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Showing posts with label Uganda. Show all posts
Showing posts with label Uganda. Show all posts

Thursday, 11 November 2010

Nigeria: Oh the irony - "aggressive dissemination" of HIV-specific law both increases and punishes stigma

It was passed three years ago, but only now has the Lagos State AIDS Control Agency (LSACA), in collaboration with Enhancing Nigerian HIV Response (ENR) and the Lagos State Ministry of Justice begun "aggressive dissemination" of the Law for the Protection of Persons Living with HIV and Affected by AIDS in Lagos state and for other Concerned Matters.

According to the Daily Independent, the law's prime aim is to protect the rights of people with HIV by punishing HIV-related stigma.

Any form of prejudice, negative attitudes, abuse and maltreatment directed at people living with HIV and AIDS amounts to stigma. However, not so known to many people is the fact that committing any of these acts now amount to committing serious legal sins against HIV positive persons, for which some of the punishments are almost as grave as criminal offences.
There are, indeed, some positive provisions in the law which punishes breaches in healthcare worker-patient confidentiality and employer and landlord discrimination of people with HIV. It also criminalises bogus claims of HIV 'cures'.
To make this law work effectively, a Justice and Human Rights Watch Group is to be established. The group, which shall be under the control of the Lagos AIDS Control Agency, would be responsible, by law, for the monitoring and implementation of provisions of the law.

Ibirogba said, “Part of the policy which informed the drafting and subsequent passage of the law was the fact that Lagos state is most concerned about the plight of the affected persons, especially in terms of discrimination and stigmatization in hospitals, their neighbourhood and places of work.

Head of LSACA’s project Office, Dr. Olusegun Ogboye, said the agency would do everything possible to ensure the law is disseminated across as many Nigerians in Lagos.

ENR coordinator in Lagos, Dr. Olusegun Oyedeji, however cautions that HIV positive people should not take advantage of the law to ‘stigma people who are HIV negative or make unprincipled demands.’

“It will not make sense for any person to demand for special attention or ask for more than what he or she deserves because he or she is HIV positive,” Oyedeji said at the dissemination forum, which also had People Living With HIV/AIDS in attendance.
However, and without a hint of irony, it notes that – in my opinion – a poorly-written, vague and problematic statute in the law
makes an offence punishable with various jail terms up to 10 years imprisonment and fines for anyone who intentionally infects others with the Human Immunodeficiency Virus (HIV) that causes the Acquired Immune Deficiency Syndrome (AIDS).

Director at Citizens Rights directorate of Lagos state ministry of Justice, Mrs. Omotilewa Ibirobga, who gave insights on the law during the dissemination meeting at Cheers Hotel, Ikeja, Lagos , said “Section (18) subsection (1) is clear about this.”

The section reads; “Any person who willfully or knowingly endangers other persons by infecting them with the AIDS virus, commits an offence and shall be liable on conviction to a fine not exceeding N200,000 or imprisonment not exceeding 10 years or both fine and imprisonment.”
Across the continent in Uganda, international civil society Organisations, academics and HIV professionals met with the social service committee of the Parliament of Uganda last month to argue that similarly worded criminalisation statutes in the HIV/AIDS Prevention and Control Bill will increase HIV-related stigma.
[We] are of the view that crucial provisions of this law constitute a step back to the pre-1987 time when ignorance, fear, stigma and discrimination were the hallmarks of national engagement with the crisis. Namely mandatory testing, that is to say testing of a person for HIV without their knowledge and informed consent; mandatory disclosure, that is to say disclosure of a person’s HIV status without their knowledge and informed consent; and criminalization of intentional transmission of HIV.

Thursday, 20 May 2010

Uganda: Latest version of HIV/AIDS Prevention and Control Act introduced, HRW analysis

Yesterday, Beatrice Rwakimari, Chairperson of the Committee on HIV/AIDS and Related Matters introduced the latest version of the 2010 HIV/AIDS Prevention and Control Act to the Ugandan parliament.

According to a press release from Human Rights Watch (HRW) issued yesterday:

"The bill contains measures that have been proven ineffective against the AIDS epidemic and that violate the rights of people living with HIV," said Joe Amon, Health and Human Rights director at Human Rights Watch. "The HIV epidemic in Uganda is getting worse, and this bill is another example of misguided, ideological approaches and lack of leadership."

The bill as currently written codifies discredited approaches to the AIDS epidemic and contains dangerously vague criminal provisions. Contrary to international best practices, the bill would criminalize HIV transmission and behavior that might result in transmission by those who know their HIV status.

The bill would discourage voluntary HIV testing, while making testing mandatory for pregnant women, their partners, suspected perpetrators and victims of sexual offenses, drug users, and prostitutes, in violation of fundamental principles of consent. The bill also allows medical practitioners to disclose a patient's HIV status to others, breaching confidentiality standards. These provisions could potentially endanger those who are infected by exposing them to stigma, discrimination, and physical violence.
Last November, HRW and 50 Ugandan and international organisations commented on an earlier draft of the bill.

Since then, notes HRW, "the law was partially improved by removal of criminal penalty for the transmission of HIV from mother to child through breastfeeding."

However, many problematic provisions remain including those relating to:
  • HIV testing and counseling, generally and among minors
  • Notification and disclosure obligations
  • Criminalisation of HIV transmission
  • Criminalisation of other conduct related to HIV/AIDS
Earlier this month, in a letter to Uganda's Parliament, Human Rights Watch released an updated analysis of the bill which highlights:
numerous provisions that contravene the right to equal protection and non-discrimination under Uganda's constitution and Uganda's obligations under international human rights law. Furthermore, these provisions will ultimately prove counterproductive to reducing the burden of the HIV epidemic in the country.
HRW's press release concludes:
"Like the anti-homosexuality bill, the HIV/AIDS bill tramples on rights and encourages stigma and intolerance," Amon said. "The international community and Ugandan civil society have been vocal and clear about the problems in the bill. It is time for Uganda's parliament to listen and amend these damaging provisions."

Thursday, 13 May 2010

Uganda: Minister's turnaround on HIV bill raises concern (PLUSNews)

KAMPALA, 11 May 2010 (PlusNews) - Ugandan AIDS activists have expressed concern over a decision by the Ministry of Health to back an HIV/AIDS bill that would criminalize the deliberate transmission of HIV.

Last week, State Minister for Health in charge of General Duties, Richard Nduhura, appeared before the parliamentary committee on HIV to explain the government's position on the HIV and AIDS Prevention and Control Bill (2009). Nduhura backtracked on his earlier position that portions of the bill would lead to discrimination and undermine the rights of people living with HIV.

"I am in support of the law as it is now," he told IRIN/PlusNews.

Uganda's President Yoweri Museveni has in the past stated that he "fully supports" an HIV/AIDS law that would criminalize deliberate transmission of the virus.

The bill, as well as another controversial proposed law, the Anti-Homosexuality Bill 2009, has led to widespread criticism by human rights activists.

According to Stella Kentutsi, of the National Forum of People Living with AIDS Network in Uganda, the minister's U-turn showed there was still a lack of understanding of its clauses and how they would affect people living with HIV.

"The biggest problem we have with this bill is lack of awareness; we think [Nduhura's] comments were biased and influenced by parliament," she said. "He needs to sit and think carefully, then make a decision that will balance both sides."

Nduhura said he was convinced of his new position, and had not been unduly influenced by members of the parliamentary committee.

The forum has been raising awareness across the country about the bill, which is intended to provide a legal framework for the national response to HIV, as well as protect the rights of individuals affected by HIV. Many of its clauses seek to protect the rights of people living with HIV to healthcare, criminalize discrimination on the grounds of HIV status and uphold the principles of confidentiality and consent.

Contradictions

However, AIDS activists say the parts that criminalize the deliberate transmission of the virus are counter-productive; for instance, the bill outlaws attempted transmission of HIV and recommends life in prison for people found guilty of intentional transmission of HIV. Many activists have questioned how the government would prove deliberate transmission.

The bill further recommends that intravenous drug users, sex offenders and their victims, people charged with offences related to prostitution, and pregnant women and their partners be automatically tested for HIV. If passed, it would authorize medical practitioners to inform, at their discretion, people they felt were at risk of contracting HIV, such as an HIV-positive person's spouse.

"If you push for a more severe or lesser punishment because someone is infected you are discriminating and undermining the rights of people living with HIV," Kentutsi said. "Those who are HIV-infected should not be treated any differently."

The bill is due to be tabled before parliament imminently, and stakeholders will have a chance to put forward their positions on its clauses.

"People should not lose sleep over the bill; that phrase [deliberate transmission] could be dropped or retained - there is still a lot of room to review it," said Chris Baryomunsi, a member of parliament's select committee on HIV.

Saturday, 5 December 2009

East Africa: Move Towards Common HIV/AIDS Law (IPS)

Another excellent piece from the Inter Press Service News Agency, whose mission is to give voices to the voiceless.

EAST AFRICA: Move Towards Common HIV/AIDS Law
by Wambi Michael

ARUSHA, Dec 4 (IPS) - All HIV-positive east Africans could soon access free anti-retroviral treatment even as they move freely from country to country, if a new proposed law comes into effect.The East African Community (EAC) is currently developing a law to guide the region’s response to HIV/AIDS.

