GENEVA, 1 August 2014—UNAIDS welcomes the decision of Uganda’s Constitutional Court to overturn the law that called for a 14-year jail term for a first conviction, and imprisonment for life for ‘aggravated homosexuality’. Challenged by 10 petitioners including civil society, parliamentarians and academics, the law was annulled by the Court over a lack of quorum when the bill was passed.

“This is a great day for social justice,” said Michel Sidibé, Executive Director of UNAIDS. “The rule of law has prevailed.”

UNAIDS urges the protection and safety of all people seeking health services. While homosexuality remains illegal in Uganda annulling the law could have positive public health implications. Studies show that when gay men and other men who have sex with men face discrimination including abuse, incarceration and prosecution—they are less likely to seek HIV testing, prevention and treatment services.

“President Yoweri Museveni had personally indicated to me—that he wants Uganda to accelerate its AIDS response to ensure all people have access to life-saving services,” said Mr Sidibé.

UNAIDS urges all governments around the world, to protect the human rights of lesbian, gay, bi-sexual and transgender people through repealing criminal laws against adult consensual same sex sexual conduct; implementing laws to protect people from violence and discrimination; promoting campaigns that address homophobia and transphobia; and ensuring access to health services including HIV prevention, treatment, care and support services.

UNAIDS

The Joint United Nations Programme on HIV/AIDS (UNAIDS) leads and inspires the world to achieve its shared vision of zero new HIV infections, zero discrimination and zero AIDS-related deaths. UNAIDS unites the efforts of 11 UN organizations—UNHCR, UNICEF, WFP, UNDP, UNFPA, UNODC, UN Women, ILO, UNESCO, WHO and the World Bank—and works closely with global and national partners towards ending the AIDS epidemic by 2030 as part of the Sustainable Development Goals. Learn more at unaids.org and connect with us on Facebook, Twitter, Instagram and YouTube.

If signed into law the controversial bill would toughen punishments against gay people in Uganda

GENEVA, 18 February 2014—UNAIDS is deeply concerned about a bill in Uganda that would further toughen punishments against gay men.

The controversial bill, which was passed by the country’s parliament in December 2013, calls for a 14-year jail term for a first conviction, and imprisonment for life for the offence of ‘aggravated homosexuality’. The signing of the bill into law would have serious human rights implications.

“Uganda was the first country in Africa to break the conspiracy of silence on AIDS—and to give voice to the most marginalized—but now I am scared that this bill will take Uganda backwards, relinquishing its leadership role in the AIDS response,” said Michel Sidibé, Executive Director of UNAIDS. “I strongly urge the Ugandan authorities to reject the bill and ensure the human rights and dignity of all people in Uganda.”

The bill also has public health implications; studies show that when gay people face discrimination including abuse, incarceration and prosecution—they are less likely to seek HIV testing, prevention and treatment services.

In 2012, there were 1.5 million people living with HIV in Uganda and 140 000 new HIV infections. Globally gay men are around 13 times more likely to become infected with HIV than the general population, emphasizing the urgent need to ensure safe access to HIV prevention and treatment services for all people everywhere.

UNAIDS urges the government of Uganda, and all governments around the world, to protect the human rights of lesbian, gay, bi-sexual and transgender people through repealing criminal laws against adult consensual same sex sexual conduct; implementing laws to protect people from violence and discrimination; promoting campaigns that address homophobia and transphobia; and ensuring access to health services including HIV prevention, treatment, care and support services.

UNAIDS

The Joint United Nations Programme on HIV/AIDS (UNAIDS) leads and inspires the world to achieve its shared vision of zero new HIV infections, zero discrimination and zero AIDS-related deaths. UNAIDS unites the efforts of 11 UN organizations—UNHCR, UNICEF, WFP, UNDP, UNFPA, UNODC, UN Women, ILO, UNESCO, WHO and the World Bank—and works closely with global and national partners to maximize results for the AIDS response. Learn more at unaids.org and connect with us on Facebook and Twitter.

Participants at the judicial dialogue on HIV, human rights and the law. Bangkok, Thailand. 2-4 June 2013. Credit: UNAIDS

In Asia and the Pacific, almost all countries have some kind of punitive laws, policies and practices that hamper access to HIV services for people living with HIV and key populations at highest risk including people who use drugs, sex workers, men who have sex with men, and transgender people.

Faced with punitive legal environments, many people in need of HIV prevention and treatment services are not able to access them for fear of stigma, discrimination, legal reprisals and even violence.

