Draft Ugandan HIV legislation undermines human rights

Roger Pebody
Published: 10 November 2009

A draft bill to be considered by the Ugandan parliament includes clauses for the mandatory HIV testing of pregnant women, drug users and sex workers, while also giving loosely defined powers to medical practitioners to disclose people’s status.

In a report last week, Human Rights Watch condemned the bill as promoting dangerous, discredited and repressive approaches that would threaten progress towards the goal of universal access to prevention, care and treatment.

“We know what works and what doesn't in fighting HIV,” said Beatrice Were of the Uganda Network on Law, Ethics & HIV/AIDS. “This bill, unfortunately, is full of ineffective approaches that violate human rights and will set us back in our efforts to fight the AIDS epidemic and expand HIV programs nationwide.”

The bill includes the following provisions:

  • Whereas in general an individual should give informed consent for HIV testing, if this is “unreasonably withheld”, consent may be dispensed with.
  • Moreover, pregnant women, partners of pregnant women and victims of sexual offences “shall be subjected to a routine HIV test”. For these groups, consent, confidentiality and counselling are not mentioned.
  • Individuals convicted of prostitution, drug use, or possession of a needle, as well as those charged with a sexual offence shall also be subject to mandatory testing.
  • Medical practitioners can disclose a patient’s status to sexual partners and other close contacts if the medical practitioner believes there is a “clear and present danger of HIV transmission to that person”.
  • Both the intentional and the attempted transmission of HIV are criminal offences.
  • A person with HIV who fails to “observe instructions on prevention and treatment” commits a criminal offence.

Human Rights Watch’s report, endorsed by a wide range of organisations in Uganda and elsewhere, notes that the mandatory testing provisions will often threaten the health of those tested, especially women. “My fear is that mandatory testing and disclosure will lead to prosecution and violence instead of treatment and care,” commented Joseph Amon of Human Rights Watch.

The organisation believes that the mandatory testing of sex workers and drug users will add to a body of repressive criminal law in Uganda (including recent legislation targeting gay men) that will make healthcare provision for marginalized groups particularly challenging.

Moreover, the report points out that many of the provisions are drafted in ways which are imprecise, overly broad, and lack clear safeguards or procedures. This could lead to the law being applied in selective or abusive ways.