This comes as the regional block moves towards an integration process that would see more citizens cross the boarders in the five states of Kenya, Uganda, Tanzania, Burundi, and Rwanda.

"With the signing of the protocol on customs union that will enable free movement of persons, you are actually going to see free movement of the virus because people will be interacting more easily as they transact business. The effect of that is that HIV must be seen regionally," said Catherine Mumma, a Kenyan Human Rights Lawyer, who works with consultancy group Africa Vision Integrated Strategies. She led a consultation in the EAC states before the drafting of the new proposed law.

Based upon the consultations, the proposed law aims to provide joint treatment policies for people in the region while they move freely across the borders.

"One other thing is that east Africans would want a law that would enable them to access services anywhere they go in east Africa. So that if you were in Nairobi and you were on ARVs and you only brought two days ARVs and Kenya Airways went on strike, you should be able on the third day to walk into a treatment centre and get treated."

The law will allow for a common stance on HIV/AIDS, which aims to be non-discriminatory. Currently some countries in the region criminalise the treatment of HIV-positive sex workers and gay men.

The presidents of the five member states agreed in November to commence the East Africa common market protocol, which beings in early in 2010. It will allow for the free movement of labour and trade across borders, similar to the Southern African Development Community trade agreement.

Lucy Ng’ang’a, the executive director for the Eastern African National Networks of AIDS Service Organisations (EANNASO) said the proposed law will take on the good parts of the existing laws in the region but also tackle some of the silent issues and make better the areas that are controversial.

For example, Kenya has as a law providing for the free treatment and counselling for HIV-positive people.

One of the controversial areas is the criminalisation of the transmission of HIV/AIDS being suggested by countries like Uganda.

Another controversial area is that in the Penal Codes of Kenya, Rwanda, Burundi and Tanzania prostitutes and gay men, who are considered high risk in HIV/AIDS transmission, are not allowed access to treatment.

Member states like Kenya, Tanzania and Burundi already have laws on HIV/AIDS.

Uganda’s law, the HIV/AIDS Control Bill 2009, was tabled before Parliament in 2008 as a Private Member’s Bill. It has already caused a public outcry because of a clause relating to the criminalisation of HIV transmission between adults.

EANNASO contracted consultancy group Africa Vision Integrated Strategies to study the existing HIV laws within the region and advise on a draft bill for an East African Law on HIV.

The report by the Kenyan-registered consultancy was presented at a regional consultative meeting held between December 3rd and 4th, 2009.

Participants at the meeting in Arusha voiced concern at provisions in the member states laws relating to the rights of People Living With HIV/AIDS and criminalisation of HIV transmission.

Mumma told IPS that most people consulted felt that the issue of wilful transmission of HIV/AIDS should be punishable, but not in the context of the HIV law. It should be dealt with separately because if it was included in the HIV law, it will stigmatise people who may use this law to seek protection and treatment, the East Africa Law Society said.

"HIV should be seen as any other diseases including hepatitis B. And it would better for it to be dealt with in the context of the penal code even if it meant drafting another clause in the penal code," Mumma said.

Sarah Bonaya, a Kenyan Representative at East African Legislative Assembly and also a member of the General Purposes Committee in the parliament, said she was sure that her colleagues in the assembly would support the Bill which may be tabled as a Private Member’s Bill to the East African Assembly.

She was happy that consultations had gone on through the five states to ensure a harmonised law that would address some of the negative provisions within each member state law that would affect management of HIV/AIDS as a region.

The new proposed law on HIV/AIDS would be the second in Africa after the SADC HIV law adapted in November 2008. The SADC law provides a comprehensive framework for harmonisation of HIV and human rights in southern Africa.

Thursday, 3 December 2009

Uganda: 'Human rights will suffer' under new HIV/AIDS law (update)

Update: December 3rd

The United Nations Special Envoy on AIDS in Africa, Elizabeth Mataka – and NGOs that include the Uganda Network on Law, Ethics and HIV/Aids (Uganet) and ActionAID – have added to the many voices urging Uganda to reconsider its proposed HIV and AIDS Prevention and Control Bill.

The Daily Monitor reports that Ms Mataka told journalists in Kampala yesterday:

“I emphasise the importance of creating a bigger and social environment conducive for HIV prevention and to refrain from laws that criminalise the transmission of HIV and stigmatise certain groups in the population. These laws can only fuel the epidemic further and undermine an effective response to HIV."
Dorah Musinguzi, acting Executive Director of Uganet stated:
“We are cognisant of the fact that the draft Bill contains provisions that seek to address the HIV/AIDS pandemic but we need a law on the basis of which rights can be claimed and duties articulated in the context of HIV/AIDS. AIDS is no longer just a disease but a human rights issue. The law should be carefully crafted to find the right balance between promoting the public health while safeguarding and promoting human rights.
Original post: November 6th

A group of more than 50 Ugandan and international organizations and individuals have released a report criticising many of the provisions in the HIV and AIDS Prevention and Control Bill which is on its way to becoming law in Uganda.

A press release from Human Rights Watch (HRW) begins

The report criticizes repressive provisions in the legislation as contrary to the goal of universal access to HIV prevention, care, and treatment. The proposed law includes mandatory testing for HIV and forced disclosure of HIV status. It also criminalizes the willful transmission of HIV, the failure to "observe instructions on prevention and treatment," and misleading statements on preventing or controlling HIV.
Worryingly, the latest version of the bill, released a few days ago, has now a added provision criminalising attempted transmission, which "further opens the door for abusive prosecutions", HRW notes.

However "failure to inform one's sexual partners of HIV status is no longer criminalised" along with the rather interesting provision that would have criminalised "failure to take reasonable steps and precautions to protect oneself from HIV transmission."

Some might argue if criminalisation of HIV exposure or transmission remains in the Bill, why not allow for the prosecution of someone who does not protect oneself from HIV? That way, the law focuses on equal responsibility for HIV transmission/acquisition.

However, in a high prevalence country like Uganda (where an estimated 5.4% of the adult population is living with HIV) this would be unworkable, and would criminalise pretty much everyone who has unprotected sex, or at least is diagnosed HIV-positive - obviously a major backwards move, as this would remove any incentive for testing.

The HRW press release also focuses on the potential for criminalisation of HIV exposure and transmssion to disproportionately affect women, even though many lawmakers believe these laws protect them.

The report also highlighted how laws that criminalize HIV transmission can result in disproportionate prosecution of women because more women are tested as part of pre- or ante-natal medical care and therefore know their HIV status. Women's inability to safely negotiate condom use or disclosure to partners who might have been the source of their infection is not recognized in the bill as defenses against criminal penalties. Women who transmit HIV to their infants after birth via breast milk would also be subject to criminal prosecution, the report says.

"Women and girls have been disproportionately affected by HIV/AIDS," said Joseph Amon, health and human rights director at Human Rights Watch. "My fear is that mandatory testing and disclosure will lead to prosecution and violence instead of treatment and care."

Last month a Ugandan MP introduced a separate Anti-Homosexuality Bill that would impose the death penalty on HIV-positive gay men in Uganda if they have sex with another man.

The proposals have been roundly criticised by pretty much every human rights and HIV organisation in the world.

Thursday, 26 November 2009

Global: Human Rights Watch - Punitive Laws Threaten HIV Progress

Human Rights Watch today issued a press release to tie in with World AIDS Day – the theme of which is "universal access and human rights" – which highlights that punitive laws, including those that criminalise HIV transmission, threaten progress towards both of these important goals.


World AIDS Day: Punitive Laws Threaten HIV Progress

(New York) - HIV prevention efforts - and the promise of antiretroviral therapy as prevention - are being undermined by punitive laws targeting those infected with and at risk of HIV, Human Rights Watch said today on the eve of World AIDS Day.

This year's World AIDS Day theme is "universal access and human rights," tying together goals for universal access to HIV prevention, treatment, and care with recognition that respect for human rights is critical in the global response to AIDS. Achieving universal access to treatment has also been a key theme in debates over the past year around the use of antiretroviral treatment (ART) as a part of comprehensive HIV prevention strategies. Mathematical models have proposed that early initiation of universal antiretroviral treatment combined with HIV prevention programs could lead to the eventual elimination of HIV infection. "There is increasing evidence that antiretroviral treatment can be an important part of comprehensive prevention strategies," said Joe Amon, Health and Human Rights director at Human Rights Watch. "But if human rights abuses are unaddressed and punitive laws target people vulnerable to or living with HIV, the potential of treatment as prevention isn't going to be realized."


In many parts of the world, legislation effectively criminalizes populations living with HIV or vulnerable to HIV infection, such as sex workers, drug users, and men who have sex with men. These laws fuel stigma and discrimination, increase barriers to HIV information and treatment, and contribute to the spread of disease, Human Rights Watch said. Elsewhere, laws criminalizing HIV transmission discourage HIV testing, potentially subjecting those who know their HIV status to criminal penalties while exempting those who are unaware of their infection.