Seeking to address these challenges, some 30 judges from the highest national courts of 16 countries in Asia and the Pacific joined to discuss the role of the judiciary in responding to HIV. They also debated about the specific actions that can be taken to create a more supportive legal and social environment for people living with and vulnerable to HIV in the region.

Convened by UNAIDS, UNDP and the International Commission of Jurists, the meeting was part of efforts to support judges become leaders in the HIV response. Participants stressed the critical role of Judges and courts in protecting people living with and affected by HIV and achieving the UNAIDS vision of ‘zero discrimination’.

30 years into the AIDS response, the need for legal environments to be aligned with the latest scientific developments on HIV and treatment was underlined. “Our authority is based on reason and evidence—this is the strongest ally we have in addressing the HIV epidemic and what we need for just and fair outcomes,” said Hon. Justice Edwin Cameron, Justice of the Constitutional Court of South Africa.

During the gathering, UNAIDS launched a new Judicial handbook on HIV, Human Rights and the Law, providing updated information on the latest scientific developments on HIV as well as key human rights and legal considerations to assist and guide judges’ HIV-related work.

Of the 38 United Nations Member States in the region, 11 impose some form of restriction on the entry, stay and residence of people living with HIV based on their HIV status; 37 criminalize some aspect of sex work; 18 criminalize same sex relations; 11 impose compulsory detention centres for people who use drugs; and 15 provide the death penalty for drug-related offences.

“The time has come for us to address all laws concerning people from marginalized sections of society. We need to re-look at legislation through the lens of the human rights guaranteed under the Constitution and ensure it is aligned to enable progress and to move with the necessary urgency,” said former Chief Justice of the Delhi High Court in India, Hon. Ajit Prakash Shah. Judge Shah was on the bench that handed down the July 2009 ruling that found India's 150-year-old statute (Section 377 of the Indian Penal Code) prohibiting homosexual acts as discriminatory and therefore a violation of fundamental rights.

Transformative jurisprudence

The striking down of Section 377 through the Delhi High Court was one of a number of protective jurisprudence examples that have had a transformative and beneficial impact on the national AIDS response and on public perception of HIV. Other examples are the progressive court decisions in Nepal, India and Bangladesh that have recognized the human rights of sex workers as defined under national Constitutions; decisions in Thailand and India that have ensured access to affordable generic medicines; and Pakistan’s inclusion of transgender people in population registration under the status of a third gender, among others.

Discussions at the Bangkok dialogue were supported by active involvement of representatives from groups of people living with HIV and key populations at highest risk, together with United Nations agencies and partners, who underlined the importance of the judiciary’s active support to the revision and removal of punitive laws in the region.

“If we don’t deal with these issues, we are not going to end AIDS,” said Mr Shiba Phurailatpam, Regional Coordinator of the Asia Pacific Network of People Living with HIV. “Judicial action can affect social views and have an impact on stigma and discrimination—it can save people’s lives,” he added.

“The law must be a shield that protects, not a sword that punishes and increases vulnerability to abuse, harassment and HIV infection,” said UNAIDS Deputy Executive Director, Management and Governance, Jan Beagle who delivered the keynote address at the meeting. “Judges can help shape social and community attitudes by stance and attitude toward people living with HIV and members of key populations,” she added.

Director of the UNDP HIV Health and Development Practice, Dr Mandeep Dhaliwal stressed that judicial leadership is an essential component of addressing inequality. “Getting the legal environment right is essential for addressing the social and structural inequalities which fuel HIV and impede health and development progress,” she said.

The President of Fiji, His Excellency Ratu Epeli Nailatikau (centre) joined delegates from Fiji, Kiribati, Papua New Guinea, Samoa, Solomon Islands, Tuvalu and Vanuatu to review laws and policies which impact on HIV and health programming initiatives. Credit: UNAIDS

For activist and community leader Kapul Robert* from Papua New Guinea (PNG) accessing HIV services is a constant challenge. “Papua New Guinea has a law that says sodomy is illegal and this law is contributing to the high-levels of stigma existing in society for both men who have sex with men (MSM) and transgender people.”

Almost all Pacific nations—and many countries across Asia-Pacific— have examples of laws and practices that criminalize people living with HIV or people most at risk of infection such as MSM, sex workers, transgender people, migrants and prisoners. Such punitive laws and policies sustain violence and discrimination and contribute to significant obstacles to access HIV-related services.

According to Mr Robert, who identifies as MSM, the general population of PNG would never be able to say they had sex with another man as they would immediately feel discriminated against. “It’s hard to talk about it,” he said. “If people are referred to government run rural clinics they just don’t go back because they are afraid to be judged. So they don’t receive their HIV test results or their medication,” he explains. “People don’t feel free under the law to identify themselves as MSM or transgender,” he added.

