By Stephen Ssenkaaba & Vicky Wandawa
Parliament passed the HIV/ AIDS Prevention And Control Bill. It has been one of the most controversial national issues in the past few weeks.
The Bill, which, among other issues, seeks to create a legal framework for the prevention and control of HIV gave way to a series of mixed reactions, ranging from doubt and mistrust, to triumph and satisfaction. In all this, questions abound as to what the actual implications of the Bill that is awaiting presidential assent will be.
Premised on the absence of a comprehensive law to govern the management of HIV, this Bill sets out legal provisions on testing and counselling services, government obligations towards HIV management, protection of rights of persons living with HIV, and offences for wilful and intentional spread of HIV.
The law sets out penalties against discrimination of persons on grounds of their HIV status (clauses 31 to 38). It also provides for mandatory testing for spouses, bio-medical research on HIV and AIDS vaccines, medicines and the circumstances under which such research is to be carried out. Informed consent of the persons involved in these researches is also provided for.
There are several provisions on safe practice, confidentiality and even laboratory analysis. The Bill generally provides a useful framework for responsible action in the prevention and action against HIV and AIDS in this country.
But, as some observers have said, this is a Bill that gives with one arm and takes away with the other. For while it provides for protection of rights, provision of information and prevention of stigma, it also takes away some of these fundamental rights.
Clause 41 of the Bill puts a criminal tag on HIV/AIDS transmission. The clause provides that ‘any person who wilfully transmits HIV to another person commits an offence and shall be liable to a fine of not more than 240 currency points or imprisonment for not more than 10 years.’
Experts call this the criminalisation of HIV. Several observers and HIV activists fear that such a clause will cause stigma and scare people.
“People are going to live in fear of prosecution. This will affect access to testing, counselling and other crucial services,” says Dr. Stephen Watiti, the senior medical officer at Mildmay Hospital.
This view is shared by Prof. Vynand nantulya, the chairperson of Uganda AIDS Commission.
He says: “As more people go underground, more infections and deaths are likely to happen. This clause will also put a lot of tension on families.” That is what worries Jackline Alesi, a young HIV-positive mother of two who is married to an HIV-negative man.
“I fear that if, God forbid, my hubby got the virus from somewhere else, as his wife, I would be the prime suspect. I would be accused of having wilfully transmitted the virus to him, despite my innocence.”
Alesi says such scenarios will result in animosity and torture especially to her young children. This clause has even graver implications for expectant mothers, who usually find out their HIV status during antenatal visits.
“We get to know our statuses before our husbands,” says Flavia Kyomukama, a mother living with HIV. “Disclosure of a positive HIV status will lead to misunderstandings, rejection and, in extreme cases, disintegration of families and relationships. For women who depend on their husbands to survive, this will bring about suffering,” she says.
Even though seemingly innocuous, Lillian Mworeko, the regional coordinator of the International Community of Women Living with HIV in East Africa, says mandatory testing for pregnant women and their partners as stipulated in clause 14 (b) and (c) has detrimental effects.
First, because it is a violation of the accepted principles of informed consent; more importantly, it targets women and will, as a result, discourage many from accessing medical services.
“HIV testing of pregnant women, their partners and victims of sexual offences, must always be voluntary and conducted with informed consent,” she says.
The Bill presents various technical challenges which are likely to complicate effective implementation. For instance, where infection of one person by another is involved, questions remain how culpability will be determined in a country where facilities to determine which partner infected the other are not available.
Peter Gwayaka, a lawyer, says, it will be difficult to determine intention. “
Other than a clearly laid down intention such as getting HIV-positive blood and injecting it into someone, the other cases are difficult,” Gwayaka says.
“For example to know that someone has intentionally spread the diseases, you must have knowledge of the status of the two people (offender and victim) before the act takes place. By the time of the sex, the victim must be negative. And by the time you charge the person with intentional spread, the victim must be HIV-positive. Proving that there were no intervening factors, save for the acts of the accused, is a next to impossible,” he says.
