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Tuesday 25 March 2008

Uganda: Responses to Museveni's approach to criminalising HIV transmission

Following President Museveni's call for the death penalty as the appropriate punishment for criminal HIV transmission last week, two articles have appeared in Ugandan newspapers criticising his approach.

An editorial in Kampala's newspaper, The Monitor, by Augustin Ruzindana, the Forum for Democratic Change (FDC) party secretary for research and policy, is suitably scathing (first article below); an (anonymous) academic lawyer at Makerere University has written a more balanced article for Uganda's New Vision, (second article below).

Museveni's HIV Remarks May Be Disruptive
The Monitor (Kampala)
21 March 2008
Posted to the web 21 March 2008

By Augustin Ruzindana

This week, HIV/Aids was not my topic. But the insensitivity of President Museveni's statement calling for a death sentence for people who spread the virus, cannot go unchallenged. He has implicitly called for the stigmatisation, discrimination and shunning of persons infected with HIV/Aids.

The proviso of "knowingly" is of no relevance. This is a virus which is spread in so many ways. I am sure he has relatives, subordinates and thousands of citizens infected with the virus and many of them have succumbed to death.

As a policy statement at a recognition ceremony, this is terrible but not unexpected of him. Museveni has done the same with regard to some political opponents whom he has called traitors, thus by implication calling for a death sentence against them since treason calls for a mandatory death sentence.

Terminal solutions are habitual to him. Society should instead be urged to be understanding and find ways to protect the people who have been unfortunate to get the virus. Meanwhile those helping to manage the problem should now go out to educate the public to deal with the likely adverse effects of Museveni's pronouncement. Some people may now be discouraged from taking tests or those who know their status may be afraid of disclosing it since they may be shunned.

I hope no Bill will be rushed to Parliament to put into effect the import of the unfortunate statement. In the last article, I dealt with the context for the review of the representation of the special interest groups whose mode of representation predates the coming into force of the 1995 Constitution and the recently introduced multiparty dispensation. Special interest groups were part of the National Resistance Council (NRC) and the Local Councils (LCs).

They were then incorporated into the 1995 Constitution under which the same Movement political system continued to operate. They have been inappropriately incorporated into the multiparty system without modification.

The elimination of the two term presidential limits had the unintended effect of leading to the adoption of a multiparty system. This explains the contradictions in the practical operation of the new political system in place.

On the one hand, there is an attempt to maintain political monopoly on power (and the rampant corruption that goes with it) in a manner typical to one-party systems while on the other hand, there is implementation of some level of economic and public sector reforms. These contradictions need to be eliminated for a multiparty to be properly established and operate fairly and smoothly.

For a system to be considered democratic, it must combine three essential conditions: Meaningful competition for political power among individuals and organisations; inclusive participation in the selection of leaders and policies through free and fair elections; a level of civil and political liberties sufficient to ensure the integrity of political competition and participation.

Even though fairly adequate legal and institutional frameworks are in place, there is no meaningful competition for political power, there are no free and fair elections and the level of civil and political liberties is insufficient to ensure the integrity of the processes that take place. This was highlighted by the categorical judgements of the Supreme Court which declared that the 2001 and 2006 presidential elections were a fraud.

In the face of this crisis of legitimacy, the regime has failed to inspire a sense of shared identity among all the diverse peoples of the country by ensuring the participation of all groups in the affairs of the state as well as equity in the sharing of its resources. This is the impetus for the demands of self-determination, otherwise known as "federo" and the creation of so many minute identity-based districts.

Ethnic and cultural identities have been mobilised for political purposes but then the fact that some ethnic groups feel excluded, disempowered and vulnerable has galvanised a counter mobilisation for justice and equity.

Government is responding with intimidation and violence, but this course of action just exacerbates the problems of lack of legitimacy.

As the options for government to manoeuvre get fewer and fewer, it becomes increasingly difficult to continue pretending to be democratic with increasing harassment of the political opposition. Thus the crisis of legitimacy can only escalate, even as Gadaffi, sensing the problem facing his protégé, tries to shore up his declining fortunes.

The writer is the FDC party secretary for research and policy

Punishing those who spread HIV is tricky
Publication date: Sunday, 23rd March, 2008

THERE is a debate on the appropriateness of using criminal sanctions to prosecute HIV-positive people who deliberately or negligently infect others with the virus.

Proponents argue that such a policy would deter such conduct while the anti-criminalisation lobby argue that:

  • Where behaviour is spontaneous and driven by human passion, as is sexual behaviour, it is unlikely that punishment will have a meaningful effect on people’s behaviour.

  • History indicates that punitive policies are counterproductive in the promotion of public health issues.

  • Criminal prosecutions will deter those most at risk from getting tested.

  • Opponents base their stand on the human rights implications of criminalisation for people infected with HIV/AIDS. This raises a number of questions:

    Should we punish individuals who, knowing that they are HIV+, engage in behaviour that can transmit HIV without using precautions and without informing their partners about their HIV status?

    Is it possible to use existing provisions of the Penal Code to punish ‘offenders’, for example, provisions on causing grievous harm, attempted murder, or negligent act causing death? Or would there be a need to create a specific provision criminalising the relevant conduct?

    The UN HIV/AIDS and Human Rights Guidelines provide that criminal legislation should not include specific offences against the deliberate and intentional transmission of HIV, but rather should apply general criminal offences to these exceptional cases. The guidelines identify four elements that need to be established to justify criminal sanctions: Foreseeability, intent, causality and consent. What does this mean?

    Foreseeability: The prosecution must prove that at the time of sexual intercourse, the accused knew or had reason to believe that he/she was HIV-positive. The accused must also be aware that it is harmful and capable of being transmitted through sexual intercourse.

    What kind of mens rea will be adequate? Must it be intention, recklessness or even negligence? It is imperative that laws relating to criminal transmission are used judiciously.

    They should criminalise the wilful transmission of HIV and not the HIV-positive status of a person. The relevant state of mind must be clearly established so as not to punish the accused simply because of the act of transmission.

    Causality: If the law is to punish only instances in which transmission occurs, then for the offence of criminal transmission, the prosecution must establish that the complainant was infected by the accused. The prosecution must prove that the complainant was HIV-negative at the time she/he engaged in sexual activity with the accused. It must be proved that the complainant was infected by the accused and not by anybody else.

    However, the law may punish a person who willfully engages in conduct which exposes another to the risk of infection even where the complainant escapes infection. This can be a specific offence or such behaviour can be punished according to the principles of attempts to commit a crime.

    The law would thus focus on criminal offences that prohibit behaviour which either results in transmission of disease or puts people at risk of contracting disease.

    Would informed consent be a defence to a criminal charge? If A reveals his/her HIV status to B and B nevertheless consents to unprotected sexual activity with A, this would perhaps offer a defence to A in the event of B being infected by A. So what constitutes informed consent is not that B willingly had sex with A, but that B knew that A was HIV-positive and willingly agreed to have unprotected sex with him/her.

    The Supreme Court of Canada ruled, in a case against a man who had unprotected sex with women without disclosing his HIV status to them, that without disclosure of HIV status, there cannot be true consent. The consent cannot simply be to have sexual intercourse. Rather, it must be consent to have it with a partner who is HIV-positive.

    A further issue also needs to be considered: If an accused does not reveal his/her HIV status, but takes precautions such as the use of a condom to protect his/her partner, but nevertheless transmission occurs, what would his/her criminal responsibility be?

    The writer is Associate Professor of Law, Makerere University



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