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.
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.