By Linda-Gail Bekker & Brian Kanyemba 
Good health is fundamental for a good life. It is the trampoline spring that determines how high we bounce and what stars we reach. When a disease spins out of control and threatens the ability of large segments of a population to obtain and maintain good health, it becomes a public health issue.
The HIV/AIDS epidemic has long been established as just such an issue.  While no longer a death sentence, once infected, a person faces a lifetime of chronic disease management, including adherence to daily treatment and an obligation to limit the spread of infection to others. These are both heady tasks, with multiple weak links and challenges, and undoubtedly a person’s life experience is changed irrevocably. We have now come to realise that the ability of individuals to protect themselves from HIV infection requires a critical combination of non-stigmatising information, non-discriminatory services and pragmatic access to a range of specific interventions such as condoms, lubricant, pre- exposure prophylaxis, clean needles and other harm reduction opportunities.
Following this Human Rights Day (10 December 2016) it can be firmly said that the occurrence of new HIV infections is now a violation of the universal right to health. Evidence-based biomedical, behavioural and structural tools required to prevent new infections have been identified, developed and are itching to step in and provide protection for all. The things holding them back are: lack of resources, a slow pace of implementation, and legal/social structures and attitudes.
The deficiency of resources, particularly in low- and middle- income countries, is concerning but difficult to accelerate. Legal and social structural barriers are complex, as their impact on healthcare is often indirect and their presence due to underlying cultural, religious or social norms. From a public health perspective, however these are essential to overcome for such structures fundamentally alter the environment in which healthcare is accessed and as a result how effective it can be. This is especially the case for vulnerable populations.
The Vulnerable

Fredrik Lernerd, Photographer. Before the raid: behind the scenes at Uganda’s gay pride – in pictures. The Guardian, 16 September 2016

Africa is particularly burdened by the HIV epidemic and the Sub-Saharan region alone accounts for 71% of the global total of people living with HIV.
In contrast to the developed world, Sub-Saharan Africa is dominated by a generalised epidemic, driven by heterosexual transmission in which young women are the most vulnerable. However, the high-risk populations known worldwide, such as men who have sex with men (MSM) and transgender people, are not less at risk in this situation and instead represent micro-epidemics that exist within the generalised problem.  MSM and transgender people remain 19 and 49 times more likely to contract HIV respectively, compared to the rest of the adult population.1

The deficiency of HIV treatment and prevention services to combat the generalised epidemic in Africa is a predominantly a resource problem. The deficiency of these services to combat the micro-epidemics in African MSM and transgender populations is an access problem, driven by existing legal and social structures.
Legal and Social Barriers

A map indicating countries where same-sex relationships are still criminalized. Source:

In 33 out of 54 African countries, criminal laws exist that ban sexual activity by lesbian, gay, bisexual, transgender or intersex (LGBTI) people.2  In some countries, the discovery of same-sex relationships can simply lead to incarceration, while in others there is the death penalty.
Criminalisation and the fear of incarceration within a community already at high risk for HIV has been shown by numerous studies to have a detrimental effect on controlling disease transmission and promoting engagement in HIV-related services. When anti-gay laws are in place, less MSM are diagnosed, fewer are on treatment and for those that are there is a higher rate of treatment failure.3 HIV-infected people who are not virally suppressed also have a higher chance of transmitting HIV. These legal structures affect healthcare professionals as well, who are less likely to provide HIV services to MSM or transgender people due to stigma or fear of their own incarceration.
Criminalisation acts to perpetrate anti-gay social norms by reinforcing the idea that same-sex relationships are wrong, says Richard Lusimbo of Sexual Minorities Uganda.4 Stigma, discrimination and the diminishment of safe spaces for engagement and open dialogue about these social norms are the result. Julius Kaggwa, a prominent activity in the Ugandan LGBT community, asserts that the main problem is misunderstanding and a lack of knowledge about the LGBT community.5

Some arguments have emerged that homosexuality is “un-African”. However, historically speaking this cannot be the case with many anthropological findings pointing to the existence and acceptance of homosexuality within ancient African cultures. The current anti-gay laws in Africa are predominantly colonial laws installed by Western governments.6

Marching for LGBT rights with the official gay flag of South Africa.

Julius Kaggwa and other African activists have called out the West, particularly anti-gay Christian missionaries from the United States, for their continued involvement in the promotion of anti-gay laws both to African churches and to government policy makers. Julius points out that in many African countries God’s law sits above all and as such influencing the church can have a powerful impact on societal values.5
In contrast, South African laws cater more favourably to the MSM population and in theory should offer greater protection. However, South African MSM also know that the law is not always a tangibly protective force and attacks and discrimination still happen. This is why even in countries where laws have progressed, there remains a strong need for perception changes and a conscious reduction in stigma.
And so the complexities of modern day African society and the continued insurgence of the HIV epidemic exist side by side. Regardless, the resulting criminalisation of HIV transmission is far more detrimental to public health than protecting these populations would be.
Criminalisation vs. Public Health
In the on-going battle for equality and acceptance, public health cannot be sacrificed. In light of Tanzania’s recent removal of HIV services to MSM due to their anti-gay laws, it is imperative to uphold and push for the right for all people to have equal and unrestricted access to healthcare services.
The HIV epidemic will not be eradicated by 2030, the UNAIDS target, if legal and social structures continue to trump public health initiatives. Furthermore, without a population in good health little can be done to advance other human rights or shift social norms. Public health is the basis on which a country can base all future development and it is essential that everyone, regardless of standing in society, has access.

  1. UNAIDS Report 2015
  2. Erasing 76 crimes: 76+ countries where same sex relationships are illegal. Online (available):
  3. Breyer C. Yes, do tell gay men the truth! Jamaica Gleaner. 2013. Online (available):
  4. Washington Blade, April 2016, Michael Lavers. Report: Anti-LGBT persecution increased under Uganda law.
  5. Maeve Sherlaw interview with Julius Kaggwa, September 2016. I’m an intersex Ugandan – life has never felt more dangerous.
  6. Sexual Minorities Uganda. Expanded Criminalisation of Homosexuality in Uganda: a flawed narrative. 2014:8-10. Online (report available for download):

Picture: Lernerd F, Photographer. Before the raid: behind the scenes at Uganda’s gay pride – in pictures. The Guardian, 16 September 2016.