In early November, Human Rights Watch released a 10-page critique of a proposed Ugandan HIV/AIDS law, which includes mandatory HIV testing, forced disclosure, and criminal penalties for the "attempted transmission" of HIV to another person. The Ugandan Parliament is also considering a bill that allows for a seven year prison term for any person or organization who supports or promotes lesbian, gay, bisexual, or transgender people's rights. It would jail for up to three years anyone who fails to report a person they suspect of being lesbian or gay. A person living with HIV who has consensual homosexual sex would face the death penalty, regardless of risk of HIV transmission and even if their partner is also HIV-positive.

Since 2005, 14 countries in Africa have passed HIV-specific laws that potentially criminalize all sexual behavior among HIV-positive individuals, including those who use condoms, regardless of disclosure and actual risk of transmission. In a number of countries, maternal-to-child HIV transmission is a criminal offense, even where antiretroviral treatment may not be available. In Uganda, the draft legislation exempts HIV transmission before or during birth but allows for the prosecution of women whose infants acquire HIV from breast milk.

"HIV prevention has failed in many countries not because we don't know how to design effective prevention programs, but because governments have been unwilling to implement these programs and ensure that they reach everyone," Amon said. "The potential of HIV treatment in comprehensive prevention programs will be similarly sabotaged if governments continue to pass punitive laws and trample upon human rights.

Monday, 6 July 2009

Editorial: Burden of HIV disclosure falls on Uganda's women

An article in today's Toronto Star highlights the heavy burden that HIV-positive women will carry under Uganda's proposed HIV/AIDS Prevention and Control Law.

In the article, children's rights activists, Marc and Craig Kielburger, note that many HIV-positive women in Uganda – who are likely to be tested before their husbands as part of ante-natal screening – face violence and even death for disclosing their HIV status to their husbands. They highlight the fate of Glorius Kyarihunda, 25, who was murdered by her husband within days of disclosing her HIV status to him.

According to the Ugandan branch of the International HIV/AIDS Alliance, Glorius was one of five women murdered in 2008 under similar circumstances. Thousands more suffered abuse or eviction. In a survey of just one district by ActionAid Uganda, 100 out of 465 women said they experienced domestic violence as a result of disclosing their status.

Disclosure is not only difficult, it's dangerous. Yet, just months after Glorius' death, the Ugandan Parliament is debating a bill that gives a person six weeks after testing positive to tell their partner before the government does.

Given the inequalities in both inter-personal relationships, and the legal status of women in Uganda, this is simply unfair, they argue given:
the rules of predominantly male-dominated societies leave women unable to negotiate condom use or family planning. Many men, like Glorius' husband, hold their wives responsible for infection.
The article then goes on to critique other criminal HIV transmission laws in Africa:

In Togo, anyone who doesn't use a condom in "all risky sexual relations" is breaking the law while Guinea requires mandatory testing before marriage. In Zimbabwe, a woman was convicted for "deliberately infecting another person." Her lover has never tested positive for the virus. In Sierra Leone, women can also be criminalized for exposing their infants to HIV.
That this anti-criminalisation article was published a Canadian paper is somewhat ironic given the number of prosecutions taking place there, but then there is often a lack of joined-up-thinking in many low-prevalence countries when it comes international concern about AIDS and domestic HIV policies.

Thursday, 16 April 2009

Uganda: Article examines why HIV/AIDS Prevention and Control Bill is flawed

An excellent article from Andrew Bahemuka, policy advocacy officer of the Uganda Women’s Network, summarises all of the arguments against HIV-specific criminal HIV transmission legislation, published today in New Vision.

Criminalising HIV/AIDS: Not a win-win situation
Publication date: Wednesday, 15th April, 2009
By Andrew Bahemuka

AFTER nearly 30 years of addressing the HIV/AIDS pandemic, Uganda has reinforced the importance of breaking the silence around the epidemic, talking openly about HIV, and encouraging people to live positively.

Presently the Government seeks to complement the existing policy framework on HIV/AIDS with an overarching legal response.
The Government’s push to come up with the HIV/AIDS Prevention and Control Bill, 2008 is driven by the wish to respond to serious concerns about the ongoing rapid spread of HIV/AIDS in the country; coupled by what is perceived to be a failure of existing HIV prevention efforts.

However, applying criminal law to HIV exposure or transmission, except in very limited circumstances, does the opposite. It reinforces the stereotype that people living with HIV are immoral and dangerous criminals, rather than, like everyone else, people endowed with responsibility, dignity and human rights.

In some countries, which have passed the law, women have been prosecuted for mother-to-child transmission (PMTCT) of HIV. This is particularly outrageous when globally prevention of mother-to-child transmission coverage is only at 33%.

In resource poor settings, criminalisation is likely to put the blame solely on the woman for transmission that she may be unable to prevent due to dismally poor PMTCT coverage.

Criminalising HIV transmission does nothing to address the real problem which is women’s overall lack of power in society. Women often learn they are HIV positive before their male partners because they are more likely to access health services and thus are blamed for bringing the HIV virus into the relationship, according to a UNAIDS report.

Criminalisation therefore, is unlikely to prevent new infections or reduce women’s vulnerability to HIV. Criminalisation may harm women rather than assist them, and negatively impact both on public health and human rights.

Criminalising HIV exposure or transmission is generally an unjust and ineffective public policy. The obvious exception involves cases where individuals purposely or maliciously transmit HIV with the intent to harm others. Article 13 in particular provides for compulsory testing of targeted groups (drug abusers, sexual offenders and commercial sex workers) contrary to the international guidelines on HIV/AIDS and human rights.

The targeted groups are predominantly vulnerable and marginalised categories who should, in fact, be subjects of protection by the state. In these cases, existing criminal laws can and should be used rather than passing HIV-specific laws.

In addition, the Government should effectively prosecute all cases of sexual violence and ensure that rape in marriage is recognised as a crime. This is unlikely to happen soon with the Government’s delay in passing the Domestic Relations Bill, the Sexual Offences Bill and the Domestic Violence Bill.

Criminalisation of HIV immediately invokes stigma, discrimination and a disincentive for voluntary testing, and access to care and treatment. Save for a few cases, most people who transmit HIV either do so not knowing they are infected and not knowing they are transmitting HIV, or because they fear to reveal their HIV status.

Examples include women in abusive relationships who may fear to disclose their status for fear of the repercussions. Even in these cases, however, the creation of HIV-specific offences is generally not warranted, as existing criminal laws are sufficient to punish individuals who specifically intend to transmit HIV to others.

For example, laws against causing bodily harm can be applied to HIV transmission. Even under criminal law, caution has to be taken where there was no significant risk of HIV transmission or where a person:

-Did not know that he or she was HIV-positive
-Disclosed his or her HIV-positive status to the person at risk (or had reason to believe the other person was aware of his status)

-Did not disclose his or her HIV-positive status because of fear of violence or other consequences.

-Took risk-reducing measures (such as practising safer sex through using a condom or other precautions), or

-Previously agreed on a level of mutually acceptable risk with the other person.
In view of the above, HIV/AIDS specific legislation is not a necessity and should not be encouraged. The Government should focus on empowering people living with HIV to seek HIV testing, disclose their status, and practise safer sex without fear of stigma and discrimination.

The Government could aim at empowering HIV-positive persons by enacting and enforcing anti-discrimination laws and promoting social campaigns to reduce stigma. In order to slow down the spread of the HIV epidemic, vast numbers of people would have to be prevented from having unsafe sex, sharing syringes, or engaging in other risky behaviour, which no HIV-specific criminal law could possibly do.

HIV risk behaviour is prevalent in prisons, and most prison systems continue to reject introduction of evidence-informed prevention measures such as condoms and sterile injecting equipment and fail to undertake measures to reduce the prevalence of rape and other forms of sexual violence.

There is need therefore, for the Government to consult widely with the different stakeholders to make the current bill, human rights responsive. That is when we shall consolidate the gains the country has made in the HIV/AIDS struggle.

Wednesday, 15 April 2009

Uganda: Editorial says both Aziga and his 'victims' were equally reckless

An interesting editorial appeared today in Uganda's New Vision about the use of the criminal law for HIV exposure or transmission in the aftermath of the Johnson Aziga verdict. Mr Aziga was born in Uganda, which is currently debating its own HIV-specific criminal transmission laws.

Self-protection, not law will curb HIV infection

Publication date: Tuesday, 14th April, 2009

A Ugandan living in Canada has been found guilty of murdering his two sexual partners by infecting them with HIV, the virus that causes AIDS.

Johnson Aziga was convicted of first-degree murder of two women and aggravated sexual assault of 11 others. He was sentenced to life imprisonment. In Uganda, the intentional spread of HIV/AIDS is not covered by the Penal Code but the HIV/AIDS Prevention and Control Bill, now in Parliament, which seeks to make it an offence.

Alison Symington of the Canadian Legal Network, says the conviction is troubling because a sexually-transmitted infection is equated to murder.

The case of Aziga raises several legal, ethical and public health issues. Should diseases be legally classified? The Canadian prosecutors say the two women were murdered because Aziga infected them with a ‘slow-acting poison’ since they did not know he had HIV. Would this ‘slow poison’ have been less lethal had the women known Aziga’s health status? What was the women’s HIV status before they had sex with Aziga? The Supreme Court of Canada in 2005 ruled that one partner cannot give consent for sexual relations if the other fails to disclose an HIV infection.

