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.
‘Wilful and intentional’ transmission of HIV is punishable by a fine and/or up to ten years’ imprisonment. Section 43 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. Attempted transmission is punishable by a fine and/or up to five years’ imprisonment. The scope of section 41 is undefined, but cases demonstrate that the law criminalises perceived HIV ‘exposure’ broadly.
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. In the most recent case in 2023, a woman living with HIV pled guilty to charges under section 43 after injecting her 5-year-old son with her blood, and was sentenced to seven years’ imprisonment. Cases have generally not used scientific evidence to prove allegations, with convictions at lower level courts relying only on testimony.
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. In 2022 it was reported that pilot scheme was being rolled out in which people arrested of any offence would now be tested for HIV. Section 18(2)(e) of the law also permits HIV test results to be disclosed by medical professionals without consent of someone living with HIV to anyone in ‘close or continuous contact’ with them, including sexual partners, if that contact is deemed to pose a risk of transmission. Section 18(2)(h) also permits disclose to anyone ‘exposed’ to blood or bodily fluids of a person tested.
In 2016, a civil society coalition led by UGANET brought a challenge to several problematic sections of the HIV and AIDS Prevention and Control Act to the Constitutional Court. The case challenged sections 18(2)(e) & (h), 41, 43(1), and 44 (the latter of which criminalises ‘obstruction’ of implementation of the provisions of this law with a penalty up to ten years’ imprisonment) on the basis that these laws violate several articles of the Constitution and National Guiding Principles of State Policy. Specifically, the claim argued the laws are overbroad, vague, and subjective, permit unlawful disclosure of HIV status, and that criminalisation unconstitutionally singles out people living with HIV.
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, and the decision was released in November 2022. The Court dismissed the claims in their entirety, finding that the provisions were not overly broad or vague as they could be satisfactorily interpreted by courts based on the evidence in specific cases, that the right to privacy protects medical information but that this is not absolute and the objective of preventing the transmission of HIV represents a justifiable limitation of this right, and that criminalisation of HIV transmission was lawful as part of legislation whose sole stated aim is to limit HIV transmission, an objective it ruled was in the public interest. As such, the claimants’ case was found to be without merit (for a more in depth analysis of the judgment see the Uganda Law Society Legal Insights briefing note linked in further resources below).
Despite this setback, other legal interventions by activists, including UGANET, appear to be improving the court’s approach to HIV criminalisation cases. A High Court appeal secured bail (after seven months’ incarceration) for the woman accused of defilement in 2019 (see above).
As well as the provisions in the HIV and AIDS Prevention and Control Act, the Ugandan Penal Code 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, and the Bill was returned to Parliament to address the President’s concerns.
In March 2023, the Ugandan Parliament passed a similar anti-LGBT bill. This bill contains deeply regressive provisions criminalising same-sex activity with life imprisonment, as well as the death penalty for ‘aggravated homosexuality’, which includes same-sex acts resulting in the transmission of a ‘terminal illness’, defined as a ‘disease without scientific cure’. This terminology suggests that HIV transmission via same-sex activity would be liable to death under the new bill. ‘Attempted aggravated homosexuality’ is also punishable with up to 14 years’ imprisonment, which could be interpreted to (re)criminalise HIV ‘exposure’. As well as substantially increasing the penalties provided for HIV transmission and ‘exposure’ where they arise from same-sex sexual activity, advocates have highlighted the likely damaging impacts the provisions would have on the HIV response. In May 2023, the bill was approved by parliament for a second time after the President requested some unknown amendments in April, however little substantive change was made. Later that month, the bill was enacted into law by President Museveni, drawing condemnation from foreign governments and civil society, and local organisations filed a constitutional challenge to the law on the same day it was adopted.
The HIV and AIDS Prevention and Control Act 2014
Part VIII – Offences and Penalties
Section 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.
Section 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.
Section 43. Intentional transmission of HIV
1. 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.
2. A person shall not be convicted of an offence under subsection (1) if-
(a) The person was aware of the HIV status of the accused and the risk of infection and he or she voluntarily accepted the risk;
(b) 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
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
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.
On November 8, 2022, in Uganda Network on Law, Ethics & HIV/AIDS (UGANET) & 2 Others v. Attorney General, Constitutional Petition No. 24/2016, the Constitutional Court of Uganda (in the lead judgment of Musota, JA/JCC, which was unanimously agreed to by other justices on the coram, to wit, Buteera, DCJ/JCC,Kibeedi, JA/JCC, Mulyagonja, JA/JCC and Mugenyi, JA/JCC) pronounced itself on the constitutionality of several provisions of the HIV and AIDS Prevention and Control Act, 2015.
Our thanks to Australian law firm Hall & Wilcox for their research assistance to confirm current relevant legislation.