Joint Statement by Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) Persons on HIV and AIDS Prevention and Control Bill, 2010
AIDS is no longer [just] a disease. It is a human rights issue — Nelson Mandela
When we discuss a contentious subject like homosexuality, we need to do so recognising that we are talking about human beings…We also need to realise that we live in a large world, not a narrow Uganda…(in) my opinion as a pediatrician and medical doctor who has studied the subject of homosexuality, I can tell you that homosexuality is not an acquired condition. — Dr. Munini Mulera
Recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world. — Universal Declaration of Human Rights
This memorandum is by the Uganda Health and Science Press Association(UHSPA-Uganda) which is a registered LGBTIQ network of groups and individuals that work to promote health rights of vulnerable and minority groups, put an end to homophobia ,as well as stream line minority concerns in all Uganda’s public health policies and laws.
UHSPA-Uganda also addresses media defamation of Lesbians, Gays, Bisexuals, Transgenders and Intersex Ugandans to stop Public incitement to hate related crimes
This position statement was born of a consultative meeting convened by UHSPA on Friday, February 4, 2011 at Ivy’s Hotel, Kampala to seek the views of LGBTI Persons and other key stakeholders on the HIV and AIDS Prevention and Control Bill. It is upon this mandate that we present this Memorandum our concerns as regards the HIV and AIDS Prevention and Control Bill (hereinafter referred to as “the Bill”).
The purpose of this statement is to provide the Parliament of Uganda with a reasoned analysis of the Bill from an LGBTI perspective so as to ensure that the deliberation over this bill is an informed process and that the eventual result is a law that actually prevents and controls the spread of HIV.
1. LGBTI Persons’ Solidarity With the Wider Civil Society Concerned by the HIV/AIDS
To begin with, we fully associate ourselves with the Joint Civil Society Statement on the Draft HIV/AIDS Prevention and Control Bill, which we had the opportunity of contributing to and which has already been presented to Parliament.
We share the opinion, expressed in that joint statement, that a law on HIV/AIDS is not only desirable but is actually necessary and long overdue in view of this country’s long and sad experience with the scourge of HIV/AIDS.
Our concern therefore is as regards the substance of this law and whether it captures best practices in curbing the spread of HIV. As direct stakeholders in the fight against the spread of HIV, we are anxious to see that this law is evidence-based, founded on proper research and clear scientific information about what drives the epidemic and informed by an understanding that any interventions in the area should have human rights at their core. We are concerned that a law that is based on populism, moral outrage or religious feeling as opposed to being evidence-based and human rights centred runs the risk of becoming a driver of the epidemic as opposed to a part of the solution.
We agree that human rights should be at the centre of the bill not only because it has been shown that those public health policies that ignore human rights are ultimately ineffective, but also because the state, its organs and government (including the parliament) are under a duty to respect, promote and fulfil human rights.
We agree that the spread of HIV has implicated a range of rights, including but not limited to the rights to:- life; non-discrimination and equality before the law; health; movement; work; property; privacy and others and that while under our Constitutional dispensation (Art. 43) these rights can be limited in public interest or by the rights of others, the innovation of the 1995 Constitution was that this is a narrow and restricted limitation, and any restrictions on human rights must be shown to be acceptable and demonstrably justifiable in a free and democratic society.
Finally, as is reflected in the Joint Civil Society statement, we agree that while the Bill does contain some rights-enhancing provisions as pointed out therein, it falls short of being the most appropriate and efficacious law we can have to prevent the spread of HIV. In addition to the observations on the Title of the Bill; its Objectives; its provisions on non-discrimination (Sections 31-38) and access to Prevention, Care and Treatment (Sections 27, 36 and 37), we wish to add our voices in opposition to the bill’s proposals on:
* Mandatory testing (Sections 13, 14, 15 and 17);
* Mandatory or unauthorized disclosure of HIV Status testing (Sections 4 (2), 9 (2), 12, 19 (2), 21, 22, 23 and 25 (3)); and
* Criminalization of Intentional Transmission of HIV/AIDS (Sections 39 and 41)
We strongly believe, for the various reasons put forward in the Joint Civil Society Statement, that these provisions have no place in a law that seeks to effectively curb the spread of HIV.
