HIV bill: here’s what constitutes a crime

The clause is essentially saying that if you want to play safe so that nobody in future accuses you of intentionally infecting anybody, all you need to do is to avoid taking the HIV test - Dr Vinand Nantulya

For weeks the HIV and Aids Prevention and Control Bill has been hotly debated by experts and MPs, but early voting on controversial clauses last week show that scientists have so far lost the decriminalisation battle.

If the draft legislation is passed in much of its current form, it is likely to put President Museveni in a rather tricky position because he signed a more satinised version of a similar law at the regional level last year.

President Museveni, who would be expected to assent to the act before it becomes law, signed the East African Community HIV and Aids Prevention and Management Act last year, which does not criminalise HIV but instead prohibits discrimination of HIV positive people. The regional law conforms to international standards on HIV testing and treatment.

The regional law conflicts with clauses in the local HIV bill currently before parliament, which criminalise intentional transmission of HIV. Parliament Speaker Rebecca Kadaga is a strong advocate of the contentious private member’s bill, which was introduced in parliament on April 30, 2010.

The most contentious clause, which has most public health specialised organisations such as World Health Organisation up in arms, is 41 covering intentional transmission of HIV.

Clause 41 states that a person who wilfully and intentionally transmits HIV to another person commits an offence. The ultimate penalty on conviction is 10 years in jail or a fine of Shs 5m or both.

What the clause does is put the burden of prevention on the HIV positive person, leaving the negative person with no responsibility to protect herself. Related to it is clause 39, which provides for attempted transmission of HIV.

According to the clause, a person who attempts to transmit HIV to another person commits a felony and faces a five-year jail term. Some committee members wondered how an attempt to transmit HIV would be determined.

Felix Okot Ogong said this clause would pit partners in discordant relationships against each other. But the speaker said courts will determine the measure of attempt to transmit HIV. This particular clause was passed amid protests.

“The clause is essentially saying that if you want to play safe so that nobody in future accuses you of intentionally infecting anybody, all you need to do is to avoid taking the HIV test. You cannot be convicted unless you know your status. It will be impossible to determine that the virus from the presumed victim is exactly identical to that isolated from the accused as the virus keeps changing. So the scientific basis for enforcement of this clause is also wanting,” Dr Vinand Nantulya, the chairperson of Uganda Aids Commission, said in an interview last week.

Kadaga said parliament cannot stop legislating on HIV because of a lack of technology. She said technology will catch up with the law.

Sexual offenders

Clause 13 on HIV testing for purposes of criminal proceedings states that a person convicted of drug abuse, sexual offences or prostitution shall be subjected to HIV tests for purposes of criminal proceedings and investigations.

Activists, however, argue that if people have already been convicted of offenses under the penal code, why add HIV to their offences. The committee deferred the clause to a later debate.

Clause 14 recommends routine HIV testing for victims of sexual offences, pregnant women and their partners. However, MP Nathan Nandala-Mafabi wondered why the partner of a pregnant woman will be forced to go for routine testing when it has failed in the prevention of mother to child transmission (PMTCT) campaign.

He suggested that the clause be removed from the bill. David Bahati suggested that clause 14 should include mandatory testing for couples intending to get married in church or mosque so that people go into marriage when they know their status.

“Why don’t we just go back to voluntary testing of everybody? Why would forcing people work when only 35% of Ugandans have tested voluntarily? If men are already hiring mercenaries to go and test with their wives, how then will we do this when the partner is unwilling to come?” Diana Nanjeho, programme manager of the Uganda Network on Law, Ethics and HIV/AIDS (UGANET), said on May 8.

The clause was nevertheless passed without amendment.

Results disclosure

Clause 19 (2d) states that results of an HIV test may be disclosed to any other person as may be authorised by a court.  Section 3 also states that a parent or guardian of a minor who tests HIV positive shall inform the minor of his or her status as soon as it is practical. UGANET’s Nanjeho wonders how reasonable time to inform minors would be determined.

Clause 21 (e) on exception of confidentiality proposes that a person may disclose information concerning an HIV test where to any other person with whom an HIV infected person is in close or continuous contact, including but not limited to a sexual partner, if the nature of the contact, in the opinion of the medical practitioner, presents a danger of HIV transmission to that person.

This clause, activists point out, breach the doctor-patient confidentially code of conduct. If a patient has 10 caretakers in hospital, would all of them be informed?
Would workmates, drivers, housemaids, medical workers all be informed?

The committee recommended that the entire clause be deleted and be merged with Clause 19 because it is too open and is likely to be abused and to discourage people from seeking HIV counselling and testing. However, the plenary chose to pass it as it is.

Partner notification

Clause 23 provides for partner notification. According to the clause, a medical practitioner who carries out an HIV test can notify the sexual partner of a person who tests HIV positive where he or she believes that the HIV positive person poses a risk of HIV transmission to the partner and the HIV positive person has failed to inform the partner.

“If a pregnant woman came to the medical unit without the husband, why would you disclose to her husband who doesn’t want to come? It’s the woman who interfaces with the health centre first, so she is the one who knows her status first and if the husband is informed, how many women will end up in divorce or on the streets?” Nanjeho wondered.

The clause was eventually removed from the bill. In clause 28, a sub-section was inserted, proposing that the National Aids Trust Fund will be run by the ministry of Health. The fund is intended to enhance government budgetary allocations as well as contributions from development partners for ARVs. Already, Uganda Aids Commission is mandated to mobilise, expedite and monitor resources for the Aids control programmes and activities.

“At Uganda Aids Commission, we have already established a mechanism for managing such trust funds, which is working well with high credibility. The commission therefore begs to differ on this proposed arrangement to send such a fund to the ministry of Health,” Nantulya said.

Parliament nevertheless passed that particular clause. Whether the bill will be assented to by the president after it has been passed remains to be seen. However, most Aids activists and medical workers are united in the belief that the undisputed gains Uganda has made in the fight against HIV/ Aids are at stake.

The number of new infections last year dropped to 140,000 from 160,000 in 2011. The number of babies born with HIV dropped to 9,000 from 28,000 in 2011. The number of people on ARVs almost doubled to 600,000, from 356,000.

And mortality rates due to Aids related conditions dropped to 56,000 in 2013, compared to 66,000 in 2011. Nantulya advises that the responsibility of protection against HIV should be placed on all individuals because it is in one’s own interest to know his/her HIV status so that they remain HIV negative or get treatment if positive.

smwesigye@observer.ug