Depending on partners’ ‘disclosure’ of their HIV status is very risky and should not be encouraged. Aziga’s case proves that AIDS is incurable and, therefore, everybody must take care of themselves. Aziga did not rape the women he infected.

They consented to unprotected sex with a person whose HIV status they did not know when they could have negotiated safe sex or declined his advances altogether. It was not only Aziga who was reckless, but the women as well.

By having unprotected sex with multiple partners, Aziga courted the spectre of contracting drug-resistant HIV and recycling it through reinfection. The only sure way of curbing HIV infection is not through legislation but aggressive sensitisation about self-protection and behaviour change since there is no known cure of HIV to date.

Friday, 12 December 2008

Uganda: Bill to force spouses to reveal HIV status

Uganda's proposed HIV and AIDS Prevention and Control Bill is analysed in this report from the Daily Monitor.

President Museveni has previously said that he supports the death penalty for criminal HIV transmission.


Bill to force spouses to reveal HIV status
by Sheila Naturinda
Monitor Online
Dec 12, 2008 - 2:54:15 AM
Kampala

Ugandans who test positive for HIV, the virus that causes Aids, will have their results shared with their spouses and sexual partners with or without their consent, under a new law proposed by the government.

The draft HIV and Aids Prevention and Control Bill 2008 unveiled before a committee of Parliament this week, seeks to criminalise the willful and intentional transmission of HIV to an uninfected person. It also seeks to guarantee access to treatment for those already infected and to protect people living with HIV against discrimination.

The Bill still, undergoing consultations, seeks to get a formal legislation to back up and supplement the fight against the epidemic in the country. HIV/Aids activists have, however, attacked provisions of the draft that seek to peel away the veil of confidentiality that voluntary testing for HIV currently provides.

For instance, the Bill recommends that medical personnel who carry 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 been given reasonable opportunity to inform their partner(s) of their HIV positive status and has failed to do so”.

Ms Stella Kentutsi of the National Forum of People Living with HIV/Aids Networks in Uganda told Daily Monitor that the provisions compelling disclosure are insensitive to the people living with HIV. “This criminalisation will automatically affect disclosure which has been encouraged and it will therefore increase the level of silent transmission among the population,” she said.

Mr Robert Ochai, the executive director of The Aids Support Organisation, said the Bill has many contentious clauses including that of disclosure which ought to be deleted or amended.

Dr Chris Baryomunsi, the vice chairperson of the parliamentary committee on HIV/Aids, defended the draft Bill and its provisions and said similar laws criminalising willful transmission of HIV had been passed in South Africa, Kenya, the Philippines and China. He added, however, that the Bill could be amended to address concerns raised by various groups.

The Bill urges individuals, who are aware of their HIV-positive status to inform their sexual partners and observe instructions on prevention and treatment. Although the Bill provides for voluntary counselling and testing for HIV, it prescribes compulsory HIV tests for people convicted of drug abuse or possession of medical instruments associated with drug abuse, people charged with sexual offences such as rape and defilement, as well as sex workers convicted on prostitution charges.

The Bill also prescribes “routine” HIV testing for victims of sexual offences and pregnant women as well as their partners. It also provides for individuals to be subjected to HIV tests under a court order, with or without their consent.

First effort
The Bill is the first formal effort by the government to criminalise behaviour that could lead to HIV and Aids. It comes at a time of growing anxiety among public health specialists over the stagnation of the country’s HIV prevalence rate at around 6.5 per cent and evidence of rising year-on-year infections.

The move towards forceful disclosure appears informed by research findings which show more infections occurring among married couples, as well as a high incidence of discordance where one partner is not infected.

Supporters of the Bill argue that compelled disclosure will help uninfected partners take steps to prevent infection.
Despite the controversial clauses on disclosure, the Bill contains several provisions designed to protect the rights of people living with HIV and Aids.

Apart from providing for pre and post-test counselling, the Bill says every pregnant woman who tests positive for HIV is entitled to safe and appropriate anti-retroviral treatment, which helps postpone the onset of Aids, and medication to prevent the transmission of the virus to her baby. It also provides for HIV testing for babies born to HIV-positive mothers and guarantees treatment, care and support for those found to be infected.

In other provisions, the Bill forbids employers from subjecting employees to compulsory HIV tests. It also notes that “no person shall be compelled to undergo an HIV test or disclose his status for the purposes of gaining access to any credit or loan services, medical, accident or life insurance or extension of continuation of such services”.

The Bill states, “A person shall not be denied access to any employment which he/she is qualified or transferred and denied promotion on such grounds like he has the virus or he is perceived to carry the virus.” It prescribes a five-year jail term to employers who violate this provision.

The Bill also seeks to eliminate discrimination among school children that have been affected in their schools because some have been denied education on grounds that they are HIV positive. “An education institution shall not deny admission or expel, discipline segregate and deny participation in any event that a person is perceived to be of HIV positive status,” it states. The Bill also seeks to have all persons whether infected or not have a right to vie for public offices.

In work places, the Bill seeks to force all employers to make sure all mechanisms are in place to reduce contraction of the disease by their employees.

In places like hospitals, according to Dr Baryomunsi, all employers will be mandated to ensure that necessities like adequate gloves and immediate medications are available in cases where someone accidentally pricks himself. “This helps in cases where such a person is likely to unknowingly transmit the virus to a patient,” he said.

The Bill states: “Every institution comprising of 20 or more persons will provide HIV/Aids related treatment and the compensation to persons working in such an institution who will be occupationally exposed to the virus,” the Bill reads in part.


Highlights of the Bill

  • Willful and intentional transmission of HIV is criminal.
  • A doctor can notify a partner of an HIV-positive preson their status if the doctor believes the infected person poses a risk of transmission
  • Individuals aware of their HIV-positive status should inform sexual partners and observe instructions on preven tion and treatment.
  • Compulsory HIV tests for people convicted of drug abuse or possession of medical instruments associated with drug abuse, people charged with sexual offences such as rape, defilement, as well as sex workers convicted of prostitution.
  • Routine HIV testing for victims of sexual offences and pregnant women as well as their partners.
  • Every preganant woman who tests HIV-positive is entitled to safe and appropriate anti-retroviral treatment.
  • HIV testing for babies born to HIV-positive mothers and treatment, care for those found infected.
  • Loan/credit/insurance providers should not subject clients to HIV test as a precondition for offering the credit or service.

Monday, 8 December 2008

Uganda: Man jailed for infecting mentally ill woman with HIV; fuels proposed 'wilful' transmission law debate

A 47 year-old HIV-positive man has been jailed for 14 years in Uganda for having sex with a mentally ill young woman and allegedly infecting her with HIV.

Although there is currently no criminal HIV transmission in Uganda, the trial took place during fierce public debate over the HIV Prevention and Control Bill which seeks criminalise "wilful" HIV transmission. However, sex with a mentally ill person is a criminal offense regardless of HIV status that carries a penalty of a 14 year prison sentence.

I've included two articles here. The first, from New Vision Online, reports the trial and setencing and refers to the legal debate. The second, from IRIN/Plus News, a few weeks earlier, examines the proposed law and civil society's reactions to it.

Man jailed for infecting girl with HIV
New Vision Online
Wednesday, 3rd December, 2008
By Dradenya Amazia

A 47-year-old man is to serve 14 years in jail for having sex with a mentally ill 19-year-old-girl and infecting her with HIV/AIDS.

Sarafino Aginya is a resident of Metu in Moyo district.

Having sex with a mentally ill person is an offence.

Aginya, who was arrested red-handed last August, yesterday pleaded guilty, and blamed Satan.

Any person who has sex with a woman, knowing that she is an idiot or imbecile, is liable to imprisonment for 14 years, according to the Penal Code.

Passing judgment, Magistrate Geofrey Salaume, said Aginya intentionally infected the girl, which had traumatised the family and her care-takers.

The night he committed the horrific act, Salaume said, Aginya pretended to be drunk and the girl’s parents offered him accommodation.

In the middle of the night, Aginya forced the girl into “live sex and infected her with HIV/AIDS” well aware of his status, the magistrate stated.

“You have traumatised and abused the hospitality the family of this girl provided you by adding more stress and misery to her parents by forcing her to have unprotected sex while knowing that you have HIV/AIDS,” Salaume said while reading his ruling. Salaume said there was need to keep people like Aginya “away for sometime so as to make others learn.”

“I want to keep you away from others by giving the maximum punishment which I feel is proportionate to your act, which will be 14 years of imprisonment.”

He said Aginya’s act was a taboo in African culture.

“We can’t tolerate this kind of act. It is taboo in African culture to have pre-marital sex with a girl at her parents’ home and in their bed,” he fumed.

Salaume cautioned the people of Moyo to be careful with distant relatives and friends when extending hospitality to them. Aginya has 14 days to appeal to the High Court if he so wishes.

The prosecutor produced a medical report proving that the accused was HIV-positive and had infected the girl.

The court heard that Aginya was accommodated in the same room with the girl. The mother heard her screaming and rushed to the bedroom where she found Aginya forcefully having sex with the girl. Aginya was arrested and handed over to the Police.

