In sub-Saharan African prisons, the prevalence of HIV ranges from twice as high to fifty times as high as levels for the non-imprisoned in the same regions. As part of her research on prison health monitoring for a new Human Rights Watch report, Todrys toured 16 Ugandan prisons and interviewed 164 inmates. Overcrowding, poor ventilation, sex trading, and lack of condoms led to increased infections. Yet despite high rates of transmission, only one of the 223 prisons in Uganda has a medical facility equipped to provide adequate treatment for HIV/AIDS and tuberculosis. Only one-tenth of one percent of PEPFAR funds to Uganda are directed towards prison health.

According to Todrys, “There is a better approach: fund human rights-based approaches, which emphasize government accountability and evidence-based programs—that is, programs that have been shown to work. Pressuring the Ugandan government to end abusive practices that increase HIV transmission, for example, costs very little compared with treating HIV after infection has occurred.”

The abuses that must be addressed include the slow-moving criminal justice system that leads to overcrowding in prisons, the criminalization of men having sex with other men, which leaves all-male prisons devoid of condoms, and forced labor in prisons that worsen the health of those suffering from HIV/AIDS. Ugandan HIV programs must be scaled up to address the massive HIV epidemic in prisons, and Todrys insists that a rights-based approach is the only way to reach this marginalized population.

Photo: Olek Remesz via Wikimedia Commons

As written, the draft law threatens human rights and progress toward universal access to treatment. The most alarming changes include the criminalization of intentional transmission of HIV, which could result in life imprisonment; compulsory testing of drug users, pregnant women, sex workers, and victims and charged offenders of sexual violence; and forced disclosure of HIV status. The government’s role in providing access to affordable treatment has been removed from the legislation.

“We know what works and what doesn’t in fighting HIV,” said Beatrice Were of the Uganda Network on Law, Ethics & HIV/AIDS. “This bill, unfortunately, is full of ineffective approaches that violate human rights and will set us back in our efforts to fight the AIDS epidemic and expand HIV programs nationwide.”

The bill’s most troubling traits are particularly unjust to women and high-risk groups. Because women are tested for HIV during pregnancy, a disproportionate number of women will know their HIV status and will thus be prosecuted disproportionately. The bill does not consider and protect a women’s inability to negotiate condom use or to tell a partner about her status — a partner who may have transmitted the disease to her in the first place. The HRW analysis finds that women who transmit HIV to their infants by feeding them breast milk would face criminal prosecution. Although the legislation exempts mother-to-child transmission “before or during the birth of the child,” the law does not protect mothers after child birth — the period of time when breastfeeding occurs. Additionally, there is little mention of counseling or support services for minors.

In short, the bill fails to provide a legal framework favorable to the effective national management of the epidemic. It fails to chip away at the more elusive yet fundamental perpetuators of the disease: stigma and discrimination.

The bill also arrives on the heels of a widely condemned piece of pending legislation, the Anti-Homosexuality Bill, which “prohibits and penalizes homosexual behavior” in Uganda. The bill, proposed on October 14, 2009, contains a life imprisonment punishment for an “offence of homosexuality.” Punishment by death is recommended for those committing “aggravated homosexuality,” whereby the “offender”— or, a partner in a homosexual act — is HIV-positive, or the other partner is disabled or under 18 years old. Those charged would be forced to take an HIV test. The bill also carries penalties for individuals who know about gay persons but do not report them, striking a severe gash in the progress of HIV prevention and treatment efforts by alienating this high-risk group.

The bill will enter Parliament shortly and will most likely become law in early 2010. Its myriad egregious clauses, such as the death penalty, could be altered slightly, but their fates remain to be seen. The gross human rights violations that lurk in the bill — discrimination of vulnerable groups, roadblocks to treatment, privacy of HIV status — will no doubt be carried through to law in some capacity, and these violations bear a striking resemblance to those in the HIV/AIDS bill.

Despite its numerous critiques of the proposed HIV/AIDS law, the HRW report does not ignore some welcome attributes of the legislation, noting that several changes may “improve the potential for human rights protections.” For example, neglecting to inform one’s sexual partner of HIV status and failure to protect oneself from transmission is no longer criminalized, and children born to HIV-positive women will receive treatment and care. Still, the bill lacks a fundamental commitment to protecting the rights and the health of its citizens.

In early December, Elizabeth Mataka, the UN Special Envoy on AIDS in Africa, added her voice to those of the bill’s dissenters. “I emphasize the importance of creating a social environment conducive for HIV prevention and to refrain from laws that criminalize the transmission of HIV and stigmatize certain groups in the population,” she remarked in Kampala, Uganda, on December 2. “These laws can only fuel the epidemic further and undermine an effective response to HIV.”

Her lips to Parliament’s ears.

Photo © 2008 Fred Abrahams/HRW

The recent humanitarian release of Libyan citizen Abdalbaset al-Megrahi from prison in Greenock, Scotland, because of his poor health, and his subsequent “hero’s welcome” in Libya is strikingly incongruous when compared with the tragic fate of Fathi al-Jahmi, a Libyan prisoner who also suffered from poor health, including coronary artery disease, congestive heart failure, hypertension, and diabetes.

