KAMPALA – The Uganda Network on Law Ethics and HIV/AIDS (UGANET) in partnership with the judiciary, the AIDS Support Organization (TASO) and the United Nations Development Programme (UNDP) have launched the Judicial Handbook on HIV, Human Rights and the Law in Uganda as a tool to eliminate negative discriminatory approaches in handling cases of people living with HIV – PLHIV in the courtroom.
The event held on the International Human Rights Day at Protea Hotel in Kampala was graced by the Chief Justice of Uganda, Alfonse Chigamoy Owiny-Dollo represented by Mr. Ssekaana Musa, the High Court Judge who is also the Civil Division Head.
The CJ says that the enactment of the HIV and AIDS Prevention and Control Act, 2014 in Uganda introduced serious challenges in litigating and adjudicating HIV/AIDS-related cases in the courtroom.
“The law introduced among others involuntary disclosure of one’s HIV status more especially those with the knowledge that are HIV+. This disclosure is wide as it relates to all persons in social contact with the person making the disclosure. This has created negative discriminatory approaches in handling cases of PLHIV in the courtroom.”
He said that the Act has been in place for now about 7 years but most of the cases prosecuted in courts have not been commenced under this Act instead under the Penal Code Act Cap. 120, specifically under Section 171 of the Act.
“Despite this legislation, limited legal literature exists on litigation and adjudication of HIV/AIDS cases in Uganda and most of the existing literature is foreign especially, the UNAIDS HIV and Human Rights Adjudication, 2007. Challenges faced by Judicial officers are several in this area and some relate to comprehending matters of science and especially proving whether or not the accused had the intention to transmit HIV/AIDS to the victim. Scientific evidence may prove to the contrary, taking into account the viral load of an accused person.”
This Handbook, the Chief Justice says has come at the appropriate time when cases concerning HIV/AIDS adjudication are increasing in the criminal justice system in Uganda.
“The Handbook is presented in a user-friendly language and style with reference to clear jurisprudence on HIV/AIDS litigation and adjudication domestically, regionally and on the global arena.”
UGANET Executive Director Ms. Dorah Kiconco Musinguzi said that the move is intended to recognize the law and human rights and to make an acknowledgement that HIV is a human rights and gender issue that impacts both women and men differently.
“It [HIV] is an issue interrelated with other issues like TB, GBV, and other issues of vulnerable who are not as powerful as others. So when it is human rights day, it helps you to acknowledge the things you have always forgotten and that is why we wanted judges to be here at the center of conversation because when we talk about HIV stigma, the stigma leads people to court, the criminalization leads people to court but the people who work on the files are having no information to deal with HIV.”
“So the handbook is very important because it is going to enable judges to have a tool to work with to challenge HIV stigma, to give them knowledge when they are dealing with cases of HIV criminal law or HIV stigma and discrimination. So it is like a tool of power, a tool of resourcefulness, a tool that will enable us to go forward and take our work forward,” she said.
In part II, the notebook concentrates on the National Law and Human Rights Frameworks as applicable to HIV in Uganda. It indicates that there are a number of policies and laws implementation of which is still poor or lacking. “These include among others The National Health Policy, the National Policy Guidelines for Voluntary HIV Counselling and Testing (VCT) (2003) and National Policy Guidelines for HIV Counselling and Testing (HCT) (2005) and the Policy for Reduction of the Mother-to-Child HIV Transmission. Briefly, the laws include the Constitution of the Republic of Uganda 1995, the HIV and AIDS Prevention and Control Act and the Employment Act.”
The CJ revealed that the Judges and other Judicial Officers who have handled HIV/AIDS cases have been executing their mandate without the benefit of a manual that collates in one place all the pertinent materials in this area of law.
He said that in the absence of easily accessible reference materials, it has been a burdensome exercise and inevitably leads to many variations in the outcome as there was no single place at which judges and practitioners could refer to.
“This Handbook has come at an appropriate time as the number of cases concerning HIV/AIDS are escalating within the criminal justice system in Uganda.”
He said that the aim of this publication is to assist the Judges and Magistrates by providing them with a single reference book to which they can turn for guidance in crafting their judgments in HIV/AIDS.
“The material provided in the Manual is designed to save judicial time in handling HIV and AIDS cases and to ensure that Judges and Magistrates are updated on this topic of the law as well as ensuring the consistency, predictability of delivery and clarity in judgments rendered,” said the CJ.
“You may all appreciate that stigma, discrimination and punitive approaches against people living with or at risk of HIV remain highly prevalent. Sadly. these happen subtly unseen, unknown and unchallenged, or unprioritized. These violations not only hurt those who suffer them, but they also threaten effective responses to the epidemic.”
He said that ending HIV requires enabling legal and social environments that guarantee the health, dignity and security of all people living with or at risk of HIV.
“This is the only way to ensure that all those in need of HIV prevention, treatment, care and support have access to these services without fear of discrimination, exclusion or bias.”