The intentional spread of HIV/AIDS is not covered by the Penal Code. But the HIV/AIDS Prevention and Control Bill, now in Parliament, seeks to make this a criminal offence. It is intended to provide a legal framework for the national response to HIV and protect the rights of individuals affected by HIV.

The Bill has, however, been vehemently opposed by the people living with the disease. The Bill has been also criticised by activists, saying it requires HIV-positive people to reveal their status to their sexual partners and pregnant women to be tested.

Laws that make the intentional HIV transmission an offence have been in effect in the developed world. The trend is growing in Africa, where higher prevalence levels make such laws attractive to policymakers.

In Switzerland, a man was sent to jail earlier this year for infecting his girlfriend with HIV, even though he was unaware of his HIV status. A Texas court recently sentenced a man living with HIV to 35 years in prison for spitting on a Police officer.

UNAIDS has warned that using criminal laws in cases other than intentional transmission could create distrust between healthcare workers and patients.



UGANDA: Draft HIV bill's good intentions could backfire
PlusNews
24 November 2008

AIDS activists in Uganda have slammed a proposed new law that will force HIV-positive people to reveal their status to their sexual partners, and also allow medical personnel to reveal someone's status to their partner.

The HIV Prevention and Control Bill (2008) is intended to provide a legal framework for the national response to HIV, as well as protect the rights of individuals affected by HIV.

Activists agree that Uganda needs legislation to guide its HIV policy. "We want the law; as a matter of fact we are overdue in having a legal framework," said Beatrice Were, a leading HIV-positive campaigner.

However, they are concerned that the bill in its current form could worsen the difficulties many HIV-positive people experience.

Pregnant women will have to undergo compulsory testing, which proponents said would increase the number of women accessing prevention of mother-to-child HIV transmission (PMTCT) services; in 2007, only 600,000 pregnant women of 1.4 million were tested for HIV, 91,000 of whom were found to be infected.

Dr David Apuuli Kihumuro, head of the Uganda AIDS Commission, told IRIN/PlusNews that certain sections of the bill needed to be revised, for instance, the provision that HIV status disclosure would be mandatory for couples planning to marry.

"We have to think about the repercussions of this in a male-dominated society," he said, noting that many women were afraid of their husbands' reactions once they revealed their HIV status; at least three women have been killed by their husbands this year because they were positive.

Stella Kentutsi, programme manager at the National Forum of PHLA Networks in Uganda (NAFOPHANU), said medical practitioners usually had no way of knowing how a spouse or other sexual partners might react, and should therefore not be permitted to reveal an infected person's HIV status. "Even if the partner has a right to know ... forceful revelation is not okay," she said.

'Wilful' transmission
The bill also criminalises - with a punishment of the death penalty - the intentional or wilful transmission of the virus. President Yoweri Museveni has said he "fully supports" an HIV/AIDS law that would criminalise deliberate transmission of the virus. There has been a recent public outcry over media reports of HIV-positive individuals infecting minors, which has gained support for the bill.

"If you push for ... punishment because someone is infected, you are discriminating and undermining the rights of people living with HIV," Were said.

Kentutsi asked: "How do you know who infects intentionally and wilfully and who does not?" What makes it intentional or wilful?"

Activists said applying criminal law to HIV-risk behaviour was likely to undermine prevention efforts and, rather than encouraging people to know their status, would actually deter them from seeking HIV testing.

The bill could also allow the government to avoid its responsibility to prevent HIV, and foist the blame for being positive on infected people.

"We should avoid creating scenarios where people living with HIV/AIDS are looked at either criminals or potential criminals," a recent statement by NAFOPHANU said.

"Rather than introducing laws criminalising HIV exposure and transmission, legislators must reform laws that stand in the way of HIV prevention and treatment."




Saturday, 1 November 2008

Uganda: Proposed criminal HIV transmission laws opposed by advocates

Advocates living with HIV in Uganda are fighting tough new criminal HIV transmission laws originally proposed by President Museveni last year.

Section 37 of the proposed HIV/AIDS Prevention and Control Bill 2008 proposes to execute HIV-positive individuals who "knowingly infect minors with HIV".

If passed, any HIV-infected person who performs a sexual act with another person who is below the age of 18 commits a felony called aggravated defilement and, if convicted by the High Court, will be executed.

HIV group to fight anti-AIDS law
Friday, 17th October, 2008
By Anne Mugisa
New Vision

THE people living with HIV/AIDS have condemned the proposed HIV Prevention and Control Law. They asked the Government to drop the Bill which is currently before the parliamentary committee on HIV/AIDS.

The proposed law is aimed at criminalising deliberate spread of the deadly virus. According to Flavia Kyomukama of the Global Coalition of Women Against AIDS, the law is likely to increase stigma and fuel the spread of the virus.

These sentiments came forth during the launch of the national five-year prevention and care strategic plan of the Uganda AIDS Commission (UAC) at the Imperial Royale Hotel in Kampala on Wednesday.

“Why is government running away from its inadequacies of providing prevention, care, treatment and social support services? They must protect the citizens in a way that does not put to risk the lives of an already marginalised group, in this case, people living with HIV in Uganda,” Kyomukama said.

However, the donors refused to condemn the Bill, despite the passionate attack on it by the Global Coalition of Women against AIDS. Instead, the Irish Ambassador, Kevin Kelly, who represented donors at the launch, said the Bill should be combined with provisions to protect those infected.

The state minister of health, Dr. Richard Nduhuura, said the Bill will not criminalise people living with AIDS but punish those who knowingly infect others.

The UAC, Director General, Dr. Kihumuro Apuuli, identified the biggest driver of the AIDS pandemic as being men, both married and single, who have numerous sexual partners. They are infected and deliberately having unprotected sex.



People living with Aids criticise HIV Bill
Evelyn Lirri
October 20, 2008
Monitor Online

Kampala: People living with HIV/Aids have criticised a proposed Bill that criminalises the spread of the disease, saying it will only perpetuate stigma and discrimination.

According to Ms Flavia Kyomukama from the Global Coalition of Women Against Aids, criminalising the spread of HIV/Aids will lead to less disclosure of status as people will shun voluntary counselling and testing.

“We believe the proposed HIV Bill is a retrogressive and bad policy for us because it will perpetuate stigma and discrimination which we have been fighting for a long time,’’ Ms Kyomukama said.

Speaking at the sixth HIV/Aids Partnership Forum organised by the Uganda Aids Commission on Friday in Kampala, Ms Kyomukama said the government should instead refocus its energies on enacting the Domestic Relations and Sexual Offences Bills.

The government is currently drafting a Bill to execute offenders who knowingly infect minors with HIV. The Bill, which is before the parliamentary committee on HIV/Aids, specifically targets those who infect children with HIV through sexual abuse.

If passed, any HIV-infected person who performs a sexual act with another person who is below the age of 18 commits a felony called aggravated defilement and, if convicted by the High Court, will be executed.

But activists believe the Bill is misguided, urging the government to instead put more efforts in HIV awareness and prevention campaigns. “The Bill is not the way to fight HIV/Aids. The way is social support and ensuring that we prevent new infections,’’ said Ms Kyomukama.

However, Health State Minister Richard Nduhura said the Bill will only punish those who knowingly infect others with the HIV virus. There are currently close to one million Ugandans living with HIV while 130,000 new infections occur annually.


Uganda: Aids Activists Reject Bill
29 October 2008
by Anthony Bugembe
New Vision/AllAfrica.com

PEOPLE living with HIV/AIDS have rejected the proposed HIV/AIDS Prevention and Control Bill 2008.

The draft Bill criminalises the intentional transmission of HIV and AIDS. According to Section 37 of the Bill, a person who intentionally transmits HIV and Aids to another person commits an offence.

"We should avoid creating scenarios where people living with HIV/AIDS are looked at as either criminals or potential criminals," said Paddy Masembe, the executive director of Young People Living with HIV/AIDS.

Masembe said the draft Bill undermines several critical issues. These include vulnerability and needs of women, young people, prisoners, people with disabilities, migrants, sex workers and the age of informed consent for HIV-related medical treatment and interventions.

He was representing the National Forum of People Living with HIV/AIDS Networks in Uganda during a discussion in Mengo recently.

Lillian Mwoleko, the regional coordinator of the International Community of Women Living with HIV/AIDS, expressed concern over compulsory HIV testing for pregnant women and their partners.

"No one, especially women, should be forced to disclose his or her status given the consequences of doing so. They include stigma, discrimination, violence and abandonment."

Masembe urged that the process be halted as they hold wider consultations with stakeholders.


Tuesday, 2 September 2008

Mexico conference shines spotlight on criminal HIV transmission

South African Supreme Court Justice Edwin Cameron's impassioned call for “a campaign against criminalisation” has been heard far and wide since he gave his plenary presentation on the final day of the XVII International AIDS Conference in Mexico City last month.

I have collected the various articles that have reported on Justice Cameron's plenary, as well as the five other sessions consisting of at least 20 different oral or poster presentations, many of which I previously reported on here. Several of the articles also include quotes from a press conference held in Mexico, which – strangely – took place at the same time as the main Wednesday session on criminalisation, and which I unfortunately missed.

