Tuesday, May 3, 2011

Criminal Liability for the Transmission of HIV/AIDS is Counter- Productive:

The HIV/AIDS Prevention and Control Bill 2009 has been tabled for the 1st reading in Parliament today. Among others, the Bill provides for criminal penalty for risk and intentional transmission of the virus. If enacted, the proposed law would require mandatory disclosure of one’s HIV status; failure of which would be regarded as ‘criminal’ and attempting to or, intentionally transmitting the virus. Failure to use a condom where one knows their HIV status would constitute a criminal offence making them liable for prosecution.
Given the history of this country and it’s undoubted, contribution to the HIV struggle that was all inclusive of local communities, religious institutions, civil society, private sector and Development Partners; why would government or any progressive citizen consider this proposed law as an effective tool of responding to the epidemic now?
It was a call to all Ugandans for a united effort, openness in addressing the epidemic, clear and consistent messages, and stewardship by his Excellency the President that reduced incidence levels and won the country global recognition. Disappointingly now, some Government leaders, perhaps frustrated by stagnant prevalence rates, are instead considering a punitive law with a veiled hope that it would prevent and control the epidemic.
Instituting criminal laws to punish persons who may or may not transmit HIV virus poses a danger to the consolidated effort and lessons learnt over time. It is difficult to see the rationale underlying the intended legislation. In strategic terms, this bill is likely to have a counterproductive effect by stalling ongoing efforts at best and increasing infection rates at worst.
The Civil Society HIV Bill Coalition is troubled with some provisions in the proposed legislation and this is why:

1. The law when enacted will drive people underground; in the face of possible prosecution and forced disclosure, most people will hide away, there would be no reason to take an HIV test in fear of prosecution.

2. It shall be counter-productive - as people shun HIV services and treatment for all possible fears that arise with the provisions of the law, prevention and control cannot be achieved. Taking an HIV test is the beginning point for both control and prevention, however the Bill will deter this effort by empowering medical practitioners to release test results to third parties.

3. It will indiscriminately harass women – most women get to know their HIV status before their male counterparts as they interface with medical facilities more often. Giving them an extra burden to disclose their status mandatorily as a blanket requirement may subject them to violence, abandonment and abuse as they are usually blamed for bringing the virus. In our societies, women cannot easily negotiate sex nor condom use, yet failure to use one while they know their status will warrant such a woman punishment for intentional transmission of the HIV virus.

4. May breakdown families who are already vulnerable. Opening a window for prosecution will encourage family breakdowns where one partner who gets to know their status, blames it on the other and files a case in court. Intentional transmission may never get proved, but the family structure will have been distorted, partners desert each other with the consequent burden born by the poor orphans. HIV status is bad enough for the children but humiliating and sometimes vicious litigation between parents tears their lives apart.

5. Is not situation-specific or realistic: the conditions for this law to operate are not realistic, it is extremely difficult to prove who infected the other and therefore it is to no effect. The judiciary in this country is very much strained and it takes long to pass judgment. How many lives would be destroyed if it takes an average 5 to 7 years to get judgment? Worse, the Police force is ineffective and is known to fail to comprehend and prosecute cases of this nature.

6. Selective prosecution: The bill targets the 20% of Ugandans that have tested and know their status and presumes that some of those knowingly and intentionally transmit HIV. What about the rest of the population who do not know their status yet transmit and cannot be found in the ambit of this law? This is unfair, obnoxious and unreasonable and cannot possibly be regarded as an efficacious law.

7. Increased stigma and discrimination. The moment HIV is construed with criminalization and then people go into hiding, those living with HIV will suffer societal victimization since they would now be regarded as threats to public health. As a nation, we can still do better since on this one, we are all in it together.

The fears and risks mentioned above are shared by stakeholders across the spectrum – medical/health workers, human rights activists, Persons Living with HIV, agencies working in this area and the SADC region.
Despite efforts by the Civil Society Coalition to point out the pitfalls in the Bill to, the issue of criminalization has remained.

An effective national legal response is that which is designed to meet specific needs of the country, those that target particular situations that make people vulnerable to HIV and its impact and, use of particular strengths of the country’s people, institutions and experience. An effective response must address the epidemic’s likely consequence on individuals, families and the society’s over all development plans.

Prevention of HIV should be a shared responsibility of those who are positive and know their status and those who are negative or sero-bllind.
This is an urgent call; that if indeed the intention of this bill is to prevent and control HIV, members of Parliament should delete provisions that attract criminal liability.

(This statement has been issued by the joint Civil Society Coalition advocating for an appropriate HIV/AIDS legislation)


1 comment:

  1. The day women have a job, forced marriage is banned and prosecuted, women will be in a position to survive on their own and not take risks with unfaithful husband or forced unprotected sex ..

    Since it is difficult to expect from men faithful and responsible behaviour all over the world and even more so in some countries


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