Gwayaka adds that if not well handled, the crime of ‘intentional spread’ may kill the spirit of voluntary testing and any other forms of testing “simply because no one would wish to know his or her HIV status.
Knowing your status is a basis for which a crime of intentional spread will succeed. Lack of knowledge that you are HIV-positive will be a defence to the crime of intentional spread of HIV.”
The clause on attempted transmission will also be difficult to implement without any clear evidence on the circumstances under which the infection took place.
Why all this matters
Last year, Uganda achieved a tipping point, where the number of people on ARVs became more than the new infections expected in a year.
Experts say this is a tipping point where a country begins to reverse its HIV incidence. A good Bill, therefore, would be that which helps to step up vigilance and encourage more people to take HIV prevention, care and management more seriously.
According to Medard Ssegona, the Busiiro East MP, the Bill encourages more people to go and test for their own good and also compel two consenting adults to test before engaging in sexual intercourse. However, it also makes it safer for people not to know their status. That increases infections as more HIV-positive people go underground to avoid prosecution and stigma.
Ministry of health
Officials at the Ministry of Health are also divided.
Alex Ario, the national coordinator of the AIDS Control Programme (ACP), says the Bill does not add value to the current efforts to fight the scourge.
“Emphasis should instead be on lobbying the Government to allocate more money on HIV activities, rather than legislating against people with HIV.”
The minister of state for primary health care, Sarah Opendi, on the other hand, believes that all the fears about increased infections and abuse of women rights are misplaced because of the existence of functional programmes on prevention of mother-to-child transmission.
“I do not know why women activists are going around speculating that people will fear to go for tests, that the number of new infections will rise and that there will be increase in maternal deaths. We have a strong campaign to prevent mother-to-child transmission,” she says. “
Rather than keep mothers away from services, the Bill, when implemented, will ensure better protection and therefore, enable mothers deliver safely.”
In countries like Burundi, HIV transmission has already been criminalised. The same applies to Djibouti (2007), Kenya (2006), Madagascar (2005), Mozambique (2009) and Tanzania (2008).
In Sweden, a failure to comply with the HIV disclosure obligation, followed by unprotected sex, can result in charges of attempted aggravated assault and a prison sentence, even if the virus is not transmitted. Presidents in East Africa signed the HIV and AIDS Prevention and Management Bill, 2012 into law, except that this previous law did not criminalise transmission.
Nevertheless, the Bill is a potentially important law if only more work is done to harmonise the concerns of various stakeholders. This calls for concerted efforts and hard work to iron out the outstanding issues.
Uganda AIDS commission chairman speaks out
According to the Chairman, Uganda AIDS Commission, Prof. Vinand Nantulya, criminalising HIV is dangerous. He said to play safe, people will avoid taking HIV tests because the law criminises intention.
“You cannot be convicted for intentionally infecting another when you don’t know your status.
“Moreover, it will be impossible to demonstrate comprehensibly in court evidence to pin down the individual to a specific sexual act that gave rise to transmission of the infection,” he added.
“The evidence that the virus from the presumed victim is exactly identical to that from the accused can be a technical problem because the virus keeps changing.”
He, however, praises the AIDS Trust Fund which the Bill proposed, although he is worried about the fund being managed by the Ministry of Health.
“With due respect, this is a distortion of the concept and it will not work. We are going to see a mix-up of government budget allocations to the Ministry with the funds from the Trust Fund. Moreover, the Ministry is an implementing agency. It cannot also govern a Trust Fund,” he said.
He proposes that the fund be managed by the Uganda AIDS Commission, which is a coordinating agency and has established a mechanism for managing the donor and government funds used for support to the different sectors.
“This governing arrangement was approved by the Solicitor-General. This mechanism has high integrity and has generated the trust among key stakeholders that include government, civil society, organisations of people living with HIV, development partners and the private sector.”
He asked that the Bill be referred back to the committee for further consultation with the key stakeholders.
No more privacy?
Clauses 23 (1) and 21 (e) empower medical workers to disclose a person’s HIV status to a third party. 21 (e) states: ‘A person may disclose information concerning the result of an HIV test, where any other person with whom an HIV infected person is in close or continuous contact, including but not limited to a sexual partner, if the nature of contact, in the opinion of the sexual medical practitioner, poses a clear and present danger of HIV transmission to that person.’
