Gay Rights Activists in Uganda Celebrate Annulment of Punitive Anti-Gay Law

Reports indicate that President Yoweri Museveni has assented to the HIV Prevention and Control Act of 2010 despite widespread opposition. An official position on the assent to the law is yet to be communicated. The assent now makes the law applicable in Uganda. A person can now be charged under the law.

The law was originally drafted in 2008 and introduced as a Private Member’s Bill in 2010. While purportedly a public health measure, the Act takes a punitive approach to addressing Uganda’s growing HIV problem. Public health and human rights activists object to the law, anticipating that it will produce negative health outcomes by dis-empowering individuals to make autonomous decisions regarding their own health. Three particular provisions of the Act threaten human rights protection in Uganda.

1. Section 14: Mandatory Testing Requirement

Section 14 requires the victims of sexual offences, pregnant women, and their partners to undergo compulsory HIV testing. While promoting HIV testing is an important part of good health policies, testing should be voluntary. Setting up mandated tests would deter individuals who do not know their HIV status and who are HIV positive from seeking medical treatment in fear of possible incriminating evidence against them. In this instance, women and children, due to the mandated testing of pregnant people, will disproportionately feel the impact.

Instead of forcing individuals to undergo testing, Uganda should take a rights-based approach to HIV prevention and encourage voluntary testing and HIV education.

2. Section 21 and Section 23: Exceptions to Confidentiality Requirements

Sections 21 and 23 provide problematic exceptions to usual privacy requirements, which prevent medical health professionals from disclosing any patient’s HIV status. The exceptions allow medical professionals to exercise their personal judgment in disclosing patients’ positive status to other medical professionals and anyone the medical professional thinks is at risk of infection, including sexual partners.

This law violates basic privacy rights and serves to further stigmatise persons living with HIV. Public health advocates have found that policies, which empower individuals to make autonomous, decisions about when, where, and how they disclose their status, lead to better health outcomes.

The law also compromises medical ethics by clashing with the Medical and Dental Practitioners Act of 1998, and the codes of ethos made under it, which outlines medical health professionals’ privacy obligations. Breaking down confidentiality requirements will make it harder for doctors to uphold the Hippocratic Oath and serve their patients effectively and ethically.

3. Section 39 and Section 41: Criminalization of Transmission

Sections 39 and 41 make attempted and intentional transmissions of HIV criminal offences. The provisions impose criminal sanctions for breaching safety protocol in treating HIV positive patients, and also provide for punishing private citizens who transmit HIV to their partners.

These provisions, in effect, criminalize being HIV positive and will likely have several adverse effects. By making it a crime to knowingly infect another person with HIV, the policy incentivizes people not to learn their HIV status. Further, the criminalizing of HIV transmission is a step backwards in the progress Uganda had been making towards decreasing the stigma surrounding HIV and increasing access to treatment resources.

The possible criminal liability for being HIV positive will prevent many people from seeking to educate themselves and their families about HIV and from seeking HIV testing and treatment. The provision runs counter to a rights-based approach to public health and is unlikely to reduce HIV rates.

It also exposes HIV positive parents to possibility of prosecution for delivering a HIV positive child.

Background

Until recently, Uganda had been internationally recognized as a model of success in combatting the HIV epidemic. Between 1992 and 2005 the HIV rate was reduced by almost two thirds from 18% to just 6.4% of the Ugandan population. However, the current rate stands closer to 7.3%. Public health professionals attribute the uptick to changes in advocacy tactics.

As Uganda has moved away from a consent-based approach to addressing HIV, the disease has become increasingly stigmatized and harder to combat. The passage of the HIV Prevention and Control Act of 2010 marks a significant, and worrisome, change in public policy.

Source: The New York Times