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DEATH PENALTY: Uganda Drafts Bill to Execute HIV Infectors

Evelyn Kiapi Matsamura

KAMPALA, Sep 13 2006 (IPS) - In 1999, an HIV-infected 30-year-old man named Fred Mwanga shocked the country when he raped a three-month-old baby in a Kampala suburb.

Even more upsetting, Mwanga’s action was not an isolated incident. The rate of HIV-infected adults sexually abusing the nation’s most vulnerable citizens is rising. As these ill men prey on the minors, they spread the deadly HIV virus. Already one in 10 Ugandans is HIV-positive or has full-blown AIDS.

Now, however, the Ugandan government is drafting a bill to execute offenders who knowingly infect minors with HIV.

If passed, any HIV-infected person who performs a sexual act with another person who is below the age of 18 years commits a felony called ‘aggravated defilement’ and, if convicted by the high court, will be executed, Elioda Tumwesigye, the chairman of the parliamentary committee on HIV/AIDS said in August. Defilement refers to the act of sex with a child 18 years or younger, with or without consent.

People like Mwanga could face death if Parliament passes this legislation.

Human rights groups in Uganda believe the bill is off target. Instead of putting unnecessary emphasis on death sentences, more effort should go to fighting HIV/AIDS and in AIDS awareness campaigns, they say.

In addition, more state investment should be given to the police and investigating agencies to ensure crime prevention and child protection, Livingstone Sewanyana, executive director, of the Kampala-based non-governmental organisation, Foundation for Human Rights Initiative, told IPS.

“When you subscribe to the death penalty, you give an unacceptable excuse to the state to forfeit or forget its cardinal function of maintaining law and order,” Sewanyana said.

When a person sexually abuses a minor, that in itself amounts a failure of the state to prevent it, he argues. “For a state whose duty is to protect, to put emphasis on executing citizens, I think that would be abdicating its responsibility.”

This bill is one of many the Parliament will be discussing in its attempt to cope with the widening HIV/AIDS epidemic. Previous bills have been drafted and shelved for years. This parliamentary session, however, Tumwesigye said he is confident action will be taken because the problems are spiralling out of control.

Early last month, the chairman of the Uganda Law Reform Commission, Joseph Kakooza presented a brief on the draft HIV bill, which outlines in part the government’s alarm over the rise of sexual abuse of minors.

“There is a big concern about people who infect others with HIV. In some countries, if an HIV positive person knowingly infects another, he or she is charged. In some countries, such people are referred to as murderers,” Kakooza told members of Parliament at an August hearing.

Uganda’s bill specifically targets those who infect children with HIV through sexually abuse.

Sexual abuse in Uganda is on the rise, according to a report by the Kampala-based child protection organisation, The African Network for the Prevention and Protection against Child Abuse and Neglect (ANPPCAN), Uganda Chapter.

A study released last year showed that 82.9 percent of the 16,800 abuse cases reported for three months in 2004 were sexual. This was an increase from previous a report which showed that 4,495 minors were sexually abused in 2002. Girls were the major victims of abuse, accounting for 85.8 percent of the cases reported, the document said.

Already in Uganda, defendants can be put to death if found guilty of rape and defilement, but judges have the discretion to give a convict a lesser sentence. So far, no one has been sentenced to death for this particular crime.

In addition to discussing whether death should be a mandatory penalty, parliamentarians also will debate whether a person who rapes a toddler should be given the same punishment as one who defiles a teenager. Thus, the problem for the government is how to define the age of consent. They have asked for the age of consent to be reduced from 18 to 16.

Others disagree, however. Many university girls have fallen victim to HIV-infected men, known locally as “Sugar Daddies”, who will give the girls material things in exchange for sex. There are some campaigns now to try to stop this “cross-generational” sex.

Human rights groups worry that a mandatory death penalty for sex offenders will drive the problem underground. That is because the ANPPCAN report also stated that 90 percent of the alleged perpetrators were close relatives. That is where prosecution of criminals runs into a problem.

Many parents preferred to resolve abuse cases out of court because they do not want to see their relatives being dragged to prison for life, or worse still, hanged.

According to the report, sexual abuse cases reported to the police and in the media were far higher than the number of cases settled by the courts. This implies, the ANPPCAN report said, that reported cases do not go through the penal system and instead are privately. Out of court settlements are common in Uganda, with compensations in the form of money, livestock and “maintenance” packages if a girl gets pregnant.

“Child sexual abuse is a major problem that calls for intensified advocacy against this problem,” the report concluded.

There have been several debates on capital punishment, especially during the constitution-drafting process that ended in 1995. However, the majority of the Constituent Assembly delegates voted to retain the death penalty amidst opposition from various rights groups.

Uganda has executed some 377 people, including one woman, since 1938, according to records from the Uganda Prisons Department. President Yoweri Museveni’s government has put 51 people to death since it took over power in 1986.

Currently, some 555 prisoners, 27 of whom are women, sit on Uganda’s death row, according to Uganda Prisons Department.

Rights group believe the death penalty is a violation of human rights and a right to life. It not only denies the judicial system an opportunity to correct mistakes, but also denies the victim all possibility of rehabilitation.

“We generally are convinced that the death penalty is not a punishment. After all, everybody will (one day) die. It (death penalty) does not provide an opportunity for reform. The idea behind punishment is to enable a person to reform and for society to change its ways,” Sewanyana said.

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