The purpose of this additional statement therefore is not to take away from anything contained in the Joint Civil Statement on the HIV/AIDS bill but to amplify and emphasize the concerns expressed therein as well as to highlight specific issues that are of concern to us as LGBTI persons who are entitled to the same rights to life and health as other Ugandans in the context of the HIV scourge.
2. The Legal Framework and Its Effect on HIV/AIDS
Uganda’s penal law, in particular S.145 of the Penal Code Act, makes sexual intercourse between consenting adults of the same sex a crime, and it is apparently in this spirit that the Bill specifically provides for the mandatory HIV testing of LGBTI persons engaging in same sex practices when it provides for such testing “for purposes of criminal proceedings and investigations” (Section 13 (c)).
To properly understand the nature of the legal framework and its impact on the spread of HIV, we have to go back in time to 1950 when the Penal Code Ordinance was introduced in the Uganda Protectorate under the authority of S.15 (2) of the 1902 of the Uganda Order-in-Council. This latter provision enabled the application to the Uganda protectorate of laws in the United Kingdom and its other colonies as they existed on or before 11th August 1902. It was on this basis that the Indian Penal Code Act was extended and applied in Uganda in 1950. It is this law that today exists as the Uganda Penal Code Act, Cap 120. The original ordinance of 1950 contained the first penal provisions on “carnal knowledge…against the order of nature” and it is these provisions that have been retained in the current law under Sections 145 and 146 of the Penal Code Act, and which attract a maximum sentence of life imprisonment. It is also these same provisions that are sought to be amplified and expounded by the Anti-Homosexuality Bill currently under consideration by the Parliament of Uganda, including a proposal to increase the punishment in certain cases (such as for ‘repeat offenders’) to death.
These offences are places in Chapter XIV of the Penal Code entitled “Offences against Morality”. The problem is that sex work is placed among such offences as defilement, rape, abduction and such other crimes which involve serious violations of personal integrity. The effect of this is to equate LGBTI persons with rapists and defilers, which further inflames societal prejudices and makes it difficult for us to access health and other services on an equal basis with others. This situation has been highlighted by the findings of a study conducted in Uganda on the link between these penal provisions and the social exclusion of LGBTI persons which noted that:
Sexual minorities are subjected to discrimination and homophobia in all aspects of life and health workers are not exempt from the general prejudices of society. Meeting the public healthcare system is often a humiliating and uncomfortable experience for queer women. They run the risk of being exposed and ridiculed, subjected to degrading or harmful treatment, refused because of their identity or receive counseling and treatment meant for heterosexual women.
The criminalization of sex between consenting adults is not only unpractical and hypocritical, but it also dehumanizes and stigmatizes those who engage it. A few questions come to mind – how would the evidence to sustain such a prosecution be obtained without a gross violation of the privacy of adult citizens of the country? Secondly, what purposes would such a trial or conviction serve? Thirdly, are the resources of our country best spent monitoring the sexual activities of adults? Fourthly, if the state is to engage in the policing of sex, then would the dictates of equal treatment not demand that the activities of heterosexual couples, including oral sex, not also be investigated with equal vigor?
The above considerations aside, the extent and scale of the HIV/AIDS scourge as well as an analysis of what is driving and fuelling the epidemic merit a reconsideration of these old colonial penal laws against same sex practices. It is axiomatic that HIV is mainly spread through sexual intercourse. This means that those who regularly engage in sex are at higher risk of contracting the virus. At the same time, it has been shown that safe sex practices, especially the proper use of condoms, can significantly reduce or remove altogether the risk of spreading or contracting the virus through sexual intercourse.
It therefore appears straightforward that the way to control the spread of HIV is to promote safe sex practices and not to moralize the epidemic. It should be remembered that Uganda’s early success in the fight against HIV/AIDS was achieved by an open, honest and pragmatic approach that promote truth and mature discourse over hypocrisy and denial. As such Uganda was able to drastically reduce HIV prevalence at a time that in the majority of the world was seeing an increase. Evidently, when it comes to fighting HIV, acceptance and openness is to be preferred over denial and hypocrisy. In the context of LGBTI persons an open approach would include a recognition on the part of the government that there are men who are having sex with men (MSM), women who are having sex with women (WSW) and persons who are having sex with both men and women (Bisexuals). Such recognition would allow for public health responses to address health concerns particular to the needs of these groups such as the need for dental dams for WSW and water-based lubricants for MSM to mention but a few.
