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The report, a 10-page analysis of the bill, was released in Kampala, Uganda, and Geneva, Switzerland at a meeting on HIV treatment sponsored by the World Health Organization. The report criticizes repressive provisions in the legislation as contrary to the goal of universal access to HIV prevention, care, and treatment. The proposed law includes mandatory testing for HIV and forced disclosure of HIV status. It also criminalizes the willful transmission of HIV, the failure to "observe instructions on prevention and treatment," and misleading statements on preventing or controlling HIV.

"We know what works and what doesn't in fighting HIV," said Beatrice Were of the Uganda Network on Law, Ethics & HIV/AIDS. "This bill, unfortunately, is full of ineffective approaches that violate human rights and will set us back in our efforts to fight the AIDS epidemic and expand HIV programs nationwide."

The report cites Uganda's success during the 1990's in addressing HIV. Rather than adopt punitive approaches, the government engaged civil society in prevention efforts and worked to reduce the stigma of the disease. Citing international standards and "best practices," the report says that mandatory testing and criminal penalties can be counterproductive, driving people away from testing and treatment.

The report also highlighted how laws that criminalize HIV transmission can result in disproportionate prosecution of women because more women are tested as part of pre- or ante-natal medical care and therefore know their HIV status. Women's inability to safely negotiate condom use or disclosure to partners who might have been the source of their infection is not recognized in the bill as defenses against criminal penalties. Women who transmit HIV to their infants after birth via breast milk would also be subject to criminal prosecution, the report says.

"Women and girls have been disproportionately affected by HIV/AIDS," said Joseph Amon, health and human rights director at Human Rights Watch. "My fear is that mandatory testing and disclosure will lead to prosecution and violence instead of treatment and care."

The bill also criminalizes a wide and ill-defined range of conduct, such as discrimination against people living with HIV/AIDS and breach of confidentiality. According to the report, many of these acts are better dealt with through civil liability. Criminalizing such a wide range of actions opens the door for the government to prosecute people in selective or abusive ways while adding to the huge backlog in Uganda's courts.

The report highlights other areas in which the bill lacks specificity or appropriate guidance, including provisions that waive consent to testing when it is "unreasonably withheld." The report also found that the bill contains insufficient protections relating to the testing of children and their subsequent treatment, care, and support.

Further, the bill would mandate compulsory testing for drug users and sex workers, two already marginalized and criminalized groups. The report expresses concern that the proposed law, combined with other legislative efforts strengthening penalties related to homosexuality, is adding to a body of repressive criminal law in Uganda. These laws make it more difficult for civil society and non-governmental organizations to conduct effective programs with stigmatized communities.

"It's important to have a law that protects the rights of people with regard to the HIV/AIDS epidemic," Amon said. "But the bill as drafted would only make it harder to prevent and treat HIV and would put Uganda's HIV policies and response far outside of global norms."

In early November, a slightly updated version of the bill was made available for public comment. The most troubling aspects, including the lack of consent in testing, third party disclosure by medical practitioners, and criminalization of transmission have not changed. The modifications to the bill are in some instances harmful, in others beneficial.

The bill introduces additional, troubling provisions:

• Attempted transmission of HIV is now criminalized. This further opens the door for abusive prosecutions.
• Government responsibility to take steps necessary to ensure access to essential medicines at affordable prices by persons with HIV/AIDS has been deleted.

• Failure to inform one's sexual partners of HIV status is no longer criminalized, and discriminatory acts are now subject to civil, rather than criminal, liability.
• Failure to take reasonable steps and precautions to protect oneself from HIV transmission is no longer criminalized.
• Children born to HIV-positive women are guaranteed immediate appropriate treatment, care, support, and routine medication.

46. Alana Klein
Assistant Professor, McGill University
Canada
47. Amanda Lugg
United States
48. Moses Mulumba, LLB
Health and Human Rights Advisor
Coalition for Health promotion and Social Development
Uganda
49. Maria Rakgowa
Botswana
50. Mindy Roseman
Lecturer on Law, Harvard Law School
United States
51. Meena Saraswathi Seshu
India
52. Busingye Kabumba
Lecturer, Faculty of Law
Makerere University
Uganda

Background information

Briefings

AIDS in E.Europe/C.Asia - [Who works where]

AIDS pandemic - [Who works where]

AIDS in Africa - [Who works where]

AIDS in Asia - [Who works where]

AIDS in Americas - [Who works where]

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Children

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