Uganda

Last updated on: 9 September 2015

Criminalisation of HIV transmission/exposure

Uganda
Whether Specific law enacted: 
-
Number of people prosecuted: 
1
Number of people convicted: 
-
Applicable law: 

Human Immunodeficiency Virus Control Bill (2007)

HIV and AIDS Prevention and Control Bill (2009)

Key wording in the law: 

2007 Bill - Part I

4. Acts resulting into infection of another person an offence

A person who, directly or indirectly, omits to do or does any act which he knows or has reason to know or believe that it will result into the infection of another person with HIV commits an offence and is liable on conviction to a fine not exceeding twenty four currency points or to imprisonment not exceeding one year.

2007 Bill - Part VI

27. Intentional transmission of HIV

(1) A person who intentionally transmits or attempts to transmit HIV to another person commits an offence of intentional transmission of HIV and shall be liable on conviction to two years imprisonment or to a fine not exceeding fifty currency points or to both.

(2) No person shall be convicted of an offence under subsection 1 if

  • (a) the person alleged to have committed the offence was not aware of being infected with HIV at the time of committing the act which is the result of the complaint;
  • (b) the other person was aware of the HIV status of the accused and the risk of infection and he voluntarily accepted the risk;
  • (c) the alleged transmission or attempted transmission was through sexual intercourse and a condom or other reliable protective measure was used during penetration;
  • (d) the other person was already infected with HIV at the time of the alleged transmission or attempted transmission.

28. Reckless behaviour causing risk of infection to others

(1) Where it is reasonably believed that a person

  • (a) who is aware of being infected with HIV is behaving in such a way as to expose others to a significant risk of infection; and
  • (b) is likely to continue that risky behaviour; and
  • (c) has been counselled without success in achieving appropriate behaviour change; and
  • (d) presents a real danger of infection to others, the chairperson of a local court may issue a written notice to that person.

(2) A notice under subsection 1 shall state

  • (a) grounds upon which it is believed that the notice should be issued;
  • (b) the nature of the risky behaviour of the person;
  • (c) an order or direction to stop the behaviour;
  • (d) any other order or direction to the person considered necessary to ensure change of behaviour; and
  • (e) that breach of any order or direction shall be an offence.

(3) An offence committed under subsection 2(e) shall be deemed to be intentional transmission of HIV and the provisions of section 27 shall apply.

Key Cases: 

12 Jan 2014, Woman, 65, arrested for allegedly injecting her HIV-positive blood into a two year-old.

The police have arrested a 65 year old woman, Rosemary Namubiru for allegedly injecting a two year-old baby with blood infected with HIV/AIDS. According to police, she was arrested on Monday in Victoria Medical Centre on Lumumba road, Kampala where she reportedly committed the alleged crime. The woman was arrested following complaints from the child’s parents who found her injecting their child. When the police subjected her to a test, she was found to be carrying the HIV virus. Speaking to the New Vision at Central Police Station in Kampala on Saturday, Kampala Metropolitan spokesman Ibin Ssenkumbi said Namubiru will soon be arraigned in courts of law for prosecution once investigations into the matter are concluded. “She was caught injecting the baby with a syringe that she had earlier used on herself. When the investigations are over, police will send the file to the Directorate of Public Prosecution for sanctioning,” said Ssenkumbi. The suspect is still held at Wandegeya police station, as investigations in the matter intensify. Police is also investigating allegations that the woman has been engaging in the act for pretty a long time. In her defense, Namubiru said she did not intend to inject the baby with the blood but had pricked herself by accident. - Source: http://www.hivjustice.net/storify/uganda-woman-65-arrested-for-allegedly-injecting-her-hiv-positive-blood-into-a-two-year-old/#sthash.AeCTwv8A.dpuf

Discussion: 

From the information received, the Ugandan parliament has tabled a bill which makes provision for a person to be convicted for transmitting HIV.  The Bill places a duty on everyone to protect themselves and others from HIV infection.

During a visit in Kampala, the UN envoy on AIDS argued at a press conference against the criminalisation of HIV spread: see the New Vision article.

