Can criminalising HIV spread reduce the infection rate?

KNOW YOUR STATUS: A medical personnel takes a blood sample from a lady while others wait for their turn to test for HIV. This was during the HIV /Aids counseling and testing awareness at Lugogo Rugby club last year. PHOTO BY ISAAC KASAMANI

As Parliament prepares to debate the HIV/Aids Bill, Ugandans hold different views about the new piece of
legislation. Mercy Nalugo explores what these views are.

A man in Mbarara is reported to have boasted of how he intentionally infected over 100 university girls with HIV. Another prominent businessman in Teso is alleged to have “intentionally transmitted the virus to a large number of female residents simply because he has a milling machine where he takes advantage of desperate women who take their produce for grinding. Just recently, a case has been filed against an HIV positive priest who allegedly raped a girl and infected her with HIV.

Should such cases go unpunished?
MPs on the HIV/Aids committee have tabled before Parliament a law that criminalises the intentional spread of the deadly incurable virus either through forceful sex or deliberately withholding information of one’s sero-status.

The legislators reason that by criminalising the spread of the virus and subjecting people to mandatory testing would guide them towards making informed decisions about their lives and planning for the future.
But human rights’ activists have protested the Bill, saying it will promote stigma and impinge on the success Uganda has attained in the fight against aids.

“Instituting criminal laws to punish persons who may or may not transmit HIV virus poses a danger to the consolidated effort and lessons learnt over time. It is difficult to see the rationale underlying the intended legislation,” says Ms Dora Musinguzi, the executive director, Uganda Network on Law, Ethics, and HIV /Aids, a non-governmental organisation. “In strategic terms, this Bill is likely to have a counterproductive effect by stalling ongoing efforts at best and increasing infection rate at worst.”

Opposition to Bill
But the chairperson of the HIV/Aids committee, the architects of the Bill, Ms Beatrice Rwakimari, insists that currently there is no comprehensive legal framework in Uganda to provide for management, prevention and control of the spread of HIV, care and treatment for persons living with HIV from discrimination.
“The existing legal framework falls short of provisions that will adequately control, prevent and manage the HIV/Aids pandemic in Uganda,” Ms Rwakimari says.

The government has also supported the Bill saying it is timely and could check on the rate of new infections. The State Minister for Health in charge of General Duties, Dr Richard Nduhura, recently said the Bill is necessary to punish those that spread the disease intentionally.

The Bill proposes a 10 year jail term for those that knowingly transmit the disease. Convicts could also suffer a fine not exceeding Shs4.8 million or both. Failure to use a condom where one knows their HIV status would also constitute a criminal offence making the culprits liable to prosecution. The proposed Bill if passed into law would also require mandatory disclosure of one’s HIV status to his or her partner, failure of which would be regarded as a crime.

It also makes it a crime for those who discriminate HIV patients and provides guidelines on how the testing and counseling should be conducted. It allows medical personnel to disclose one’s status to his or her partner.

The government has also made it mandatory for pregnant mothers to be tested for HIV. However, if tested without their consent, trouble could arise. Zambia Air force officers Stanley Kingaipe and Charles Chookole who were tested and treated for the HIV/Aids virus without their knowledge are seeking compensation for mental anguish.

The activists suggest that the Bill, which was tabled before Parliament last month, should not be passed in its current form because it will promote discrimination against people living with the virus.
Whereas Ms Rwakimari emphasises that there is no legal framework in the country to legislate against criminalisation of the transmission of HIV, activists argue that for Uganda to address its HIV epidemic effectively, it needs to partner with people living with HIV, not blame them, criminalise or exclude them from policy making.

While justifying the law, Ms Rwakimari says Uganda’s neigbours; Kenya, Tanzania, Zimbabwe and Zambia have passed the law already. “People are ignoring the content of the Bill and are focusing on one clause but for 20 years of HIV epidemic, there has been no legal framework to address HIV transmission. The Bill was committed to the Social Services Committee and is open for discussion. Let all people with issues forward them before the committee. If the people so wish that the clause criminalising the spread be deleted, we shall do that but it should come from the people of Uganda and not the human rights activists,” Ms Rwakimari says.

However Mr Joe Amon, the health and human rights director at Human Rights Watch, thinks differently. “The Bill contains measures that have been proven ineffective against the HIV epidemic and those that violate the rights of people living with HIV,” he says. “The HIV epidemic in Uganda is getting worse, and this Bill is another example of misguided, ideological approaches and lack of leadership.” Under their umbrella organisation, the Civil Society HIV/Aids Bill Coalition, the activists further argue that it is counterproductive to prosecute and force people to disclose their HIV status, saying most of them will hide and fear to test in fear of prosecution.

Ms Victoria Nabanjja (not real name), an HIV positive teenager born with the virus, says criminalisation will not reduce the new infections. “Emphasising behaviour change is what is important but prosecuting those that infect others will discourage Ugandans from testing,” she says.

HIV prevalence is on the rise in Uganda in recent years, with over a million people living with HIV and more than 100,000 newly infected each year. It is estimated that 80 per cent of those living with HIV in Uganda are unaware of their HIV status.

The international community and Uganda civil society have been vocal and opposed to some provisions in the Bill. International guidelines issued by UNAIDS, the UN Development Programme, and the World Health Organisation oppose criminalisation of transmission saying it deters people from getting tested and stigmatises people living with HIV/Aids.

UNAIDS has urged governments to limit criminalisation of transmission to only those cases where a person knowing he or she is HIV-positive acts with the intention to transmit the virus.
Dr Zainah Akol, the Programme Manager of the Aids Control Programme says the law has been brought in good faith but it may be difficult to implement. “The new law if passed in its current form is going to make people living with HIV more wild and unproductive because they will feel discriminated against. We are pleading with them not to infect others and this is better,” she notes.

Legal issues
“For example if an HIV positive man defiles a four year old girl, you cannot know whether the intension was to infect her with HIV. People go out to have sex with the intension of satisfying each other. The intention of transmitting HIV may be difficult to prove in court,” she says.
City lawyer, Mr Erias Lukwago shares the same views as Dr Akol. He says sexual matters are consensual and involve two people. “The key element of intention is what we call evil mind. It is difficult to criminalise one’s mind and start judging somebody by mind. The implementation will be very hard and in law where there are consenting adults is what we call one word against another,” he says.
Out of 500,000 patients that require ARVs, only 50 per cent (about 250,000) can access the ARVs which is a serious challenge. It remains to be seen if the law, if passed, will bring about a reduction in new infections.