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Uganda: New Law Criminalizes HIV/AIDS Transmission, Requires Pregnant Women to Undergo HIV Testing

(Sept. 17, 2014) In August 2014, Ugandan President Yoweri Museveni signed into law the HIV and AIDS prevention and control bill, which, among other measures, criminalizes intentional transmission of HIV and requires pregnant women to undergo mandatory HIV testing. (Press Release, Center for Reproductive Rights, Uganda President Yoweri Museveni Signs Callous Law Criminalizing HIV and AIDS Transmission (Aug. 21, 2014).)

Key Provisions

The most notable provisions in the legislation criminalize intentional transmission of HIV or the attempt to do so. The “willful and intentional” transmission of HIV to another person is an offense that is punishable on conviction with up to a ten-year prison term and a fine of up to UGX4.8 million (about US$1,846). (HIV and AIDS Prevention and Control Bill, 2010, CIII (24) BILL SUPPLEMENT TO THE UGANDA GAZETTE (Apr. 30, 2010).) However, a person will not have committed a crime if his/her partner was aware of his/her HIV status and voluntarily accepted the risk and/or the transmission occurred despite the person’s use of protective measures; the legislation is unclear as to whether these are two exceptions or two elements of one exception. (Id. § 41.) Attempt to commit the offense is punishable on conviction with up to five years in prison and/or a fine of up to UGX200,000 (about US$92). (Id. § 39.) The legislation does not define what constitutes an attempt.

Another notable provision requires that victims of sexual offenses, pregnant women, and partners of pregnant women undergo mandatory HIV testing “for the purpose of prevention of HIV transmission.” (Id. § 14.) Failure to do so may be considered an offense of similar proportion as intentional transmission of HIV and subject to similar penalties. (Id. § 45.)

The legislation requires that the results of an HIV test be kept confidential and that they be released only to the person tested. (Id. § 19.) A breach of confidentiality or unlawful disclosure of information on the HIV status of a person by a health practitioner is an offense for which penalties similar to that of the crime of intentional transmission of HIV apply. (Id. § 40.)

However, there are a number of exceptions to the confidentiality rule. For instance, an HIV test result may be disclosed without consent to any 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 medical practitioner, poses a clear and present danger of HIV transmission to that person.” (Id. § 21.)

Also notable are provisions outlawing discrimination on the basis of HIV status. The legislation prohibits workplace discrimination, including denial of access to employment or promotion and transfer or termination of employment, merely on the basis of actual or suspected HIV status. (Id. § 32.) The legislation imposes similar bans on discrimination against a person on the basis of actual or perceived HIV status with regard to access to education, travel and habitation; access to public services; access to credit and insurance services; and access to health care. (Id. §§ 32-36.) Anyone who violates these bans may be subject to a civil wrong. (Id. § 38.)

Reactions to the New Law

A number of rights groups have criticized the legislation. Human Rights Watch, HEALTH Global Advocacy Project, and the Uganda Network on Law, Ethics & HIV/AIDS (UGANET) called the legislation, especially its provisions on mandatory HIV testing and confidentiality, contrary to international best practices; a violation of fundamental human rights; and a step backward in the fight against AIDS. (Uganda: Deeply Flawed HIV Bill Approved, HUMAN RIGHTS WATCH (May 14, 2014).) The criticism stems, in part, from the fact that Uganda’s Parliament by and large excluded the input of advocacy groups and experts from the legislative process. Dorah Kinconco Musinguzi, UGANET’s executive director, stated:

Despite years of engagement and labouring to explain the dangers on an HIV-specific criminal law, parliament has refused to be advised. When experts on HIV research and management attempted to speak, [lawmakers] still failed to heed to the key concerns … . (Alarm as Uganda Moves to Criminalize HIV Transmission, IRIN NEWS (May 9, 2014).)

Rights groups have expressed concern that the legislation will make an already rising HIV infection rate worse because it will make people less inclined to get tested for HIV for fear of the implications. (Amy Fallon, Uganda Passes Another Repressive Law — This Time Criminalising HIV Transmission, INTERPRESS AGENCY (May 15, 2014).) Musinguzi noted that an effective strategy to tackle the HIV/AIDS epidemic in Uganda must be one that treats people living with HIV as partners in the fight and not as criminals that must be excluded from the process. (Mercy Nalugo, Rights Bodies Protest HIV/AIDS Bill, DAILY MONITOR (May 15, 2014).)

Uganda’s Ministry of Health found in a 2011 study that the country’s general HIV prevalence had risen to 6.7% of the population compared to 6.4% in 2005. (John Masaba, Uganda’s HIV Infection Rate Rises to 6.7%, NEW VISION (Mar. 18, 2012); MINISTRY OF HEALTH, SITUATION ANALYSIS OF NEW BORN HEALTH IN UGANDA: CURRENT STATUS ANDOPPORTUNITIES TO IMPROVE CARE AND SURVIVAL 14 (2008).) A further breakdown of the numbers showed a gender gap in the rate of HIV prevalence in which the infection rate among women was 7.7%, while the rate for men was only 5.6%. (Masaba, supra.) Other sources indicate that the general prevalence rate is over 7%. (Alarm as Uganda Moves to Criminalize HIV Transmission, supra; Fallon, supra; Uganda: Statistics, UNITED NATIONS CHILDREN’S FUND (UNICEF) (last visited Sept. 16, 2014).)