FRIDAY FILE: The HIV and AIDS Prevention and Control Bill, which criminalizes the transmission of HIV and AIDS in cases where a person is aware that they are HIV positive, was tabled in Uganda’s Parliament in 2010. The Bill has a number of adverse human and women’s rights implications.
By Kathambi Kinoti
Uganda is a landlocked country in East Africa with a population of 34.6 million[i], of whom 1.2 million (6.4%) are living with HIV and AIDS. More women are infected and affected by HIV and AIDS than men, and at younger ages, accounting for about 57% of all adults living with HIV and AIDS[ii]. Uganda was one of the first countries to adopt an aggressive approach to tackling the pandemic when it emerged in the 1980s and 90s, and HIV prevalence fell from 15% in 1991 to 5% in 2001. But prevalence is now rising due to a convergence of a number of factors, including possible complacence after the advent of anti-retroviral drugs (ARVs). The United States is a major funder of anti-HIV and AIDS programmes in Uganda, and from 2003, in order to continue to receive funding, the government had to place increased emphasis on abstinence-only policies
AWID spoke with Lillian Mworeko, the Regional Coordinator of the International Community of Women Living with HIV/AIDS East Africa, about the human and women’s rights implications of the proposed HIV and AIDS Prevention and Control Bill.
AWID: What ostensible reasons has the government given for introducing the Bill? Are there many cases where people have ‘knowingly/wilfully’ transmitted HIV?
LM: According to the pushers of this Bill it is meant to “reduce the transmission of HIV, provide HIV testing and counselling services, create government obligations towards HIV management, make provisions for the protection of the rights of persons living with HIV, and create offences for intentional transmission of HIV.”
LM: At the beginning, there was strong political will. The president showed interest in fighting HIV and AIDS and this encouraged other political leaders to rally behind him. This led to the employment of a multi-sectoral approach which brought everybody on board including faith based organizations, civil society organizations, people living with HIV and AIDS (PLWHA) and communities.
At that time there were fewer resources available to address the pandemic, but there was a spirit of voluntarism and self sacrifice by all stakeholders. The limited resources available were utilized to address the needs and priorities.
Today, there is less political will. Approaches to tackling the pandemic have been commercialized and programmes do not adequately address its driving factors. Although HIV and AIDS is feminized, little programming and funding goes to issues like sexual and reproductive health or domestic and other gender based violence. Little funding goes to groups of women living with HIV and AIDS.
Funding and programming is not evidence based. We have long known that prevention of mother to child transmission (PMTCT) methods can tremendously reduce transmission rates. However, in Uganda about 50% of pregnant women living with HIV cannot access PMTCT services and so we continue having about 20%[iv] new infections in babies. We also know that treatment contributes greatly to prevention and yet we have more than 500,000 people in need of ARVs not able to access treatment. We know that abstinence does not work for the majority of women in Uganda where poverty is so high, women have little say in their homes and there is rampant domestic violence. Yet a lot of resources are invested in this strategy instead of focussing on what works.
AWID: What are the human and women's rights implications of the HIV and AIDS Prevention and Control Bill?
LM: The requirement for mandatory disclosure of HIV status undermines HIV and AIDS prevention efforts and creates a disincentive to test. It promotes stigma against PLWHA and places the burden of disclosure on them while exonerating those who do not know their HIV status, since a person who knows their HIV status can be penalized for sexual relations with another person. Personal health should be the responsibility of every individual and this should be the focus of prevention and treatment efforts.
During antenatal care, HIV testing is routine and as a result women often know their status before their partners do. The Bill proposes that when one learns their status, they should disclose it to their partner or the medical officer will do so. If women do not disclose their status as soon they return from the antenatal clinic, their partner may seek information from the health practitioner. The result is that partners and communities blame women for acquiring HIV. Mandatory testing of pregnant women is unnecessary; the same public health goals can be achieved through testing with informed consent.
There is evidence that emphasizing voluntary disclosure, combined with in-depth counselling and assured confidentiality of test results achieves good results without violating privacy rights. The Bill is likely to destroy doctor-patient trust, which is key to managing the spread of HIV and AIDS, and fewer people are likely to seek treatment in licensed medical centres.
Mandatory testing provisions will further marginalize injecting drug users and sex workers. Effective counselling, consent, confidentiality, as well as increased access to treatment is the best way to reach these groups.
The Bill seeks to prevent discrimination against PLWHA but is silent on discrimination in the home and the community, which are major sites for discrimination against PLWHA in Uganda.
HIV and AIDS threatens the rights to life and health, yet the Bill uses equivocal language (such as “devise practical measures” or “within available resources”) with regards to the obligations of the State. It is silent on a very important element of HIV prevention and control: public awareness. The right to information would require that people are provided with knowledge that enables them to take personal responsibility for their health.
Experience from elsewhere in Africa has shown that criminalizing the transmission of HIV by people who know that they are HIV positive does not reduce the spread of HIV, but rather undermines HIV and AIDS prevention efforts. It discourages testing as ignorance of one’s status is the best defence to a criminal charge. In fact, in jurisdictions with HIV-specific criminal laws, HIV testing counsellors are often obliged to caution people that getting an HIV test will expose them to criminal liability if they find out they are HIV-positive and continue having sex without informing their partner of their HIV status. These counsellors are sometimes forced to provide evidence of a person’s HIV status in a criminal trial. This interferes with the delivery of health care and frustrates efforts to encourage people to come forward for testing.
The inclusion of a provision relating to attempted transmission of HIV introduces further complexities. It fails to take into account the unique circumstances of discordant couples, as well as of HIV positive mothers and pregnant women. An HIV positive woman who seeks to have a baby would be liable to conviction under this provision for “attempting” to transmit HIV to her child if she chose to breastfeed her baby. She may make the decision to breastfeed, not with the intention to transmit the virus, but out of fear of the social stigma attached to failure or refusal to breastfeed one’s child and/or with knowledge of the well-known nutritional benefits of breast milk for babies. Her choice to do so may also be due to lack of alternatives given the high levels of poverty particularly in post-conflict Northern Uganda and the North Eastern Teso region.
Criminalizing HIV transmission can only be justified in the very rare cases when individuals transmit HIV with the intent to harm others. This should be addressed by existing criminal laws such as those relating to murder and assault.
AWID: How are women's rights organizations mobilizing to lobby against the Bill and what are the chances of success?
LM: A year ago we formed a coalition of civil society organizations to educate MPs and the public on the Bill and its implications. It was clear that most MPs had no idea of its negative implications.
We have created partnerships with different stakeholders including the media. We won the first round of this struggle by widening knowledge on the bill. Due to sustained pressure, Parliament had to carry out consultative meetings and the Bill was not tabled for debate during the last parliamentary session. We are now looking for an entry point with the new Parliament.
Advocacy is often a long, seemingly unending journey but we know that with our persistence several MPs have been sensitized and will debate the Bill from an informed position.
Share your thoughts/ideas with us:
Do you think that laws can be used as tools to prevent the spread of HIV? Or are other approaches more effective?
[i] http://www.indexmundi.com/uganda/population.html
[ii] http://www.avert.org/aids-uganda.htm
[iii] Ibid.
[iv] "Uganda HIV Prevention Response and Modes of Transmission Analysis, March 2009