Responding to such challenges, leaders from government, health, legal and community sectors of seven Pacific Island nations—Fiji, Kiribati, Papua New Guinea, Samoa, Solomon Islands, Tuvalu and Vanuatu—came together for a consultation in Nadi, Fiji at the end of April. The objective was to identify concrete country-level actions needed to address punitive laws, law enforcement practices and weak access to justice to ensure greater access to HIV services.

“Pacific Island Countries have a history of leadership in the response to HIV, and have played a crucial role in building momentum for progress towards shared goals,” said the President of Fiji, His Excellency Ratu Epeli Nailatikau. “But we have less than 1 000 days left until the deadline for achieving HIV targets. This is an opportunity for us to identify key aspects of the legal environment that are hindering access to HIV services and to map out a time-bound action plan to address them.”   

Through the consultation, examples of progress in a number of Pacific countries—including Fiji, New Zealand, and Australia, where a variety of punitive laws have been revised or lifted were heralded as exemplary for the region. Moving towards replication in other Pacific nations, actions identified in the country plans ranged from supporting the progress of HIV bills through Parliament to awareness-raising with the judiciary and law enforcement authorities on key legal and human rights issues.

“This is the first legal review of its kind in the Asia Pacific region,” said Director of UNAIDS Asia Pacific Steven Kraus. “We’ve seen nations coming together for meaningful community dialogue and peer exchange to identify priority actions. This leadership and solid inclusive strategy puts the Pacific in prime position on the route to ending the AIDS epidemic,” he added.

The developed action plans will be implemented at the country level, supported through partnership with the Secretariat of the Pacific Community RRRT (Regional Rights Resource Team), UNAIDS, UNDP, ILO and other regional partners.

For Kapul Robert, enhanced attention to legal reform and law enforcement within the context of the HIV response is strongly welcomed. “If the laws were changed the number of HIV cases among MSM would reduce. People would feel less discriminated against and be able to access HIV testing and antiretroviral treatment.”

*Name has been changed to protect the identity of the interviewee.

Under the revised penal code young people between the age of 14 and 18 years old will be able to exercise their sexual and reproductive rights.
Credit: UNAIDS

The Constitutional Tribunal of Peru is amending an article in its penal code which for many years had criminalized consensual sexual activity among young people. Sentencing was particularly severe with adolescents facing up to 30 years in prison. Article 173 of the penal code was also preventing young people from accessing essential health and reproductive services for fear of prosecution.

Under the revised penal code young people between the age of 14 and 18 years old will be able to exercise their sexual and reproductive rights providing the two parties are consenting. Non-consensual sexual relations will still constitute a crime in Peru with lengthy sentencing for people found guilty.

"The Constitutional Tribunal ruling generates a protective effect in relation to adolescents, because it provides them with greater access to sexual and reproductive health services as well as guidance and information to avoid sexually transmitted infections, including HIV," said Mima Barnechea from the United Nations Population Fund (UNFPA).

In 2012, UNFPA and UNAIDS presented a formal request before the Constitutional Tribunal advocating for the declaration of unconstitutionality of Article 173.  This process was part of a wider effort particularly from the Office of Peru’s Ombudsman, Eduardo Vega Luna as well as legal demands presented before the Tribunal by more than 10 000 Peruvian citizens.

"UNAIDS welcomes the Constitutional Tribunal’s decision and congratulates the magistrates for their determination to protect adolescents’ human rights,” said UNAIDS Coordinator for Peru and Bolivia, Regina Castillo. “The Tribunal’s decision reinforces young people’s right to make decisions regarding their health and sexuality and the need to construct policies and programmes that recognize young people as active actors of change.”

According to a National Demography and Health Survey of 2011 a large percentage of Peruvians initiate sexual relations before the age of 18.  More than 12% of female adolescents (ages between 15 and 19) have been pregnant at least once.

"This decision is a milestone that sets the basis for plans and programs at national level to prevent teen pregnancy and reduce sexually transmitted infections including HIV and maternal mortality," said Carlos Tacuri Calderon, youth activist in Peru and member of INPPARES.

UNAIDS estimates that around 74 000 people are living with HIV in Peru of which approximately half became infected before the age of 20. This situation stresses the need to raise awareness on HIV and its modes of transmission among teenagers. In December 2012, the Ministry of Health in collaboration with UNAIDS and other partners launched the campaign “take an HIV test––it’s better to know” which aimed to reach young men with key HIV prevention messages and provided free HIV tests.