They include a high profile article in The New York Times, as well as articles or editorials from Canada, Jamaica, Rwanda, South Africa, Uganda, and the United Kingdom. There was even coverage of the issue in The Diplomatic Courier, a publication from the United States that reports on diplomatic and security issues .

I also wrote a second piece for aidsmap.com, covering Justice Cameron's plenary in detail and several other sessions at the conference, which you can find here.

Seeking Better Laws on H.I.V.
by Lawrence K. Altman
New York Times
August 9, 2008

MEXICO CITY — The 17th International AIDS Conference ended here on Friday with a call for the reversal of laws that criminalize and stigmatize groups at risk for H.I.V., the virus that causes AIDS.

“Criminalization is a poor tool for regulating H.I.V. infection and transmission,” Edwin Cameron, a justice of the Supreme Court of Appeals in South Africa, said in a plenary session.

“Let one of the conference outcomes be a major international push-back against misguided criminal laws and prosecutions,” said Justice Cameron, who is himself infected.

Citing cases in Texas, Zimbabwe, Sierra Leone, Bermuda and Switzerland to illustrate the “folly of criminalization,” the judge said, “There is no public health rationale for invoking criminal law sanctions against those who unintentionally transmit H.I.V. or expose others to it.”

Justice Cameron said he understood that society feared the deadly virus and that public officials might want to invoke laws to counter those who recklessly passed it to others.

But, he said, “Criminalization is warranted only where someone sets out, knowing he has H.I.V., to infect another and succeeds.”

Justice Cameron cited the conviction in Dallas in May of Willie Campbell, 42, a homeless, H.I.V.-infected man who was charged with harassing a public servant with a deadly weapon after he spat at a police officer who arrested him.

Mr. Campbell must serve at least half of his 35-year sentence before he can apply for parole.

Justice Cameron pointed out that, according to the Centers for Disease Control and Prevention, saliva has never been shown to result in the transmission of H.I.V.

“The man was punished not for what he did, but for the virus he carried,” the judge said.

At the trial Mr. Campbell’s lawyer said he was indicted as a habitual offender, with a minimum penalty of 25 years, because he had been convicted of attacking two other officers in a similar manner and biting two inmates, as well as more than two dozen other offenses.

Justice Cameron described a law in Sierra Leone that requires a woman to take reasonable measures and precautions to prevent transmitting H.I.V. to her fetus. But testing for the virus and treatment for an infected mother are not widely available, health officials have said.

At least a dozen African countries have adopted similar laws, many poorly drafted, said the judge, who called them poor substitutes for measures that protected those at risk.

AIDS conference ends with call to end stigma
Ingrid Brown
Jamaica Observer
Monday, August 11, 2008

According to Edwin Cameron - a judge of the Supreme Court of Appeal of South Africa - the enactment of laws that criminalise transmission of or exposure to HIV had become so widespread, and criminal prosecutions so frequent, that they had become a crisis in efforts to deal rationally and effectively with HIV.

"Rather, they radically increase HIV stigma and become barriers to testing and treatment," he said.


10 reasons why criminal laws and prosecutions make bad policy in the AIDS epidemic
Body Positive Northwest (UK)

On the final day of AIDS 2008 in Mexico City HIV positive Judge from South Africa's Supreme Court of Appeal, Edwin Cameron delivered a passionate lecture entitled HIV is a virus, not a crime.

Justice Cameron argued that the enactment of laws that criminalise transmission of or exposure to HIV has become so widespread, and criminal prosecutions so frequent, that they have become a crisis in efforts to deal rationally and effectively with HIV. Citing examples from locations as diverse as the United States, Sierra Leone and Singapore, Cameron highlighted the irrational nature of these laws and their ineffectiveness in achieving their purported goal of preventing the spread of HIV. Rather, they radically increase HIV stigma and become barriers to testing and treatment. Prosecutions often single out already vulnerable groups such as sex workers, men who have sex with men and, in European countries, black males. Women are especially victimised by these laws, which expose them to assault, ostracism and further stigma.

Cameron stated that one of the outcomes of AIDS 2008 should be a major international pushback against such misguided criminal laws and prosecutions. He urged delegates — strengthened in their resolve to fight against stigma and discrimination — to return home committed to persuading lawmakers and prosecuting authorities of the folly and distraction of criminalisation.

In brief, Cameron stressed the following;

1. Criminalisation is ineffective
2. Criminal laws and criminal prosceuctions are a poor substitute for measures that really protect those at risk
3. Criminalisation victimises, oppresses and endangers women
4. Criminal laws and prosecutions are often unfairly and selectively applied
5. Criminlisation places the blame on one person instead of responsibility on two
6. Criminal laws targeting HIV are difficult and degrading to apply
7. Many of the laws are very poorly drafted
8. Criminalisation increases stigma
9. Criminalisation is a strong discincentive to testing
10. Criminalisation assumes the worst about people with HIV, and so punishes vulnerability.

Prevent and treat HIV, don't criminalize it
Andre Picard
The Globe and Mail (Canada)
August 14, 2008

In Dallas, a 42-year-old homeless man was arrested for "harassing a public servant with a deadly weapon" - a fancy way of saying he spit on a cop. Because Willie Campbell was HIV-positive, he was jailed for 35 years, even though there has never been a documented case of the AIDS virus being transmitted by saliva.

In Zimbabwe, an infected woman was arrested for having unprotected sex with her lover.

The woman was convicted of "deliberately infecting another person," even though the man was not infected and did not want to press charges. She was sentenced to five years in prison.

In Windsor, Ont., Carl Leone was sentenced to 18 years in prison after being convicted of 15 counts of aggravated sexual assault. The 32-year-old did not tell his sexual partners he was infected with HIV. Five of the women contracted the virus. Around the world, women and men infected with HIV are increasingly being prosecuted.

Mr. Justice Edwin Cameron of the Supreme Court of Appeal of South Africa told delegates to the International AIDS Conference last week that the growing criminalization of HIV-AIDS is a travesty that risks undermining progress and fuelling the epidemic.

"HIV is a virus, not a crime," he said.

Judge Cameron, who is HIV-positive himself, said there are instances in which criminal prosecutions are appropriate, such as rape and when an infected person deliberately and knowingly spreads the virus, as in the case of Mr. Leone in Canada. But those crimes are covered by existing legislation.

Judge Cameron said what is troublesome in a world where 33 million are infected with HIV is the creation of special laws relating to HIV transmission and exposure.

In Egypt, for example, being infected with the AIDS virus is a crime, regardless of behaviour.

In Sierra Leone, "HIV transmission" is now a crime and the law applies to anyone who exposes another to the virus, even without transmission. The law expressly applies to pregnant women, meaning an HIV-positive woman can be jailed for being pregnant or breastfeeding, even though there are effective measures for preventing transmission.

Judge Cameron said HIV is a fearsome virus, but the response is largely irrational and counterproductive. He listed 10 reasons criminal laws make for bad health policy:

1) Criminalization is ineffective: There is no proof it stops the spread of HIV.

2) Criminal laws and prosecutions are a poor substitute for measures that really protect those at risk.

3) Criminalization victimizes, oppresses and endangers women. Worldwide, the vast majority of those who know they are infected are women, because of policies of testing them before the birth of a child.

4) Criminal laws and prosecutions are often unfairly and selectively applied. Those who end up being prosecuted are sex workers, men who have sex with men, intravenous drug users and, in Western countries, immigrants.

5) Criminalization places the blame on one person in a sexual relationship instead of responsibility on two people. In much of the world, women are in a subordinate position and cannot protect themselves.

6) Criminal laws targeting HIV are difficult and degrading to apply. Should consensual sex be subject to cross-examination? (Rape and the deliberate attempt to infect are different issues entirely.)

7) Many of the laws are poorly drafted and they would not pass muster in democratic states.

8) Criminalization increases stigma.

9) Criminalization is a strong disincentive to testing. And if a person is not tested, he or she will not be treated.

10) Criminalization assumes the worst about those with HIV and punishes vulnerability.

Put simply, Judge Cameron said, "Criminalization is a poor tool for controlling HIV-AIDS. There is no public health rationale whatsoever for invoking criminal law sanctions against those who unintentionally transmit HIV or expose others to it."

It is also well established that countries that respect human rights and civil liberties, and encourage the undiagnosed to be tested for HIV, do a far better job of containing the epidemic than those adopting punitive, moralistic strategies.

The epidemic of HIV-AIDS is now in its third generation, and is likely to be with us for several more generations.

Prevention and treatment are the main tools available to fight this plague, with a dollop of human rights on the side. The world will never be able to prosecute away this massive public health challenge.

Move to criminalise AIDS ‘bad for Africa’
Tamar Kahn

Business Day (South Africa)

MEXICO CITY — A wave of ill-considered new African HIV/AIDS laws criminalising the transmission of the virus were likely to backfire and end in more people being infected, Supreme Court of Appeal judge Edwin Cameron said this week.

Cameron was speaking at the 17th International AIDS Conference, which ends today.

“Just like condoms or faulty medical supplies, bad laws can spread the virus,” said SA’s Cameron, who is expected to give a plenary address on the issue later today.

