In Kato’s Africa, USAID Money SpurredSpread of HIV Criminalization Laws
By Julie Turkewitz, August 1, 2011
Millions of dollars in USAID funds have helped spur a “legislation contagion” that jeopardizes humanrights in Africa.
When police found Ugandan gay rights activist David Kato bludgeoned to death lastmonth in his Kampala home, the news brought renewed public attention to the well-documentedU.S. rootsof Uganda’s now infamous anti-homosexuality bill.What’s gone unnoticed in recent years, however, is U.S. patronage of other anti-humanrights legislation in Africa that promotes both homophobia and the persecution of peopleliving with HIV. The U.S. Agency for International Development, while publiclydenouncing laws that specifically criminalize HIV, has in fact financed their recent rapiddissemination across the African continent.Millions of dollars in USAID funds have helped spur what the Canadian HIV/AIDSLegal Network iscallinga “legislation contagion” that jeopardizes human rights inAfrica.
USAID involvement
A decade ago, not a single African country had a law that specifically criminalized HIVexposure. Now,at least 27African nations punish exposure. These laws open the door for the jailing—or worse—of people with HIV who practice safer sex; mothers who transmitthe virus to their children; and even those who have HIV but are undiagnosed.The spread of such laws is in part the result of a 2004 model law created byAction for West Africa Region-HIV/AIDS, a five-year project funded at just under $35 millionby
USAID.“By funding the creation—and wide dissemination—of a ‘model’ HIV-specific law,USAID has sent mixed messages from the United States,” said Edwin Bernard, editor of HIV and the Criminal Law. “On the one hand, the model law supports human rights bycriminalizing stigma and discrimination. But by using vague and imprecise language inits HIV criminalization statute it also creates fear, confusion and the further stigmatization of people living with HIV.”
A ‘human rights’ initiative
In 2004, AWARE, a project led by the North Carolina-based global health organizationFHI, convened a meeting of African leaders in N’Djamena, Chad. Two other U.S.groups,Population Services Internationaland theConstella Futures Group, provided
funds. The goal,according to FHI, was to design a legislative template for West andCentral African nations that would protect people living with HIV and those at risk of contracting the virus. But if the law was meant to protect human rights, its conceptionwas hasty and ill-conceived.“Many informants discussed the speed at which the model law was drafted anddisseminated,” said Daniel Grace, a doctoral candidate at the University of Victoria,British Columbia who is writing his thesis about the creation of the legislation.In three days, the group created a template. At least 14 African countries have adoptedlaws mimicking the U.S.-funded model.
Abuses ahead
The template contains a number of dangerous provisions.First, it punishes the “willful transmission” of HIV through “any means.” This phraseopens the door for wide interpretation, allowing governments to incarcerate a person practicing safer sex, regardless of whether he or she informs a partner of his or her status.The template also opens the possibility of punishment for mothers who pass HIV to their children, regardless of precautions taken to stop transmission.Second, the model law penalizes partners who do not disclose HIV status to a “spouse or regular sexual partner” within six weeks of diagnosis. In countries where HIV-positive
status can subject a person to social isolation, exile, physical abuse or even death, this provision has major implications.Women, said Frederica Stines, Africa program officer at theInternational Women’sHealth Coalition, will be the overwhelming victims of this criminalization creep. Theyare more likely to know their HIV status; more likely to be the victims of rape; morelikely to be thrown out of their homes because of their status; and less likely to be able toinsist on condom use. “Criminalizing is not prevention,” said Stines, who has more than adecade of experience promoting reproductive rights in Africa. “Who wants to know their status if they could be arrested?”Many governmentsadapted the model lawbut altered it in a way that allows for even broader abuses. Togo’s law makes any sex without a condom an illegal act, regardless of HIV status. Benin’s version makes it a crime for a person who knows he or she isinfected to engage in “unprotected sexual relations” without disclosing his or her status— no actual transmission of HIV is required. Burundi’s version says that the governmentcan try a “willful” transmitter for murder.
The Kato connection
It looks like Kato’s Uganda could be the next to catch the criminalization contagion.The country made headlines in 2009 when parliamentarians introduced alawthat wouldexecute homosexuals, legislation many said was inspired by U.S. evangelicals. Then, lastyear, with less media fanfare, members of parliament introduced a bill that, like theUSAID-sponsored N’Djamena law, would criminalize HIV transmission. Human RightsWatchdenouncedthe HIV/AIDS Prevention and Control Act, saying it will discouragetesting and encourage stigma. Its sponsors soldier on.“Kato was known for his fight for the removal of laws like this,” said Dr. Cheikh Traoré,senior advisor for sexual diversity at the United Nations Development Programme. Hefirst met Kato three years ago at an African AIDS conference. “For me, the best way for outsiders to honor his memory is to get behind the people who are in the country, the people who are ignored and isolated, but who try to change these laws.”
U.S. government speaks
Robert Clay, director of USAID’s Office of HIV/AIDS, denounced the very provisionsincluded in the law sponsored by his agency. “Criminalization of HIV/AIDS is notsupported by the U.S. government,” he said.When asked to address the discrepancy between the model law and USAID’s stance, hesaid the U.S. merely funded the AWARE project—and that the model produced at the N’Djamena conference is not representative of the agency. “We know stigmatization,stigma and discrimination, are really a driver of this epidemic,” he said. “And we need tomake sure that we don’t have those types of laws on the books.”
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