It should be emphasized and re-emphasized continuously that law and policy have a direct impact on the spread of HIV. Good laws can reduce the spread of HIV, and bad laws can serve as a significant driver of the virus. In Uganda, apart from the progressive policy on HIV/AIDS that existed for a long time regarding the general population, the laws and policies regarding same sex practices have been, as shown above, historically retrogressive and have served to condemn LGBTI persons to death as effectively as if they had been hanged in execution of a court order. This is clear from a comparison of HIV prevalence in the general population with that among the LGBTI community. According to 2007 statistics from the Uganda AIDS Commission, HIV/AIDS has claimed one million lives over a span of two decades since the first case was discovered in Rakai in 1982, and currently about one million people (6.4% of adults and 0.7% of children) are infected with the virus. On the other hand, according to the Crane Survey joint conducted between 2008 and 2009 by the School on Public Health of Makerere University and the AIDS Control Programme of the Ministry of Public Health, with funding from the US Government’s PEPFAR programme, HIV prevalence rate among MSMs in Uganda stands at 13.2%! This suggests that MSMs are twice as likely to be infected with HIV as the general population.
It should be stressed that this higher prevalence is not because MSMs engage in behavior which is riskier than that of the general population, but rather that the sexual activity they engage in has been arbitrarily declared illegal, rendering them criminals and excluding them from the a range of public health initiatives available to the general population. The criminalization of same sex activity makes LGBTI persons a target population, unable to effectively access medical services that are relevant to our needs and vulnerable to stigma and discrimination as well as blackmail and extortion that make us an effectively invisible population in terms of access to the range of social services and justice necessary to address the issue of HIV and AIDS in our population. These factors, based squarely on the repressive and outdated criminal law on same sex practice, are what are driving the epidemic among our number. Although the Ministry of Health (MoH) and the Uganda AIDS Commission (UAC) have acknowledged this reality and have established the Most at Risk Populations Initiative (MARPI) which aims at meeting the HIV Prevention, Treatment and Care needs of vulnerable groups, including LGBTI persons, this and other such initiatives cannot be fully effective in a hypocritical legal environment that denies our existence and criminalizes our work and creates a hostile working environment that is inimical to HIV/AIDS prevention.
The key question becomes whether LGBTI persons should be left to bear the brunt of an HIV prevalence rate that is twice the national average, or whether positive legislative steps can and should be taken, based on evidence and research, to address the health needs of our community as part of he national response to HIV. If parliament is tempted to ignore the needs of LGBTI persons or feels compelled by moral concerns to pretend that our community does not exist, then we ask you to consider the following statistics that have emerged from the Crane Survey Report referred to above. Of the population of Men who have Sex with Men (MSM) that was studied in the survey period:
* 31% of them had ever been married and 20% of them were currently married;
* 78% of them had ever had sex with a woman;
* 44% had ever lived with a female sex partner;
* 16% were currently living with a female sex partner and
* 29% had fathered children.
The point is simple – like it or not, there are men who are having sex with men in Uganda, and these men are also having sex with women. The simple implication of this is that it is futile to respond to HIV on the assumption that the “sexual network” is composed only of Jane having sex with Peter who is having sex with Mary, while the actual picture is that at times the Peters and Johns in Uganda are also having sex with Paul and Steven! We should re-emphasize that, in matters of public health, we should be driven by evidence and the reality on the ground, and not by moral considerations which hinder comprehensive and decisive public health initiatives.
3. The Problem with the HIV/AIDS Bill
The problem with the HIV/AIDS Bill as it is currently framed is that is continues the hypocrisy described above and will kill off tentative initiatives by the MoH, UAC and other stakeholders who have begun to appreciate that you cannot ‘fight’ AIDS by fighting people.
