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.
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.
In September 2019, activists from the HIV Law Coalition, a consortium of 32 human rights organisations, called for repeal of the problematic sections of the HIV and AIDS Prevention and Control Act, and asked for fast-tracking of their Petition 24 of 2016 to the Constitutional Court regarding those laws. In October 2020, activists again formally requested the repeal of sections 41 and 43.
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.
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.
Our thanks to Australian law firm Hall & Wilcox for their research assistance to confirm current relevant legislation.