catch-all provision imposing a "general penalty" on any conduct that "contravenes the provisions of this Act, where no specific punishment is prescribed." The penalty in such a case is up to 10 years of imprisonment and/or a fine of no more than 4,800,000 Uganda shillings (US$2,400). Under the draft law, a parent or guardian who fails to tell a minor of his or her HIV-positive status "as soon as it is practical" commits a punishable crime, though this time period is never defined. A person who fails to "take reasonable steps and precaution to protect him or her herself and others from HIV infection," though such "reasonable steps and precaution" are never defined, likewise commits a punishable crime through the operation of the general penalty clause. Such a provision is overly broad and violates the fundamental rights of individuals to make choices concerning their own health.
- 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, sec. 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 testing for purposes of criminal proceedings and investigations where (a) a person is convicted of drug abuse or possession of hypodermic instrument associated with drug abuse; (b) a person is charged with a sexual offence; (c) a person is convicted of an offence involving lewdness" HIV and AIDS Prevention and Control Bill, 2009, sec. 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, sec. 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, sec. 12.
 Ibid., sec. 11.
 Ibid., sec. 2.
 "A person incapable of giving informed consent under sec. 10 may be tested for HIV, if his or her parent, guardian, next of kin, caretaker or agent gives informed consent." Ibid., sec. 11(1).
 Ibid., sec. 19.
 The only exception is "a child who is born to an HIV positive mother," who "shall be tested for HIV as soon as it is medically practical" and "shall be given immediate appropriate treatment, care and support and routine medication." Ibid., sec.s 16(3) and 17. The text of the provisions does not indicate who will provide said treatment, care, support, or medication.
 "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., sec. 21(1)(f).
 "A medical practitioner or other qualified officer who carries out an HIV test may notify the sexual partner 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., sec. 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, sec. 21.
 "Any person who willfully and intentionally transmits HIV to another person commits an offence, and on conviction shall be liable a fine of not more than two hundred and forty currency points or to imprisonment for a term of not more than ten years or both." Ibid., sec. 41(1).
 "A person who attempts to transmit HIV to another person commits a felony and shall on conviction be liable to a fine of not more than twelve currency points or imprisonment of not more than five years or both." Ibid., sec. 39.
 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.
 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).
 UNAIDS/UNDP, "UNAIDS policy brief: Criminalization of HIV transmission," August 2008, http://data.unaids.org/pub/basedocument/2008/20080731_jc1513_policy_crim... (accessed April 22, 2010).
See Scott Burris, et al., "Do Criminal Laws Influence HIV Risk Behavior? An Empirical Trial," Arizona State Law Journal, vol. 39, 2007, p. 467.
 "Any health practitioner or any person referred to under section 17 and 18 who (a) breaches medical confidentiality; or (b) unlawfully discloses information regarding the HIV status of any person commits an offence, and on conviction shall be liable to a fine of not more than two hundred and forty currency points or to imprisonment for a term of not more than ten years or to both." HIV and AIDS Prevention and Control Bill, sec. 40.
 HIV and AIDS Prevention and Control Bill, 2009, section 42.
 Ibid., sec. 43.
 Ibid., sec. 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.
 HIV and AIDS Prevention and Control Bill, 2009, sec. 45.
 Ibid., sec. 19.
 Ibid., sec. 3.
 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 provision could be wrongfully used to prosecute individuals who wish to abstain from participating in certain experimental treatment or therapies. 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.