The Most at Risk Populations Initiative recognizes that the enemy is the virus that causes AIDS and that extending Prevention, Care and Treatment services to LGBTI persons is an effective means of reducing the spread of HIV in the general population. In effect, the initiative is an acknowledgement by these public bodies that criminal laws on same sex practices are counterproductive and that dialogue and engagement are the answer. As such, the real problem with Section 13 it uses the old public health approach which ignored the realities in society, by purporting to create an ‘us’ and ‘them’ scenario – where ‘good’ people are distinguished from ‘bad’ people and the former are given preference over the latter. As highlighted above using statistics from the Crane Survey, the futility of this approach is that LGBTI persons are part of society and that, in particular a large number of men who are having sex with men are also having sex with women. As such common sense dictates that if HIV is to be comprehensively addressed, same sex activity has to be taken into account, from the perspective of public health and NOT from a criminal or punitive stance.
In addition to the specific problem with Section 13 and its provisions for mandatory testing “for purposes of criminal proceedings and investigations” is the general problem throughout the Bill which is SILENCE as far as Prevention, Treatment and Care services among LGBTI persons and other vulnerable groups are concerned. As such, although the Bill calls for non-discrimination (Sections 31-38), it negatively discriminates against LGBTI persons by failing to be responsive to our needs, and by subjecting us to mandatory testing as criminals among other things. If we are considered criminals, how then can we access the promise of government provided Prevention, Care and Treatment as provided for under Sections 27, 36 and 37? Taken together with the current Sections 145 and 146 of the Penal Code Act, Cap 20, as well as with the various pernicious provisions in the Anti-Homosexuality Bill, the silence in the HIV and AIDS Prevention and Control Bill seems to be a tacit endorsement of the criminalisation of same sex practice to the detriment of the health and life of LGBTI persons in the context of the HIV. This is a strange circumstance given that the long title of the Bill expresses the Bill as being intended, among other things, to “provide for the prevention and control of HIV and AIDS”. If the actual intention was to provide for the prevention and control of HIV and AIDS among heterosexual Ugandans, then we ask you to consider the findings of the Crane Survey report that noted, among other statistics, that 20% of men having sex with men are currently married and that 29% of them have fathered children! Clearly, LGBTI persons are an undeniable part of Ugandan society and the national HIV and AIDS response, including the Bill under consideration, can either be realistic and pragmatic with regard to these facts, or follow the path of the Ostrich in burying our collective heads in the sand.
4. What is the Way Forward
Assuming, if no other reason than ultimate self-preservation, that you are desirous of reducing the prevalence of HIV among LGBTI persons and that you are serious about reducing the spread of HIV within the country, then there is no alternative but to decriminalize same sex practices completely. This would be in line with the approach increasingly adopted by countries that have realized the link between the criminalization of sex between consenting adults of the same sex and the spread of HIV. Indeed, India which like Uganda inherited anti-sodomy provisions from the United Kingdom as part of its Penal Code has recently had a high court decision, Naz Foundation v. Govt. of NCT of Delhi (Delhi High Court 2009) to the effect that such criminal laws not only violate the right to privacy but also pose a significant challenge to public health. If we may quote from the decision of that court with regard to S.377 of the Indian Penal Code Act (equivalent to our Sections 145 and 146):
Section 377 IPC adversely contributes to pushing the infliction underground, make risky sexual practices go unnoticed and unaddressed. Section 377 IPC thus hampers HIV/AIDS prevention efforts. Lastly, as held earlier, it is not within the constitutional competence of the State to invade the privacy of citizens’ lives or regulate conduct to which the citizen alone is concerned solely on the basis of public morals. The criminalisation of private sexual relations between consenting adults absent any evidence of serious harm deems the provision’s objective both arbitrary and unreasonable…The discrimination severely affects the rights and interests of homosexuals and deeply impairs their dignity. [pp.76-77 of the Judgment, emphasis added]
Uganda would do well to realize, as India has done, the clear link between the criminalisation of private sexual relations between consenting adults and the spread of HIV and AIDS and take similarly bold steps to allow the law to reflect reality and clear evidence as opposed to having an HIV Bill grounded in fear and ignorance.
Such an approach would open up a myriad of possibilities in terms of approaches to prevention, treatment and care that are relevant to the needs of LGBTI persons and ultimately to those of the general populations. This would also allow medical workers and scientists in the area the freedom to carry out research as opposed to an atmosphere of fear which stifles any enquiry and hampers efforts to extend health services to marginalized populations. A clear example of the potential benefits to be obtained from an open and free legal environment for LGBTI persons are the recently published results of a survey conducted in South Africa, Brazil, Ecuador, Peru, Thailand and the United States between July 2007 and December 2009 which found that the daily intake of an antiretroviral drug called Truvada can reduce risk of HIV infection rate by nearly 44 percent for gay men. Such research and the resulting public health interventions that can stem from it can only happen in an atmosphere where same sex activity is not criminalized and where doctors and researchers are free to treat LGBTI persons as human beings and not as criminals.