Cameron said he hoped to use the “Champions for HIV” initiative that Botswana’s former leader, Festus Mogae, started this week, to urge changes to recently passed laws in west, east and central Africa that criminalised HIV transmission.


Criminalising HIV spread won’t help
Editorial
Daily Monitor (Uganda)
August 12, 2008

There is growing concern across the world in regard to the criminalisation of HIV infection. The concern was reiterated at the 17th International HIV/Aids Conference in Mexico which ended last week.

In Uganda the government is soon coming up with a law that criminalises HIV transmission. The draft law holds that any person who knowingly infects another with HIV or carries out an action while knowing that such action will pass on the virus to another person, shall be guilty of a criminal offence.

The punishment for the offence has not yet been specified but the President has said that people who knowingly infect others with HIV should be hanged on conviction.

Whereas it’s heinous to deliberately infect other people with HIV, and whereas the government is right to get concerned, drafters of that law must be mindful of the impediments in its implementation. Criminalisation of HIV infection may not help reduce HIV prevalence as it may be difficult to secure a conviction in courts of law.

The law targets to punish people who infect others through unprotected sexual intercourse including HIV infected rapists/defilers who force their victims into unprotected sex and thereby infecting them.

However there are hurdles that may render this law ineffective. How will the prosecution establish that the victim was HIV free before the alleged rape/defilement occurred? How will the prosecution prove that it’s not the victim who actually infected the rapist/defiler?

How will the prosecution prove that the rapist who has been tested and found HIV positive, knew his sero-status before or at the time he committed the alleged rape/defilement? Because a person can be deemed to have deliberately spread the HIV only if they knew that they were infected with the virus at the time of commission of the crime.

The drafters of the law on criminalisation of HIV transmission have an uphill task to come up with a law that will not become too complicated to deliver the desired results.

Besides, the criminalisation of HIV spread may cause stigma by portraying people living with HIV as callous human beings who have little regard or remorse for other people’s lives.

The government should explore more effective non-criminal interventions or policies to fight HIV/Aids prevalence instead of criminalising the transmission of the Aids virus.

When HIV Carriers Could Be Guilty for Transmitting the Virus
Rwanda News Agency/allAfrica.com
21 August 2008

In 2006, Mr. Emmanuel Gahutu and his wife discovered they were HIV positive. Mr. Gahutu now blames it all on her - after a 17-year marriage. As RNA reports, should some campaigners get their way, Mr. Gatutu should be able to drag his wife to court for infecting him.

Mr. Gahutu's story is telling. He is firm to the belief that he got the virus from his wife. "I got married over seventeen years ago and since then I have never had extramarital sex," he says.

The soft-spoken Mr. Gahutu from the western provincial town of Nyamagabe is sure that his wife may not have been faithful. Although they never went for testing before getting married, his first born, a 17-year-old daughter, is HIV negative. Together they have six children.

"This implies that we must have been negative when we got married, but later on when my wife was pregnant two years ago, she tested positive and I was advised to have a test, which came out positive," says Gahutu.

As per the present situation, according to Mr. Mulisa Tom - who deals directly with the legal dimensions of HIV, it is not possible to criminally charge anybody in Rwanda for transmitting the HIV virus because the local criminal law does not provide for it. Mr. Mulisa is the Legal Officer in Charge of Human Rights and HIV/Aids at the National University of Rwanda's Legal Clinic.

Unlike Rwanda however, some countries in this region already have laws to prosecute people that may willfully transmit HIV. But HIV/Aids activists, researchers and the UN Aids Agency - UNAIDS - are not amused.

During the just concluded XVII International AIDS Conference in Mexico, the criminalisation of HIV transmission or exposure was one of the burning topics.

[...]

Trying to solve the problem of growing cases of infections using the courts, activists like Ms Valerie Musemakweli, say will take the fight against the disease back so many years.

Ms Valerie - who has lived with the virus for some 15 years says people who know their sero-status will not reveal it to their spouses or even seek medical support, "and could move to another place where they are not known" just to escape the law.

Sometimes you could get the virus without knowing how you go it, argues Ms Valerie, but you could tell your spouse just because of your conscience to protect them. "But when you are forced to do that by law, somebody may not feel comfortable to do that and therefore just keeps silent for fear the partner may abandon them and tell the whole would about your status".

Evidence difficult to prove

In February this year, Gasana, 29 years, from the Southern Province, was diagnosed HIV positive. His newly wedded bride Jacqueline - aged 22 was found to be negative.

Out of furry, Jacqueline dumped her husband and was encouraged by her family to remarry. Mediation and sensitization about HIV/Aids by the University Legal Clinic encouraged the youthful Jacqueline to return to her husband - but they are living in separate bedrooms.

In a situation where Gasana would have been required by law to tell his wife, it is doubtful - later alone accept to be counseled. Instead, he would have kept quiet with the understanding that if she gets to know, she will leave him.

"If what is needed today is disclosure. Then where does the right to privacy and confidentiality lie", wonders Mr. Mulisa of the University Legal Clinic. Instead, he says mechanisms to educate the public about voluntary disclosure are more feasible, to reduce the wide number of 'potential criminals'.

The law can be helpful in situations where somebody plans and executes the "intention of willfully" transmitting the HIV/Aids virus to another, which can be an offence in criminal justice, according to some experts.

Case in particular could be if a doctor makes it a point to infect a patient with a syringe well aware it has been used by an infected person.

"But the burden of proof in issues where the various modes of transmission are usually practiced in privacy, with individuals who are not minors (by the law of the particular Country) and it was not rape or defilement because the consent of the parties existed", argues Mr. Mulisa.

Intentional transmission

After HIV/Aids, activists say, similar laws would be necessary for diseases like Ebola, Tuberculosis and others where contact with an individual may lead to transmission.

Should there be more legal means to fight HIV/Aids or should governments invest in health care services and reduce transmission through community awareness programmes.

The UN clearly does not want to have a growing trend of criminalising HIV exposure and transmission to go on undeterred.

[...]

Better NOT

In Rwanda, as some activists say, should such a law come to force, the consequences to the fight against HIV/Aids that has brought down prevalence and infection rates, will be history. "No one will ever again take an HIV/Aids test in fear of being suspected to be a PONTENTIAL CRIMINAL", Mr. Mulisa notes.

This law, as he points out, will reverse the current measures where pre-test counseling has led to many people publicly coming out to the public to educate the others and join the campaign to fight the spread of HIV/Aids.



Criminalization of HIV
A growing number of countries are passing or seeking to pass HIV-specific legislation that carry criminal punishments.
By Rebecca Wexler for Diplomatic Courier
27/08/08

At the XVII annual International AIDS Conference in Mexico City last week, leading experts called on countries around the world to reverse course on the adoption of HIV-specific criminal statutes that apply general criminal law to HIV transmission.

In what many delegates referred to as a dangerous trend, a growing number of countries are passing or seeking to pass HIV-specific legislation that can carry punishments ranging from monetary fines to life imprisonment.

While the criminalization of HIV transmission and exposure is hardly a new concept, several high-profile cases in the developed world along with an explosion of poorly crafted and broadly defined legislative endeavors in the developing world have raised alarm bells for international policymakers.

In 2008, an HIV-positive Texas man was sentenced to 35 years in prison for harassing a public servant with a deadly weapon after spitting on a police officer. Although the Center for Disease Control (CDC) has never recorded a case of HIV transmission through saliva, the man was charged with assault because his saliva was deemed a deadly weapon. In a similar example of how such criminal statutes blur the line between risky behaviors and criminal liability, a Zimbabwean immigrant living in Canada this year was sentenced to seven years in prison for aggravated sexual assault after failing to disclose his HIV-positive status to eight women prior to engaging in consensual unprotected sex. None of the women later became infected.

In Africa - where cultural and social constructs pose particular obstacles to tackling the HIV/AIDS epidemic - criminalization legislation has reached a fever pitch in the aftermath of a US-funded Action for West Africa Region HIV/AIDS Project (AWARE-HIV/AIDS) meeting in N’djamena, Chad in 2004.

As part of the meeting, West African parliamentarians drafted what is now known as the N'djamena African Model Law. The law contains some protections, including the guarantee of pre- and post-natal counseling and the right to health care services, but features several troubling provisions. The N'djamena model broadly requires HIV-status disclosure to a "spouse or regular sexual partner" within six weeks of diagnosis and permits mandatory testing of pregnant women, rape victims, and when necessary to "solve a marital dispute."

The N'djamena law also creates the vague offense of willful transmission pertaining to those who transmit the virus "through any means with full knowledge of their HIV-positive status" - a parameter broad enough to include mother-to-child-transmission. The law does not, however, distinguish between those who intend to do harm and those whose behavior can be categorized as reckless or negligent, raising particular questions about the culpability of individuals who might not be aware that they are HIV positive.

Touted by AWARE-HIV/AIDS as addressing "the need for human rights legislation in that region to protect those who are infected and exposed to HIV," the model law has been adopted as the basis of national HIV legislation in nine West and Central African countries. At least six countries in Southern Africa where the burden of HIV/AIDS is the highest are in the process of following suit.

The explosion in the adoption of HIV-specific transmission and exposure laws on the continent - described by some as a "frenetic spasm" of activity - places Africa on the cusp of becoming the most heavily legislated region in the world.