This clause abuses the doctor-patient confidentiality, according to Dr. Margaret Mungherera, the president of the World Medical Association.
The clause also exposes a number of mothers to rejection and unfair criticism from their spouses, further laying a fertile ground for misunderstanding and domestic violence in families.
Such stigma, observes Lilian Mworeko, the regional coordinator of the International Community of Women Living with HIV and AIDS East Africa, will deter many people, particularly women from accessing crucial lifesaving services.
“As a result, people will shy away from accessing prevention, treatment, care and support services, including those that address elimination of mother to child transmission,” she said.
Article 39 criminalises ‘attempted transmission’ saying a person who attempts to transmit HIV to another person ‘commits a felony and, on conviction, could be liable to imprisonment of not more than five years’.
“This law condemns many HIV-positive people, especially those in discordant relationships.
It means that even if no transmission has taken place, this clause will hold people in discordant relationships liable,” says Dorah K. Musinguzi, a lawyer and executive director of the Uganda Network on Law, Ethics and HIV/AIDS (UGANET). This clause sets the stage for blame games that will result into family disintegration, she adds.
Should one be taken to court for having consensual sex when they know they have HIV?
Denes Twinomugisha: not only to court but they should be stoned or hanged.
Deusdedit Ruhangariyo: if two consenting adults have sex together in their ignorance and one infects the other, it is something that we should not criminalise. But i think it would be right to punish me if i intentionally slept with a woman, well knowing my status and ended up infecting her.
Julius Mwijuka: Why should someone go around infecting people when he knows he is sick? such people are criminals!
Aggrey Muhanguzi: Why should someone sleep with you when they know they are killing you? Do you know how many university girls have died because of men infecting them knowingly? Many people say if they got infected, they would intentionally infect others. They should be arrested.
Fiona Miley: Problem is, how will they prove prior knowledge of someone’s status?
Joachim Buwembo: maybe yes, maybe no. it should be criminal to infect your partner or a person you rape. Anybody else, i don’t know. It’s like asking if it’s okay to beat a thief.
Peter Mugimba: if someone knew and does not disclose, yes. If no, no. It is difficult to prove. Such law is too expensive to implement. We are doing well without it. Just enhance the right policies.
Lungfishman Lwanga: this is one of those very unresearched laws that even when its motive is good, they will inevitably bring grief to innocents. That is why we need a graduate Parliament. It makes no sense to have law-makers who have no training in law making, simply because politics dictates so. There is an imbalance that is unwise!
Roy William Mayega: of-course. The only way that Europe and America have controlled deadly infectious diseases is by being serious. In sweden, once you register with an STD, you are required to disclose all your sexual contacts and they are traced to the respective area and treated.
If any new STD case reports to a clinic anywhere in the country (everybody is registered in their social security system) and cites you as a recent partner, you are arrested and incarcerated. These guys do not patronise HIV! We cannot continue to patronise HIV. No amount of behaviour change propaganda can overcome a full-grown epidemic like HIV.
HIV is only epidemiologically self-controlled if prevalence is below 1%. in which case risky sexual contact is closed off within defined high risk groups. In a generalised epidemic like ours, all behaviour change messages are bogus and prevention can only be feasible if it targets the positives because they are the source of new infections.
HIV is unlikely to go away by ‘God’s intervention’. Man propagated it and man, therefore, must find the solutions and some of them will have to be radical. It is criminal to spread a deadly infectious disease when you know you have it, regardless of your circumstance!
Muhanguzi Aggrey: thank you Roy. Even when you are going to their country, testing and disclosure is a must. Do you know how many infected beauties enter Uganda through Katuna or mirama hills? Let Uganda be serious for once at least.
Caroline Nasingura: and we should not sympathise with the victims on how they acquired it! it should be everybody’s responsibility to know his/her status and his/ her partners, before any sexual. We should not cover the heap of sand with one hand, for Goodness sake.
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