Failure to tell your HIV status could land you in jail

By Rukia Makuma

Each one of us has lost a relative, parent, spouse, sibling or friend to HIV/AIDS. December 1 was World AIDS Day and people from all walks of life came together to commemorate the day and to think of a way forward about the pandemic. The commemoration is a reminder that HIV has not gone away, is still consuming tens of thousands of lives worldwide every year and that there are many things still undone in the fight against the scourge.

This years commemoration in Uganda coincided with the time Parliament is planning to pass a Bill on prevention and control of HIV/AIDS. According to a report from UNAIDS, Uganda has the second highest HIV prevalence among adults aged between 15 and 48 years in the world. Out of the 33.4 million people living with HIV worldwide, Uganda accounts for 1.1 million.

The new Bill provides for mandatory routine HIV testing for pregnant women and their partners and victims of sexual offences, mandatory notification and disclosure of ones sero-status to their sexual partners, criminalisation of HIV transmission, discrimination, breach of confidentiality among others.

However this has provoked protests from 50 Ugandan and international organisations and activists who say that  clause 14 of the HIV/AIDS Prevention and Control Bill which calls for mandatory routine HIV testing offends the international conditions of the 3Cs [confidential, counselling and consent]. The activists argue that HIV testing should be confidential, accompanied by counselling and should be conducted only with informed consent. In this case however mandatory testing means individuals must comply with the law. The anti-HIV/AIDS Bill activists say this violates confidentiality of a persons sickness.

However, despite calling for mandatory routine testing, the Bill recognises and supports the right to medical confidentiality of people living with HIV/AIDS, an approach that is consistent with international standards. The Human Rights Watch counters that several exceptions to confidentiality outlined in Clause 21 of the Bill might violate the confidentiality rights of people living with HIV.

The Bill obliges people to disclose their HIV status to their sexual partners before having sex. Failure to do so is punishable by a fine or imprisonment if they infect their partners. It also punishes a medical practitioner or any qualified officer who carries out the test and reasonably believes that the HIV-positive person may infect his/her partner but fails or declines to inform the person likely to be infected.  The Human Rights Watch contends that this contravenes the principle of confidentiality of medical information where a persons medical condition may not be arbitrary disclosed to third persons without the consent of the individual concerned.

Similarly article 30 (5) of the Health Service Commission Act 2001 states: A health worker shall respect the confidentiality of information relating to a patient. Is disclosure of a persons sexual life in public interest? Or wont a court order in this respect tantamount to infringing on the persons privacy?

Clause 40 of the Bill states: Any person who willfully and intentionally transmits HIV to another person commits an offence, and upon conviction shall be liable to life imprisonment. The arguments given against this provision is that it may divert attention from measures urgently needed to combat the pandemic such as effective prevention, protection against discrimination, reduced stigma, greater access to testing and treatment. Some activists claim that the law demonises people who have HIV, exacerbating the existing stigma associated with the illness. This, they claim, can deter people from seeking treatment for fear of being prosecuted.

However despite the arguments for or against the Bill, the proposed law has its own big hurdles to jump if it is to achieve the purpose for which it was created.

There is no technology to determine who infected the other yet it calls for prosecution of the person who transmits the HIV onto the other. In the event that both partners did not test for HIV or did not disclose their sero-status before engaging in sexual intercourse, how will the prosecution prove who transmitted the virus to the other or willfully infected the other?

Civil Society Organisations argue that as a practical matter, criminalisation distracts the major objective of the Bill and may defeat or delay its implementation. Indeed, the controversy caused by the insertion of this provision in an HIV Bill has already been felt in neighbouring Kenya where the operation of Section 24 of the HIV law (on criminalisation) has been suspended while the rest of the law has come into force.

Uganda’s HIV Bill stipulates that a person convicted for discriminatory acts faces imprisonment for up to five years or a fine of Shs 400,000 (US$200). The one convicted for breach of confidentiality faces at least six months of imprisonment or a fine of Shs1 million (US$500). This law also prosecutes scientists reporting about the AIDS vaccine and religious leaders and politicians who decampaign use of condom.

Dr Saul Onyango, an HIV/AIDS specialist at Uganda AIDS Commission in Ntinda, said the there is no need for alarm yet because the Bill is not yet law. He said the focus should be on issues such as capacity building and improvement in service delivery systems which can combat the pandemic.

At a dialogue organised by Uganda AIDS Commission at Imperial Royal Hotel in on November 10, Dr Jesse Kagimba of Uganda AIDS Commission said there is need to invoke more fear among people about HIV/AIDS because they have become used to it after living with it for about 20 years. He argued that training people, having good roads and improving the economy will all amount to nothing if people continue dying of AIDS and cannot live to enjoy these developments.

The Bill will soon be tabled before parliament. But if it becomes law, will it achieve its purpose? Time will tell.