On February 24, 2014, Uganda President Yoweri Museveni signed the infamous anti-homosexuality bill into law. He signed it despite threats of losing economic aid from the United States (Uganda’s largest donor). Now, a number donors have suspended aid to Uganda, including the United States and the World Bank. The European Parliament passed a resolution just yesterday calling for targeted sanctions against “the key individuals responsible for drafting and adopting” the law.
It is one of the harshest anti-gay laws in the region. The new law imposes a life sentence for acts of “aggravated homosexuality,” seven years in prison for those “aiding and abetting homosexuality,” and criminalizes the “promotion of homosexuality.” It also subjects any person charged with “aggravated homosexuality” to an HIV test and criminalizes consensual same-sex sexual activity among adults where one is a person living with HIV.
On March 11, 2014, the Civil Society Coalition on Human Rights and Constitutional Law (representing approximately 50 groups) filed a petition before the Constitutional Court. It claims violations of a number of fundamental human rights, including non-discrimination and equality.
There is no question that the new law violates a number of provisions of the Constitution. However, Uganda’s Constitution does not enshrine a right to health. The petition frames the negative effects on access to HIV-related health care as violations of “the principle of legality, the freedoms of expression, thought, assembly and association, and the right to civic participation.” The lack of a right to health in the Constitution limits the types of claims that can be brought to address the negative impact that the law will have on the health of those living with HIV, whether they belong to the LGBT community or not.
Unsurprisingly, since its enactment, members of the LGBT community have been experiencing increased persecution. One day after the signing, Uganda’s tabloid newspaper Red Pepper published the names of individuals with the front page headline reading “Exposed: Uganda’s top 200 homos.” Naturally, now facing government-supported discrimination, LGBT individuals are being driven underground. They are afraid to carry out their daily activities, such as going to work, and several cases of persecution have been reported. At least ten people have been arrested and three have been evicted from their homes. It is expected that individuals living with HIV will likely be more hesitant to get tested and seek health care services out of fear. This would have grave implications on preventing the spread of HIV/AIDS in the country—setting Uganda back in its fight against AIDS, especially considering that Uganda was PEPFAR’s poster child. In fact, as indicated in my previous post on the (then) bill’s public health implications, Uganda is one of two the countries in Africa experiencing a rise in its AIDS rate.
With Uganda being a party to the International Covenant on Economic, Social and Cultural Rights (ICESCR), should the petitioners lose the case before the Constitutional Court, they would be able to bring a claim before the U.N. Committee on Economic, Social and Cultural Rights (CESCR). It has only been one year since the Committee acquired the competency to receive individual claims of human rights violations under ICESCR, and to date, the Committee has yet to take a case and issue its first decision.
The case framed around the right to health would be emblematic, especially as the first case for the CESCR. There is no denying that HIV/AIDS has played a tremendous role in bolstering the link between health and human rights since the 1980s. The grave implications that human rights violations could have on the health of an individual or group are clear. HIV/AIDS continues to be one of the top global health concerns, and Africa has been at the center of the HIV/AIDS movement—with PEPFAR and other such initiatives in the public and private sectors investing hundreds of millions of dollars in combatting the pandemic. Significant advances have been made in the region, but Africa now faces a serious threat that can set public health efforts back and threatened the lives of many—women, men, adolescents, and children alike.
While Uganda’s Minister of Health is “confident” that health care workers will abide by ethics principles and maintain confidentiality, experience and history prove otherwise. His confidence is not enough to do away with patients’ fears of being prosecuted based on their health status or with a health care worker’s fear that s/he may be seen as “aiding and abetting homosexuality.” In the context of reproductive health, for example, we have seen that where abortion is criminalized except under certain circumstances (such as when the life or health of the mother is at risk), health care workers still deny these services out of fear of being prosecuted.
The Committee needs to take on as its first case (or one of its first right to health cases) one that will be both symbolic and impactful, particularly because the right to health has been largely seen as abstract and meaningless. Here is the chance to vindicate the rights of a group that continues to be marginalized and to give “teeth” to the right to health, defining each and every aspect that we right to health advocates know so well. Here is a chance for the Committee to demonstrate the effects that discrimination can have on the health of individuals, particularly when it comes to accessing health care services. The Committee could finally provide more guidance on governments’ obligations to respect, protect, and fulfill the enjoyment of the right to health. The Uganda context can also provide a more concrete insight into what it means for “health care facilities, goods, and services” to be accessible, available, acceptable, and of quality. With the public health and HIV/AIDS experience that we already have under our belt, the Committee’s decision can be evidence-based and contain concrete standards. Through the Uganda context, it can finally explain that ensuring the enjoyment of the right to health goes beyond the health system and that legislation and the judicial system also affect (to a great extent) the health of a population. More pressure is needed from all fronts, and the CESCR presents one more way of exerting pressure on the Ugandan government.
Amidst the current trend in Africa to institute anti-gay legislation to further persecute the LGBT community, Uganda could have set a positive example for the region—there are currently 37 countries with anti-gay laws. Having been the model for HIV/AIDS prevention and treatment campaigns, Uganda was in the ideal position to influence other countries. It was a chance for public health to help protect the human rights of the LGBT community and persons living with HIV. Now, Uganda has reinforced the trend, driving the Democratic Republic of Congo to follow in Uganda’s footsteps.
The views reflected in this expert column are those of the individual authors and do not necessarily represent those of the O’Neill Institute for National and Global Health Law or Georgetown University. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.