Libyan authorities held Mr. al-Jahmi prisoner in Tripoli on two occasions for a total of six and a half years. His “crime”? The peaceful exercise of his fundamental rights of freedom of expression and association. He advocated for democratic reforms and free elections, as have many other Libyan citizens whose outspoken opinions have led to their imprisonment. Additionally, Mr. al-Jahmi had the audacity to directly criticize the Libyan government and its leader of 40 years, Colonel Mu’ammar al-Quaddafi.

Mr. al-Jahmi’s second arrest took place in March 2004. In February 2005, a medical doctor representing Physicians for Human Rights (PHR) visited him in a special detention facility and reported that he suffered from diabetes, hypertension, and heart disease. PHR “called for al-Jahmi’s unconditional release and access to medical care.”

However, following a secret trial in May 2006 that failed to meet fundamental fair-trial standards, the court ruled that Mr. al-Jahmi was mentally unfit to stand trial. Confinement in a psychiatric hospital, for an entire year, followed this ruling. He was denied both medical care and family visits. In mid-2007, after a diagnosis of congestive heart failure, the Libyan authorities granted Mr. al-Jahmi a transfer to Tripoli Medical Center and later claimed he was a free man.

PHR and Human Rights Watch representatives, including PHR advisor Dr. Scott Allen, visited Mr. al-Jahmi at the Tripoli Medical Center in mid-March 2008 — a repeat visit facilitated by the Quaddafi Foundation, which is headed by Col. Quaddafi’s son, Saif al-Islam. They found that Mr. al-Jahmi’s health had improved with better medical care and that he was not “mentally disturbed.” However, his health was still substantially worse than at the time of his arrest, and he remained very ill, so much so that the PHR doctor recommended immediate invasive testing and suggested possible angioplasty or bypass surgery. Because Mr. al-Jahmi did not trust the Libyan authorities, the PHR doctor said that it could prove necessary to perform such follow-up procedures abroad.

When the two rights organizations’ representatives asked Mr. al-Jahmi if he was free to leave the medical center, he said no. When they asked him if he wanted to go home, he said yes. They also reported that security officers controlled access to visitors and that neither Mr. al-Jahmi nor his family could “freely make decisions about his medical care, due to real or perceived pressure from the government.”

Mr. al-Jahmi’s family subsequently reported that he was denied regular nursing care and critical medical treatment. Guards flanked his door and confined him to his room, which they locked from the outside. During the family’s daily visits, limited to two hours, his wife and children brought him food and did what they could to make him comfortable. But they also watched his health steadily deteriorate, and by early 2009, they said he was no longer able to move, eat, or drink without assistance and could speak only with great difficulty. In early April 2009, Mr. al-Jahmi’s family requested his transfer to the intensive care unit, but this request was not granted until, on May 3, he lapsed into coma.

The International Human Rights Network of Academies and Scholarly Societies, of which I am executive director, and many other concerned groups, sent repeated and urgent appeals for Mr. al-Jahmi’s release on humanitarian grounds for health reasons to Col. Quaddafi and Libyan government authorities. We did not receive a single direct reply to our pleas. Only through an international organization, acting as an intermediary in a private process between our group of national academies and the Libyan government, did we learn that the Libyan authorities claimed, contrary to information we deemed reliable, that Mr. al-Jahmi was a free man, in the hospital of his own choice, and receiving appropriate medical treatment.

Subsequently, we learned from Mr. al-Jahmi’s brother that on May 5 of this year the apparently frantic Libyan authorities had Mr. al-Jahmi flown to the Arab Medical Center in Jordan, presumably to avoid the accusations and humiliation that would follow if they allowed him to die in a Libyan prison, as rights organizations and others had feared they would do. Mr. al-Jahmi was taken out of the country, still in a coma, and in the company of security guards who did not take along any of his essential medical records. Only his son was permitted to accompany him. Mr. al-Jahmi reportedly never regained consciousness. He was 68 years old and an internationally recognized democracy advocate and prisoner of conscience when he died on May 20, far away from his home and family, with Libyan security guards looking on.

The Libyan authorities callously denied Mr. al-Jahmi the medical treatment he required during much of his imprisonment and the last months of his life. Then, when clearly on his death bed, in an apparent attempt to avoid embarrassment, they took him away from his home and family to die in Jordan. Thus, it was a cruel and deeply offensive irony when, just four months later, another seriously ill internationally known Libyan prisoner was flown by Libyan authorities, in the company of Col. Quaddafi’s son, to a “hero’s welcome” in Tripoli. That man was Abdalbaset al-Megrahi, a convicted mass murderer, known to the world as the Lockerbie bomber.

The authorities in Edinburgh, Scotland, said they had released Mr. al-Megrahi because he was dying of prostate cancer and should be permitted to spend what time he had left at home, in the company of his family. Col. Quaddafi’s son reportedly said he was deeply grateful “to the Scottish government for taking this brave decision [Megrahi’s release] and for taking into account the special humanitarian circumstances.”

If the Libyan authorities had shown any semblance of courage or understanding or compassion toward Mr. al-Jahmi, their own citizen and a truly courageous and selfless human being, and had responded to the many repeated and urgent appeals from around the world for his humanitarian release, surely this brave and clearly innocent man would be alive today. Instead, the Lockerbie bomber is now at home among his family and friends, benefiting from the kind of medical care that could have saved Mr. al-Jahmi — a man who never got the hero’s welcome he so deserved.

This blog post was endorsed by the Executive Committee of the International Human Rights Network of Academies and Scholarly Societies.