Uganda’s HIV and AIDS Prevention and Control Act of 2014 includes two HIV criminalisation provisions: section 41, Attempted transmission of HIV, and section 43, Intentional transmission of HIV. Section 41 states that a person who attempts to transmit HIV is guilty of an offence punishable by a fine and/or five years’ imprisonment.
It is unclear how ‘attempting to transmit’ would be defined. Section 43 states a person who wilfully and intentionally transmits HIV to another person commits an offence punishable by a fine and/or imprisonment of up to 10 years. The section provides a defence if the accused’s partner was aware of, and accepted, the risk of transmission, or transmission occurred during sexual intercourse and protective measures were used.
The laws are known to have been used in a broad range of circumstances, including prosecution of a man for ‘defilement’ (2013), prosecution of a teacher for alleged transmission to his student (2013), the alleged injection of a toddler/needle stick injury (2014), alleged transmission by a woman to a number of young men (2014), alleged breastfeeding of an employer’s child (2018), the arrest, conviction and acquittal of a nurse wrongfully convicted of injecting a baby with HIV-infected blood (2018), and the alleged defilement of a boy by a woman (2019). An earlier prosecution from 2008 involved a man charged with alleged transmission. Cases have generally not used scientific evidence to prove allegations, with convictions at lower level courts relying only on testimony.
In 2016 a challenge to three particular problematic sections of the HIV and AIDS Prevention and Control Act was made in the Constitutional Court. In September 2019, activists asked for fast-tracking of their Petition 24 of 2016 to the Constitutional Court regarding those laws. Finally in August 2021, five years after the challenge was submitted, the Court begun to hear the case. Final arguments were heard in June 2022, with the decision by the Constitutional Court pending.
Recent legal interventions by activists, including UGANET, appear to be improving the court’s approach to HIV criminalisation cases. Their most recent intervention, a High Court appeal, secured bail (after seven months’ incarceration) for the woman accused of defilement in 2019.
The HIV and AIDS Prevention and Control Act also includes a section (§12) relating to HIV testing of people charged with sexual offences. The section states that persons arrested for a sexual offence shall be subjected to HIV testing for the purposes of criminal proceedings and investigations. That is, the person will be forcibly tested upon arrest, before the matter has been heard by a court to establish whether, in fact, a sexual offence has been committed.
As well as the provisions in the HIV and AIDS Prevention and Control Act, the Ugandan Penal Code Act also includes a section (§171) making it illegal to do a negligent act likely to spread infection of disease, with a penalty of seven years’ imprisonment.
The Prohibition of Female Genital Mutilation Act includes a section making it an aggravating factor if a person commits the offence of aggravated female genital mutilation where the victim is infected with HIV as a result of the act of female genital mutilation.
In May 2021, the Ugandan Parliament passed the Sexual Offences Bill 2019 which includes some positive protections against sexual violence but also contains provisions which would recriminalise same-sex sexual activity and sex work, as well as increasing the punishments available for offences committed by people living with HIV. Section 3 of the Bill, which criminalises ‘aggravated rape’, would allow for the death penalty to be imposed where someone who is convicted of rape is living with HIV, without reference to proof of transmission. Section 14 also allows for the death penalty to be imposed where a person living with HIV is convicted of the offence of ‘aggravated defilement’, which criminalises sexual acts on a child. Anyone charged under sections 3 and 14 would be required to undergo a forced medical examination, including a HIV test. However, in August 2021 President Museveni declined to give assent to this Bill, stating that many provisions are redundant and covered by existing legislation. The Bill was returned to Parliament to address the President’s concerns, and it is not yet clear whether a revised Bill will be considered.
The HIV and AIDS Prevention and Control Act, 2014
Part VIII – Offences and Penalties
Article 12. HIV testing of persons charged with sexual offences.
A person who is apprehended for a sexual offence shall be subjected to HIV testing for purposes of criminal proceedings and investigations.
Article 41. Attempted transmission of HIV.
A person who attempts to transmit HIV to another person commits a felony and shall on conviction be liable to a fine of not more than twelve currency points or imprisonment of not more than five years or both.
Article 43. Intentional transmission of HIV.
- A person who wilfully and intentionally transmits HIV to another person commits an offence, and on conviction shall be liable to a fine of not more than one hundred and twenty currency points or to imprisonment for a term of not more than ten years or to both.
- A person shall not be convicted of an offence under subsection (1) if-
- The person was aware of the HIV status of the accused and the risk of infection and he or she voluntarily accepted the risk;
- The alleged transmission was through sexual intercourse and protective measures were used during penetration.
Penal Code Act, Chapter 120
CHAPTER XVI—Nuisances and Offences against Health and Convenience.
- 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
The Prohibition of Female Genital Mutilation Act, 2010
Part II – The offence of female genital mutilation.
Aggravated female genital mutilation
(1) a person commits the offence of aggravated female genital mutilation where-
(d) the victim is infected with HIV as a result of the act of female genital mutilation.
"The Judicial Handbook on HIV, Human Rights and the Law in Uganda", developed by UGANET, comprises of five parts that address the issues relating to HIV/AIDS and raises pertinent issues relating to its existence as may affect Judges’ decisions as well as possible recommendations.
Part I enunciates the International Law and Human Rights Frameworks as applicable to HIV/AIDS in Uganda
Part II concentrates on the National Law and Human Rights Frameworks as applicable to HIV in Uganda.
Part III is about gaps/issues/shortfalls in national law and human rights frameworks as applicable to HIV and discusses policies on HIV.
Part IV pertains to criminalization of transmission of HIV and its adverse effects.
Part V is about things to remember when judging and adjudicating HIV cases, what the disposition of a judicial officer should be as well as the role of a judicial officer in the courtroom whilst handling such cases.
This is a report of a Legal Environment Assessment (LEA) for HIV & AIDS in Uganda, conducted by the USAID/Uganda Civil Society Strengthening Activity (CSSA). While the Government of Uganda is committed to the goal of ending AIDS as a public health threat by 2030, there is also increasing recognition that this goal cannot be achieved unless the country addresses structural barriers such as legal impediments, and issues such as human rights, stigma, discrimination, gender inequality and gender-based violence.
Our thanks to Australian law firm Hall & Wilcox for their research assistance to confirm current relevant legislation.