Friday December 2 2011

Punitive laws blocking Uganda’s successful HIV/Aids responses

By Dan Ngabirano

Today, Uganda joins the rest of the World to celebrate World Aids Day. As the country marks this day, it is important to reflect on the various experiences and successes recorded so far in the fight against HIV/Aids. For long, Uganda has had such a renowned and highly coveted success story in the fight against HIV/Aids.

It is very worrying that this is beginning to change with a surge in prevalent rates from 6 per cent to 7 per cent by 2009 up from about 5 per cent in 2001. The question is why? Many have rushed to attribute this to corruption and increased risky behavioural trends that broaden exposure to the virus. The effect of this is undeniable but I would like to mention one more reason which, although trivialised,has had such a huge impact on HIV/Aids responses and programmes and if not guarded against, will accelerate the spread of the disease even further. This is the reality of highly punitive laws that ostracise certain groups, putting them at more risk.

The Ugandan Penal Code still maintains extreme provisions that criminalise acts of a sexual nature against the order of nature like homosexuality. The law also makes prostitution an offence and defines the behaviour in a sweepingly broad manner that even married couples stand to be charged if the law is strictly enforced.

In effect, penal provisions discriminate against certain groups by making their acts criminal. More alarming is the proposed Anti-Homosexuality Bill and the Prevention of HIV/Aids Bill. These seek to put in place even more stringent offences with very wide implications for me, you, landlords, priests, doctors and potentially everyone. Inevitably, even most of the crafted health and HIV/Aids prevention policies reflect and firmly stamp this pattern of discrimination in public health services.

Without going into the technicalities of these offences, I wish to now consider how they affect responses to HIV/Aids. In the first instance, it should be observed that criminalisation of sexual acts of particular groups drives those groups underground for fear of prosecution and persecution indeed. This means they cannot seek pro-rata services with mainstream community.

Criminalisation also discourages health service providers from attending to these persons for equal fear of prosecution. The totality of this is that sexual minorities such as men who have sex with men and sexual workers remain unattended to. This is a public health hazard as these groups also interact with mainstream society in many ways that may facilitate further spread of the virus. Some men who have sex with men have been married or lived with a woman before and it is well known that sexual workers interact with society more often than confessed.

This is very troubling given that while the general prevalence rates stand at 6-7 per cent, according to the most recent report done by Makerere University and the Aids support programme also known as the Crane Report, the prevalence rate among sexual workers stands at 33 per cent while that of men who have sex with men stands at 13.7 per cent. This confirms the fact that these groups have not been afforded equal attention in HIV/Aids prevention and treatment programmes. As has been rightly observed by many, this indeed amounts to a genocide by denial and puts the whole community at high risk.

It is therefore important that as the country reflects on nearly 26 years since the first HIV/Aids case was discovered, a big decision is made. A trade-off should be made between maintaining punitive and discriminative laws at the risk of a high upsurge of the virus. From a public health perspective, it makes all the sense to retract the proposed Bills while also reforming the already existing punitive laws. HIV/Aids knows no boundaries and affects all of us equally!

Mr Ngabirano is a partner at Development Law Associates and teaches Criminal Law at the Faculty of Law, MUK.