We are aware of the cultural context of Uganda and are also cognizant of prevailing societal opinions regarding homosexuality. As such we appreciate that a gradual and sensitive approach may be necessary regarding creating a more conducive legal framework to protect LGBTI persons from HIV. At the same time however, there is never a perfect time to promote and protect human rights, and at times the Parliament or the Courts must take a lead to this and hope that society follows their lead. Parliament cannot and should not cite societal disapprobation as an excuse for not taking effective steps to protect LGBTI persons from contracting HIV. After all, human rights cannot be subjected to referenda or opinion polls. Uganda has already had the sad experience of seeing many of its people die from AIDS when drugs could have been made available to save their lives – a situation articulately described in Dr. Peter Mugyenyi’s ground breaking book entitled Genocide by Denial: How Profiteering from HIV/AIDS Killed Millions. Parliament should not stand by and allow the other genocide by denial that is currently taking place – where a legal framework is systematically killing off a section of Ugandans by unnecessarily making them vulnerable to contracting HIV.
However, as a starting point and as a matter of urgency and immediate concern, Section 13 of the HIV Bill should be deleted, and instead the Bill should expressly recognize that reducing HIV among vulnerable groups is a key component of reducing HIV among the general population. This includes expanding the scope of non discrimination to cover such groups, including LGBTI persons; specifically providing for Prevention, Care and Treatment services targeted to the needs of LGBTI persons (including water-based lubricants and dental dams) as well as regular information and training regarding safer sex practices in the context of same sex activity. We firmly believe that instead of those inhuman cruel, destructive and punitive strategies of mandatory testing, forced disclosure and criminalization of intentional transmission, concerted efforts and resources should be consciously directed towards equitably reaching out to the beneficiaries with responsive and friendly service delivery systems.
It should be stressed that these proposals are in addition to the broader civil society concerns expressed in the Joint Civil Society Statement to which this statement is appended, key among which are the removal of provisions regarding mandatory testing, mandatory or unauthorized disclosure of HIV status as well as criminalization of intentional transmission, the details of which we have not seen fit to delve into as we feel they are adequately dealt with in that statement with which we fully associate.
We would only wish to state in closing that Parliament can only ignore our concerns at the risk of defeating the entire objective of the Bill which has been expressed to be “the prevention and control of HIV and AIDS”. As pointed out above, it is impossible to prevent and control HIV and AIDS without addressing the needs and concerns of LGBTI persons. Such a law would be doomed to fail from the very start since, as recognized by the Indian High Court in the case we have pointed out above, criminal laws (such as our S.145 and 146 in the Ugandan Penal Code) hamper HIV and AIDS prevention efforts, as do provisions such as S.13 of the HIV and AIDS Bill. Moreover, just as pernicious as criminal provisions is the silence in the Bill regarding prevention, treatment and care of HIV and AIDS among LGBTI persons and other vulnerable groups, as well as the failure to extend anti-discrimination provisions in the Bill to positively and specifically address the situation of sexual minorities in Uganda. Just in case you, our Honorable Members of Parliament feel that our concerns are peripheral, meaningless, ‘unAfrican’, immoral and not worth your attention, we wish to end our statement by reminding you once more of the findings of the study conducted by the School of Public Health of Makerere University as well as by the AIDS Control Programme of the Ministry of Health to the effect that, in Uganda, of the Men who have Sex with Men (MSM) surveyed:
* 31% of had ever been married and 20% of them were currently married;
* 78% of had ever had sex with a woman;
* 44% had ever lived with a female sex partner;
* 16% were currently living with a female sex partner and
* 29% had fathered children.
How then can you prevent and control HIV and AIDS in Uganda without addressing the needs of Lesbians, Gays, Bisexual, Transgender and Intersex (LGBTI) persons in Uganda?
FOR GOD AND OUR COUNTRY
Posted by African Activist at 11:51 AM
Labels: HIV/AIDS, Uganda
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