Criminalisation of other infectious diseases:

As this is an HIV specific Bill, it does not mention whether transmission of any other infectious diseases is an offence. However a provision in the Penal Code which has a general reach:

Section 171. Negligent act likely to spread infection of disease:

Any person who unlawfully or negligently does any act which is and which he or she knows or has reason to believe to be likely to spread the infection of any disease dangerous to life commits an offence and is liable to imprisonment for seven years.

This bill has been widely criticised by groups representing people living with HIV and others (see media reports).

Penalties:

Whilst the Bill provides that the maximum sentence should not exceed imprisonment for more than two years, the President and a High Court Judge called for tougher sentences. (See media reports: ‘Those who spread AIDS should hang’). The maximum sentence of two years’ imprisonment or to a fine not exceeding fifty currency points or to both, is  moderate relative to penalties prescribed in similar laws in the region, (e.g. Life Sentence in Tanzania)

Mother to child transmission:

Mothers are expressly exempt from the possibility of being charged with reckless behaviour causing risk of infection to their child; before, during or after the birth of the child:

29. Exemption to creation of risk

The provisions in this Part [section 28 – see above] shall not apply to any transmission of HIV by a mother to her child before, during or after the birth of the child.

Aggravated defilement charges:

There is a media report of provisions in the new Penal Code Amendment Bill, aggravating penalties for individuals who are aware of their HIV-positive status and have sex with a child under the age of 14, with or without their consent. If found guilty of the so called "aggravated defilement" and, on conviction in the High Court, such persons are "liable to suffer death".

Whilst there have been no prosecutions in Uganda, a Ugandan  national, Johnson Aziga, 52, is the first person in Canada to be prosecuted for murder in an HIV infection case for allegedly having unprotected sex without disclosing his health status to partners.

Survey respondents/Organisations working on HIV and the Law: 

AIDS Rights Alliance for Southern Africa (Legislative provisions)
Michaela Clayton, michaela@arasa.org.na, arasa@africaonline.com.na

The National Forum of PLHA Networks in Uganda (NAFOPHANU)
Samuel James Kibanga, P.O.Box 70233, Kampala, Uganda
+256 414 271015, +256 752 494529
nafophanu@infocom.co.ug ; sjkibanga@yahoo.com

Organizations working on HIV and the Law
Uganda Network on Law, Ethics and HIV/AIDS (UGANET)
P.O.Box 70269, Kampala, Uganda
+256 414 532829, uganet@yahoo.com

UGANDA NETWORK OF YOUNG PEOPLE LIVING WITH HIV/AIDS UGANDA
P.O. Box 7136, Kampala 256, Uganda
Tel: 256-77-692931
E-mail: kiirufayouthass@yahoo.com ; unypapositive@yahoo.ca
Contact: Paddy Masembe

Coalition of Health Promotion (HEPS Uganda)
Rosette Mutambi
+256 712416793

International Community of Women Living with HIV/AIDS (EA region)
Lillian Mworeko
+256 7720460320, lmworeko@icw.org

Uganda Network of AIDS Service Organisations (UNASO)
Stephen Alege
+256 712813050

Action Aid International (Uganda)
Elizabeth Nakiboneka
+256 772431947

Further reading: 

AIDS Portal for Uganda

Criminalisation Blog for Uganda

There are several articles on legal issues in Uganda, for instance on the AllAfrica site.

For info about the Penal Code: Penal Code Act 1950 (Ch 120)

UN Envoy addresses the criminalisation of HIV spread 

Other laws and policies with an impact on responses to HIV

Laws and regulations relating to entry, stay or residence in the country: 

No restrictions for short-term tourist stays. No HIV testing on entry.

As a rule, health certificates or HIV test results do not have to be presented when applying for a long-term stay.

For updated information, please go to: www.hivrestrictions.org

Laws relating to same sex, sexual relations: 

Male to Male relationships: Not legal

Punishments for male to male relationships: Imprisonment of 10 years or more

Female to Female Relationships: Not legal

For updated information, please go to: http://ilga.org

NEWS (September 2015)

Ugandan judge makes distinction between forceful and consensual sodomy

 https://sebaspace.wordpress.com/2015/09/08/ugandan-judge-makes-distinction-between-forceful-and-consensual-sodomy/