When the only weapon you have is a hammer, it is said, every problem looks like a nail.
In passing the HIV/Aids Prevention and Control Bill, Parliament is attempting the legislative equivalent, trying to use the law to fight a disease. It would be funny if people’s lives weren’t at risk.
The law, first brought to the House in 2010, seeks to deal with the problem of transmission of HIV, the virus that causes Aids. It’s solution? Criminalise those that “wilfully or intentionally” infect another person with HIV.
One can think of cases where that would be a criminal matter. Think, for instance, of someone who, upset on discovering that they are living with HIV, goes out on a revenge mission to infect as many people as possible. Surely, you say, that person must be stopped in their tracksuits – or as the law prescribes, jail them for 10 years, fine them Shs4.8 million or both.
The problem, for lack of a better phrase, is the law of unintended consequences.
What is more likely to happen is the stigmatisation of people living with HIV – whether they know it or not – and turn them into walking suspects.
Every time someone tests positive for HIV, it will, in theory, spark a criminal investigation among all their previous sexual partners, sniffing through to find the ‘guilty’ party.
A variant of the same soul-searching probably happens already but this time that information will be required to initiate criminal proceedings, not to advise counselling and treatment, if required.
The obvious problem here is how to prove that the person knew they had HIV at the moment of sexual congress, and that they, therefore, had motive. That can only happen if every time someone has an HIV test, they are recorded into a database, showing where the test took place, when, and the result.
In other words, you need to build a database of those living with HIV, not necessarily to provide them with counselling, care and support, but to keep an eye on them and charge them if they have unsafe sex. We could as well just paint the mark of the devil on their foreheads as a warning!
What that will do will keep people away from testing for HIV. After all, if there is no evidence that one knew, there is no chance of a successful prosecution.
That is the point at which the law creates more problems than it seeks to solve.
Uganda was one of the worst-hit countries by the Aids epidemic in the late 80s and the early-to-mid 90s. Two things fuelled the epidemic: ignorance about people’s statuses, and stigma towards those who fell sick.
Addressing those two problems was crucial to the epidemic tipping over: access to voluntary testing services was expanded across the country, complimented by counselling, care, treatment and other forms of support to those who tested positive, and advice to those who tested negative about safer sexual behaviour.
It was simple and effective. It was also transparent, voluntary, empathetic and dignified.
This law will potentially chase people away from testing centres, or turn testing into an involuntary exercise with potentially criminal ramifications. In addition, it stigmatises those who are living with HIV, lumping them all together, whether they know it or not, as potential agents of death. Can you imagine if the same was done for people with malaria?
It is important to get people tested for HIV (and other diseases) and to give them the support, knowledge and services they need to use that information to stay alive and to stay healthy. Threatening, criminalising and stigmatising will kill people, not save lives.