Uganda

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.

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 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 as the Anti-Homosexuality Act 2023 by President Museveni, drawing condemnation from foreign governments and civil society, as well as local organisations who filed a constitutional challenge to the law on the same day it was adopted. Reporting following the law’s adoption suggests that the expected detrimental impact on access to HIV care has materialised due to fear of arrest.

The Constitutional Court began hearing the case in December 2023, and a 200-page judgement was issued in April 2024. The Court upheld the law with the exception of several provisions which it deemed “do not pass constitutional muster”. Notably, this included section 3(2)(c), which provided for the death penalty in cases of same-sex activity leading to the transmission of ‘terminal illnesses’ including HIV. The Court acknowledged that this criminalised unintentional transmission, and amounts to a violation of the right to health. As such, section 3(2)(c), along with provisions unrelated to HIV, were struck down as unconstitutional.