Criminalizing HIV/AIDS care and support: Discrimination laws threatening the fight against HIV/AIDS in Africa

A paper presented to a workshop organized by Salud por Derecho on
“Challenges on the road to Universal Access on the 30th Anniversary of HIV/AIDS”
By
Wamala Dennis Mawejje
Since it was discovered over two decades ago, HIV/AIDS has claimed so many lives and attracted a lot of attention. In this regard, so many interventions have been designed and implemented to curb this epidemic. However much multi-pronged the interventions claim to be, there are still areas where a lot of work still needs to be done- some of these areas have actually slowed or retarded progress in this fight. One such area is the majorly ignored issue of sexual minorities.
These have been ignored in many countries and some have even argued that the LGBT community does not exist. This has meant discrimination in the application of interventions for prevention, treatment and care in combating HIV/AIDS.
Discrimination against the LGBT community is also multi-pronged; it comes from cultural, religious, economic and legal angles to mention but a few. Today I will look at the legal angle of discrimination and how it is impacting on the fight against HIV/AIDS in the world generally but with specific interest in Uganda where discrimination is at unprecedented levels.
Despite the call for non-discrimination by different documents like the yogyakarta principles on the application of international human rights law in relation to sexual orientation and gender identity, Universal Declaration Human Rights, African Commission on Human and People’s Rights, International Covenant on Civil and Political Rights, HIV/AIDS declaration and many others, many countries still treat LGBT people if not as second class citizens then as worthless members of society. This is reflected even when it comes to dealing with HIV/AIDS.
Like is the case that a medical practitioner should report any bullet wound they treat, practitioners in some countries where same sex relations are criminalized tend not only to shy away from dealing with such people as they believe it to be abetting crime but are also not well trained in dealing with MSM issues since these are seen as illegal. Today over 80 Countries around the world still criminalize same sex relations and Uganda is one of them.
These laws mainly affect men having sex with men (MSM).
Uganda was one of the first African countries to respond aggressively to the HIV/AIDS epidemic, moving rapidly to introduce measures to prevent HIV transmission. Thus, in Uganda HIV prevalence rates that once hovered around 30%, declined to under 10 % over the last two decades (Okero et al, 2004). Nevertheless, there is presently some concern that HIV prevalence rates are once again on the rise or at best reached a plateau where the numbers of new HIV infections match AIDS-related deaths. Reasons advanced for this state of affairs include increasingly active restrictive legislation to HIV related issues like same sex relations, the government’s shift towards abstinence-based prevention programs, general complacency (‘AIDS-fatigue’) and the changes in the perception of AIDS as a treatable and manageable disease with the availability of ART.
Though the constitution of Uganda calls for the establishment of rights and freedoms for all, the LGBT community has not been able to enjoy these freedoms as a minority group.
• Section 140 of the penal code of the republic of Uganda criminalizes “carnal knowledge against the order of nature” with maximum penalty of life imprisonment. Also, Section 141 prohibits “attempts at Carnal knowledge” with maximum penalty of 7 years’ imprisonment. Section 143, punishes acts of procurement of or attempts to procure acts of gross indecency” between men in public or private with up to 5 years imprisonment
We even saw a push further in the wrong direction by an MP belonging to the ruling party who introduced the anti-homosexuality bill 2009 with severe punishments for same sex relations including a death penalty, jail terms for issues like mandatory reporting and many other extremely ridiculous provisions.
Restrictive legislative environments in some countries hinder effective HIV service provision to MSM. In fact, sexual acts in private between consensual adults of the same sex are still criminalized in most of Africa.
These restrictive legislations have meant that most LGBT people live their lives underground (very secret lives) and it makes provision of care and support in terms of LGBT health initiatives very difficult and unlikely because you cannot provide care to someone you are not aware of.
Also using the law, we have seen security personnel arresting LGBT people with the intention of extortion. Some of these people are raped in detention and this worsens the HIV/AIDS situation as well as bringing down their self-esteem to deal with the infection.
LGBT activists who have braved the storm to advocate for equal access to HIV/AIDS prevention, treatment and care have many times been arrested like was the case in the HIV/AIDS implementer’s meeting held in Kampala where three activists were arrested. This discourages other activists from coming out against discrimination as they find the issue tricky hence worsening the HIV/AIDS situation both for LGBT people and female partners to MSM.
Also during post-test counseling and treatment of STIs, individuals are encouraged to bring their partners along but the laws against same sex relations make it difficult for people in such relations to benefit from this. This means that the counselors will not do their job well and the fight against HIV/AIDS becomes even more difficult.
Because anti-homosexuality laws basically legitimize discrimination, those who come out to defy this order face isolation not only from the public but also from the LGBT community itself. You find that some LGBT people shun service providers who openly work with same sex loving couples for fear that they might get exposed and face the stigma that comes with being a known homosexual.
Since the law does not recognize same sex relations, the health sector establishment in its bid to fight HIV/AIDS does not include consumables for MSM and WSW like lubricants, IEC materials, etc, meaning that they use all types of crude and dangerous consumables which ultimately expose them to HIV.
Worst of all, to evade the law, some LGBT people live double lives. A man will get married to a woman to hide the fact that he is sleeping with men. This means that if because of the reasons I have mentioned above he catches HIV from his male partner, he will pass it on to his female partner and the chain of HIV transmission then becomes endless. This is a serious issue in Uganda and that is why we argue that protecting MSM from being infected and affected by HIV and AIDS means we are protecting the whole community.
To achieve this, we need to rethink our restrictive legislations against same sex relations and embrace a more broad based approach.
I thank you.
denkross@gmail.com