Proponents of these laws point to legal mandates as "powerful weapons of social change," with the potential to both deter reckless and high-risk sexual behavior, and serve as an effective tool of prevention.

In a joint meeting of the AIDS and Rights Alliance for South Africa (ARASA) and Open Society Initiative for Southern Africa (ORISA) policymakers debated the way forward for HIV-specific statutes. At the meeting, supporters of HIV transmission legislation suggested that such laws hold everyone accountable for curbing the spread of HIV, placing the onus of responsibility on both people living with HIV/AIDS to protect their partners, and on non-infected persons to demand safer sex practices and the use of condoms.

Evidence, however, has yet to provide support for the theory that the criminalization of HIV transmission either alters behavior or controls transmission rates. According to a recent commentary in the Journal of the American Medical Association penned by Temple University Beasley School of Law professor Scott Burris and Justice Edwin Cameron of the Supreme Court of Appeals in South Africa, not a single study to date has effectively proven that the threat of criminal prosecution influences condom use.

Of note, Justice Cameron made waves after becoming the first public official in Africa to disclose his HIV-positive status. A qualitative study conducted in the United Kingdom, however, found that criminal prosecution and the accompanying publicity increased perceptions of stigma for people living with HIV/AIDS, undermining public health efforts that stress disclosure, testing, and supportive social environments as cornerstones of controlling HIV transmission.

Stigma and HIV-based discrimination have taken center stage in the debate against criminalization efforts, with opponents arguing that such legislation could paint HIV-positive persons as criminals, deterring them from seeking testing or treatment and making them even less likely to disclose their HIV status for fear of criminal reprisal.

Speaking at the opening session of the UNDP and UNAIDS Secretariat Consultation in Geneva in 2007, Justice Cameron suggested "HIV is treated exceptionally for one over-riding reason: the stigma associated with it as a sexually transmitted infection," adding "no other infectious disease, not even any other sexually transmitted disease, is treated as HIV is treated."

The situation becomes worse for African women, who still exist in male-dominated communities in which the power over sexual relationships and their safety lies in the hands of their husbands and male partners. In many African countries, women do not have the power to demand condom use or fidelity from their husbands without the risk of being beaten or ostracized by their communities. According to a World Health Organization survey, roughly 25% of African women do not disclose their HIV status for fear of being beaten or abandoned.

Further complicating matters, women are often the first to know about their HIV status because of antenatal testing, and are usually blamed for bringing HIV into the home. An unintended consequence of these transmission laws is the exacerbation of these unequal power relations, further marginalizing women and potentially deterring them from seeking counseling or treatment.

Recognizing concerns that transmission statutes are ineffective tools for altering sexual behavior, violate medical privacy rights, and add stigma and fear to a disease that already bears a scarlet letter, UNAIDS earlier this month drafted a new policy brief urging governments to limit criminalization to cases of intentional transmission.

More specifically, the brief calls on legislators and policymakers to reject the application of criminal law to cases in which there is no significant risk of transmission, or in cases where an individual is unaware of his or her HIV positive status, discloses his or her HIV positive status to a sexual partner, or takes reasonable precautions to avoid transmission, such as practicing safer sex.

In the absence of a public health rationale for invoking criminal law against those who transmit HIV, both Justice Cameron and UNAIDS have suggested punishment and retribution are the driving forces of criminal law efforts, adding that safety and prevention must come first.

According to Hon. Justice Michael Kirby of the High Court of Australia "There will be calls for 'law and order' and a 'war on AIDS.' Beware of those who cry out for simple solutions, for [in] combating HIV/AIDS there are none."


Tuesday, 19 August 2008

Uganda/Australia: Two 'HIV-positive people' murdered for alleged HIV exposure or transmission

Two disturbing case reports this week - one from Uganda and one from Australia - highlight the dangers that HIV-positive people face when they disclose (or when others disclose) their HIV status.

In Uganda, a man allegedly hacked his wife of 10 years to death with a machete after he found out he was HIV-positive and blamed his infection on his wife. Report from The Daily Monitor below.

And in Australia, a man stabbed and killed his mother's boyfriend after hearing allegations that he was HIV-positive, even though it's not clear that he actually was. Report from The Australian below.

UPDATE November 24th 2008: A jury has found the Australian man guilty of manslaughter and he was today sentenced to a minimum of five years in jail, according to a report from The Sydney Morning Herald. The Australian reports that "the jury found him not guilty of the more serious charge of murder..."


Man kills wife over HIV infection
Patson Baraire, in Rukungiri
August 15, 2008

Police in Rukungiri have arrested a man who allegedly killed his wife of 10 years by hacking her with a machete after he learnt he was infected with HIV, the virus that causes Aids. The police identified the suspect as Mr Julius Tumwesigye, 30, and said he blamed his infection on his wife.

According to the officer-in-charge of crime in the area, Mr Jackson Mugisha, the suspect stabbed his wife, Glorius Kyarikunda, 25, at 10am on Tuesday in Kikarara Trading Centre in Bwambara Sub-county, Rukungiri District. The couple had two children aged six and four.

Residents, who spoke on condition of anonymity, told Daily Monitor that Kyarikunda had fled to her parent’s home on Sunday after a fight with her husband. The attack is reported to have occurred two days later when Kyarikunda returned with the children to collect her property and found an enraged Tumwesigye.

It was at that point that Mr Tumwesigye allegedly pounced, hacking her to pieces. She died moments later. Mr Tumwesigye, who was by now drenched in his wife’s blood, attempted to run but neighbours, who had been drawn to the homestead by Ms Kyarikunda’s screams, arrested him.

It was the timely intervention of the Police that saved him from the mob that was baying for his blood.

A blood-stained machete was recovered from the scene of the crime. A post-mortem report showed that the deceased died from deep cuts inflicted by sharp object.

Mr Mugisha told Daily Monitor, that such murders seldom happen in Rukungiri. “It is the only murder of the kind that I can recall in a long time,” he said, in a telephone interview. However, murders generally have been on the increase in western Uganda. Several weeks ago, a mentally ill man in Bushenyi hacked his family of six to death before killing himself.

A well known HIV, gender and human rights activist, Dr Lydia Mungherera, who lives openly with HIV, yesterday condemned the attack and called for swift justice. “It is horrific that a woman is hacked to death on being blamed to have infected a man with HIV,” Dr Mungherera said.

“No one knows who infected who in this case. It has become a common practice for women to be blamed in society as the cause of the pandemic. It is very bad to hack a person you have been living together with for long.” Tumwesigye had, by yesterday, not yet been charged.

Dr Eugene Kinyanda, a consultant psychiatrist with the Medical Research Council said Mr Tumwesigye’s act could be due to lack of counselling services in the area.

He said: “Such psychosocial problems that are not attended to eventually result into brutal murders because of delusion. But sometimes it may be due to mental illness or frustration after realising one has contracted HIV.”

According to Mr Moses Muramuzi, a neighbour to Mr Tumwesigye, the suspect had become withdrawn in recent days after discovering that he was HIV positive. “He vowed to deal with his wife whom he accused of bringing it to him,” Mr Muramuzi said. “He claimed he had no outside relationship.”

About a million people in Uganda are living with HIV but activists warn of increasing attacks, especially within homes. At a recent workshop held in Soroti, the Regional Manager of the charity ActionAid Uganda, Ms Ann Akwango, said violence against women living with HIV and Aids is increasing and revealed that statistics from Pallisa District had indicated 100 out of 465 HIV-positive women questioned during a survey earlier this year, had experienced some form of violence after revealing their status to their husbands.

It is feared that this type of violence will scare partners from revealing their status, drive the epidemic underground and lead to increasing infection and deaths from people afraid to seek professional care and support.


Man 'stabbed mum's lover over HIV claim'
The Australian
August 18, 2008

A SYDNEY man has admitted to stabbing but not murdering his mother's boyfriend after hearing claims her lover was HIV positive, a jury has been told.

In the Crown's opening address in the New South Wales Supreme Court today, Chris Maxwell QC said Jason Podesta had admitted stabbing Steven Bannister on November 22, 2006.

But, he said, the issue for the jury would be whether Mr Podesta had a "substantial mental impairment'' at the time, which would enable him to be found guilty of manslaughter.

Mr Podesta, of Liverpool and who was 19 at the time of the killing, has denied murdering Mr Bannister.

Mr Maxwell said the Crown believed the jury would return a verdict of murder.

The body of Mr Bannister, dressed only in tracksuit pants and joggers, was found on the footpath at Casula, in Sydney's southwest, on November 22, 2006.

Mr Maxwell said Mr Podesta's mother, Cathy, who was in her early 40s, had been in a relationship for at least several years with Mr Bannister.

He said mr Podesta told police his mother received a number of apparent prank phone calls on her mobile phone the night before 24-year-old Mr Bannister's death.

"The calls related apparently to the sexual activities of Cathy Podesta's boyfriend, Steven Bannister, and included ... that it was believed he was HIV positive,'' he said.

"In the interview, the accused said his mother was extremely upset about the calls and the fact she may have contracted the disease.''

Mr Maxwell is continuing his opening address before Justice Lucy McCallum.

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