Why HIV Bill has ruffled feathers in CSOs
Posted Friday, November 1 2013 at 02:00
Kampala- The HIV/Aids Prevention and Control Bill, 2010 was first tabled in Parliament in May 2010. It seeks to establish a legal framework geared towards the prevention and control of HIV, reducing transmission of the disease, and providing HIV testing and counselling services, among others.
But civil society organisations (CSOs) in Uganda are opposed to some of the sections in the Bill. Specifically, they are opposed to Section 13, which provides for mandatory testing of persons convicted of drug abuse, those charged with sexual offence, or convicted of prostitution. Sections 23 and 41 provide for mandatory disclosure of HIV status and criminalisation of intentional transmission of the disease from one person to another respectively.
The CSOs argue that while criminalising intentional HIV transmission may appear justifiable at a glance, it is highly problematic both in terms of legal and human rights standards which, they say, is against the international guidelines on HIV/Aids and human rights.
Under these guidelines, public health legislation should not include specific offences against the deliberate and intentional transmission of HIV but should rather general criminal offences to these exceptions. In the case of Uganda, Section 120 of the Penal Code Act provides for criminalisation of intentional transmission of diseases and other such cases.
“Such provisions are self-defeating since it would be a major setback in efforts to increase voluntary testing because the offence can only be committed by persons who already know their HIV status, such that a person living with HIV who has not tested for his tests would have complete defence to such an offence,” reads part of the implications of the HIV/Aids Prevention and Control Bill manual.
This, according to Dr Flavia Kyomukama from the Global Coalition for Women against Aids in Uganda, will deter people from testing for HIV to avoid being caught under such provisions, which is a serious obstacle to national efforts to respond to the pandemic.
“It also has legal difficulties associated with proving who of the two sexual partners or spouses passed on the virus to the other and the following stigmatisation that will come attending such court proceedings,” she argues.
The activists also want the section on mandatory disclosure of HIV status deleted from the Bill. For instance, under Section 23(1) of the Bill, a medical practitioner who carries out an HIV test may notify the sexual partner(s) of the person tested where he or she reasonably believes that the HIV positive person poses a risk of HIV transmission to the partner and the person has given reasonable opportunity to inform their partner(s) of their HIV positive status and has failed to do so.’
Mr Busingye Kabumba, a civil society lawyer, argues that the provisions are vague, difficult and call for a large category of people to exercise the power of disclosure.
“This will be inconsistent with the right to privacy of the person whose HIV status is being disclosed. Under such a broadly phrased provision, any manner of persons, including laboratory attendants and drug dispensers, maybe empowered to disclose the HIV status of their clients which contravenes the human rights of individuals,” he says.
Mr Busingye contends that the disclousure to any other person with whom the HIV infected person is in close and continuous contact is vague and it could mean anyone ranging from employees, students, neighbours, friends, relatives and clients and any other person that is deemed ‘… in close and continuous contact.
’ And this, he says, violates the right to privacy as provided under the Constitution and international human rights law.
Ms Dora Musinguzi, the executive director of UGANET, says such provisions put in public health perspective will play a big role in turning away people from public health facilities for fear of mandatory HIV testing as well as disclosure of their status to a third person.
Other activists have also expressed concern on the abuse of the health workers’ code of conduct which guides all physicians world over. For instance, the Bill ignores the Hippocratic Oath which requires doctors to keep patients information in confidence and can only be shared with patients consent.
As such, the 43 Civil Society Organisations have joined together to oppose some of the sections in the Bill.
They recommend that all provisions of mandatory testing should be removed from the Bill and that any testing should be based on counselling and consent, that all references for mandatory disclosure in bill be deleted, and that all references to criminalisation be deleted and left to The Penal Code Act cap 120.
CSOs are not the only ones opposed to some of the contentious sections of the Bill.
The Uganda Aids Commission chairperson, Prof Vinand Nantulya, says the Bill is irrelevant as it seeks to address what is already put in place while some of the sections are uncalled for.
Prof Nantulya also says mandatory testing that legislators are advocating for could deter people from accessing health services at different health facilities for fear of being subjected to mandatory HIV tests.
“The difference is that for us we advocating for voluntary counseling and testing of all pregnant women. The success of this strategy depends on pregnant women attending antenatal visits. If we introduce mandatory testing, we are likely to see women abandoning visits and delivery at health facilities.”
UN opposes Bill
His sentiments are shared by the country representative for UNAIDs, Mr Musa Bungundu. In an interview with the Daily Monitor, Mr Bungundu says what MPs need to do is push for more funding so that all Ugandans living with HIV are put on treatment hence reduction in new infections.
Mr Bungundu says the law is not going to address the challenges of the HIV pandemic and that no one should be subjected to mandatory testing.