In July, Uganda’s constitutional court annulled an anti-gay legislation signed into law earlier this year. It ruled that the bill had been passed without the requisite quorum and therefore was illegal. The Ugandan judiciary’s decision came as heart-warming news at a time when stories of blood and tears dominated headlines. But it is still too early to celebrate; the struggle goes on. Uganda’s attorney-general has demanded that the court reinstate anti-gay law.
At the 20th International AIDS Conference (AIDS 2014) at Melbourne, Uganda was in the dock for its anti-gay law. Delivering the Jonathan Mann Memorial Lecture at the conference, Michael Kirby, a former Justice of the high court of Australia and a passionate advocate of human rights, talked about the horrible new laws that were spreading throughout Africa, and the violence that they bred. “That violence sets back the struggle against AIDS,” he said. Kirby cited the example of David Kato. Kato, an outspoken, Ugandan gay activist was hammered to death in his rough-and-tumble neighbourhood in 2011 for opposing the bill to execute gay people, then under consideration in his country.
Uganda took a step forward. Will it now take another step backward? Will its example be followed by others? The jury is out.
Many countries across the world, including India, continue to have laws in their statute books which criminalise vulnerable populations. This is not just a human rights issue but an economic issue and a public health issue. Bad laws are key barriers to an effective response to HIV. “The criminalisation of sex work, drug use, same sex relationships among consenting adults in a large number of countries hinders reaching people at higher risk of HIV(human immunodeficiency virus) infection with the services that have been shown to prevent and treat HIV,” notes The GAP report by UNAIDS, released in July.
The number of people who are newly infected with HIV is continuing to decline in most parts of the world and AIDS-related deaths have fallen by 35 per cent since the peak in 2005. But punitive and discriminatory laws threaten to nullify all the efforts that are being made to move towards a world with zero new HIV infections, zero discrimination and zero AIDS-related death.
“Same sex sexual acts are criminalised in 78 countries and are punishable by death in seven countries. Sex work is illegal and criminalised in 116 countries. People who inject drugs are almost universally criminalised for their drug use or through the lifestyle adopted to maintain their drug use. Forty two countries have laws criminalising HIV non-disclosure, exposure and transmission,” says The GAP report.
What happens in Uganda is being keenly watched. And at the time of writing, Nigeria’s anti-homosexual law remains. Should India be worried? Yes, it should.
India is investing more domestic resources to fight HIV and AIDS. It now has progressive legislation on transgenders. But we also have the 2013 ruling by the Supreme Court which has recriminalised sex between gays by reversing an earlier Delhi high court ruling that legalised homosexual behaviour.
This is not a trivial matter. As Indian activists who gathered in Melbourne pointed out, the return of the Section 377 of the Indian Penal Code, a remnant from the colonial era, is creating havoc with HIV prevention work. This archaic law criminalises sexual activities “against the order of nature.” Its return has hit homosexuals and transgenders the most. Ashok Rao Kavi, a prominent gay rights activist, spoke of the “incredible sense of despondency” after India’s Supreme Court reinstated a ban on gay sex last December, following a four-year period of decriminalisation that had helped bring homosexuality into the open in this country. Temporarily, there had been a “burst of pride,” he said. But things are back to square one now. There is “new fear” among the LGBT community. And parents of some LGBTs have been calling helplines to ask if their sons could be arrested, Kavi said.
It is true that treatment is not being denied to anyone because of his/her sexual orientation but fear is making communities that are hard to reach even more inaccessible. India is among those countries where new HIV infections have shown a downward trend in recent years. Between 2005 and 2013, the number of new HIV infections went down in this country by 19 per cent. Yet, India still has the third largest number of people living with HIV in the world — some 2.1 million, and HIV treatment coverage is only 36 per cent in the country.
Dr B.B. Rewari, a senior official with India’s Department of AIDS Control (previously known as National AIDS Control Organisation) says that the roll out of antiretroviral therapy (ART) has been the tipping point in India’s fight against HIV and AIDS. Dr Rewari talks about how the that provided a motivation for people to come forward and get tested. Wider availability of free ART has saved over 1,50,000 lives so far and is expected to save nearly 5,00,000 lives by 2017.
This is good news. But a bad law in the statute books can derail the best of plans. In 2007, the HIV prevalence among men-who-have-sex with men (MSM) in India was as high as 7.4% according to one study. Fear of the law and fear of being “outed” if they seek diagnosis and treatment can keep many such people away from health professionals and vital medicines. Complicating matters further, many gay men in the country, as elsewhere, also have heterosexual relationships and are married to women. This means they are potentially a bridge population between high-risk groups and general public. By continuing with the status quo, we put many individuals and families at risk. This cannot remain the road ahead.
At Melbourne, Steve Kraus, Director of the UNAIDS Regional Support Team for Asia and the Pacific, told me about the need to work towards a “ legal and policy environment which works for people and not punish them.”. As Kraus points out all the funds and the anti-retroviral medicines will not help us to get to zero AIDS till we embrace the communities most in need sex workers, people who use drugs(PWUD), transgenders, men who have sex with men and others.
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