Eleven Malawi sex workers win a victory for women’s rights everywhere!

On Wednesday, eleven Malawi sex workers won a victory for women’s rights everywhere. The story takes place in Mwanza, a town on the southern border with Mozambique. In September and November 2009, police conducted sweeps and pulled in a number of women presumed to be sex workers. Many were held overnight at the Mwanza Police Station. In the morning, the women were taken to the Mwanza District Hospital were they were forced to undergo blood tests, without any informed consent. The medical staff took down the women’s names and recorded the test results, which they handed to the police. The women were then charged with spreading venereal disease, “in contravention of section 192 of the Penal Code.” During the courtroom hearing, the charges were laid out, as were the women’s medical conditions, including their HIV positive status. For a number of the women, the reading of their name in court and the announcement of their HIV positive status was the first time they became aware of their situation.

On March 10, 2011, eleven of the women filed an application in the Blantyre High Court. They challenged the mandatory HIV tests, the use of HIV test results as evidence in their criminal cases, and the public disclosure of their HIV status in open court. The women said that the police and the hospital, effectively the State, had violated their constitutional rights.

Arguments were heard February 25, 2014, and the decision was handed down on May 20, 2015. The women were represented by well-known human rights attorney Chrispine Sibande, with support from the Southern Africa Litigation Centre, or SALC, and the Open Society Initiative for Southern Africa. Justice Dorothy nyaKaunda Kamanga presided over the High Court case.

On Wednesday, Justice nyaKaunda Kamanga ruled that subjecting the women to forced HIV testing was unreasonable and a violation of their rights to privacy, equality, dignity and freedom from cruel, inhuman and degrading treatment. Justice nyaKaunda Kamanga noted, “The authorities took advantage of the women being in police custody to force them to undergo the tests,”

Chrispine Sibande explained, “This case could not come at a more critical time. The Malawi government is in the process of finalising the HIV and AIDS (Prevention and Management) Bill. Draft versions of the Bill have included provisions allowing mandatory HIV testing of various groups, including sex workers. It is internationally accepted that forced HIV testing is counter-productive and violates human rights. We hope the judgment will ensure that these provisions are finally removed from the Bill. The judgment is also progressive in that it considered equality between men and women in relation to HIV testing.” Sibande further saw the ruling as “a victory for sex workers who are usually abused every day.”

Anneke Meerkotter, of SALC, concurred, “The case shows that it is possible for vulnerable groups to hold the government accountable when their rights have been violated.”

The Mwanza Eleven join women like Samukelisiwe Mlilo in Zimbabwe, Milly Katana in Uganda, Peninah Mwangi in Kenya, and countless others across the continent, who have struggled against the notion that HIV is a criminal offense; that the `war on HIV’ means the women, on one hand, and even more sex workers, on the other, must relinquish their Constitutional, civil, and human rights in the service of some greater good. The struggle continues.

(Photo and Image Credit: SALCBloggers)

In Zimbabwe, Samukelisiwe Mlilo says NO to the criminalization of women living with HIV

Samukelisiwe Mlilo

Samukelisiwe Mlilo and lawyers from the Zimbabwe Lawyers for Human Rights went to court this week to challenge the constitutionality of a Zimbabwean law that criminalizes “HIV transmission.” The story of Samukelisiwe Mlilo is the story of one woman in one household, and it is the story of criminalization of HIV transmission as part of a global assault on women.

On every continent, countries have passed laws that criminalize something called intentional HIV transmission. Each time, the law is draped in the language of protection: of society, of women, of `us’ from the monstrous `them.’ The specter that haunts these laws, however, is not predatory monsters, but rather women.

In Zimbabwe, the law that adjudicates “deliberate transmission of HIV” is Section 79 of the Criminal Law Code: “Deliberate transmission of HIV: Any person who, knowing that he or she is infected with HIV; or realising that there is a real risk or possibility that he or she is infected with HIV; intentionally does anything or permits the doing of anything which he or she knows will infect, or does anything which he or she realises involves a real risk or possibility of infecting another person with HIV, shall be guilty of deliberate transmission of HIV, whether or not he or she is married to that other person, and shall be liable to imprisonment for a period not exceeding twenty years.”

This law sits at the intersection of legal arguments, made last week by the Zimbabwe Lawyers for Human Rights, which point to the unconstitutional vagueness of the language of the law; and women’s lived lives, call it the existential tragedy, which is the story of Samukelisiwe Mlilo. Both the Zimbabwe Lawyers for Human Rights and Samukelisiwe Mlilo argue that the law targets women.

Samukelisiwe Mlilo is 36 years old, a mother of three young children, HIV positive, separated from her husband. In August 2009, Mlilo was pregnant with her second child. She went in for prenatal care, and was found to be HIV positive. She struggled to accept her status, and then, fairly quickly, informed her then-husband. At first, things were ok, but soon the two began fighting. According to Samukelisiwe Mlilo, her husband became violent and physically abusive, but he did stick around and help with childcare, after the second child was born. Finally, in 2010, Samukelisiwe Mlilo went to the police, reported her husband’s abuse, got a restraining order, and they formally separated. Her husband was given visitation rights, and so the fighting and abuse continued. When the two separated, Samukelisiwe Mlilo was three month pregnant, which neither she nor her husband knew. He rejected the child, who was born June 2011. Then, out of the blue:

One day I was summoned to Entumbane police station to answer charges of deliberately and knowingly infecting him with the HIV virus. I informed the policeman that I disclosed my HIV status to this man who accepted it. Now he is lying saying I didn’t disclose my status to him because we had separated. Honestly I did not know what was happening … I had no one to ask to take care of my children. I stayed alone with my children and the child minder. There was no one to take care of my children … It was difficult, especially when the case was covered in the newspapers. I could not work. I could not face my co-workers. I requested for emergency leave, which was denied. I was forced to interact with people, despite the difficult situation I was in. People were calling me names. It was indeed a difficult time. At that time I was also supposed to continue looking after my children. I had to face people and attend to phone calls from relatives, who had seen the story in the paper. If I had not been a woman, I would not have faced any of these challenges.”

Due to requirements women face when accessing antenatal care, women more regularly learn their HIV status. Thus, the burden of informing has been placed largely on women, and women then have to do the calculus. Around the world, women who inform their partner that they are HIV positive often face violence and death, expulsion, homelessness, stigma, and poverty. Additionally, they are more often than not left to care for the children on their own in a hostile environment.

Criminalization adds two elements to this toxic brew. First, it allows for the violation of the right to privacy and confidentiality. We should not know Samukelisiwe Mlilo’s name, but `thanks’ to the criminalization laws, we do. The second toxic element is prison. While prison for any woman is a terrible thing, her imprisonment is a living death sentence for her children.

Last week, the Zimbabwe Lawyers for Human Rights released a video telling the story of Samukelisiwe Mlilo, and of women around the world. It concludes: “Say NO to criminalisation of HIV. Criminalisation harms women.” In the words of Samukelisiwe Mlilo, “If I had not been a woman …” Being a woman is not and cannot become a crime.


(Video Credit: YouTube / Zimbabwe Lawyers Committee for Human Rights / HIV Justice Network)

Uganda protects women to death

This past Tuesday Uganda’s Parliament passed something called the HIV Prevention and Management Bill. The law will not prevent the transmission of HIV. Everyone knows this. It will worsen the lives of all living with HIV. It will threaten the lives of LGBTIQ persons, and in Uganda, gay and lesbian identity is in the eye of the beholder. It’s not about being gay; it’s about being called gay. This law will have particular and catastrophic effect on women.

The law institutes mandatory HIV testing for pregnant women and their partners. Ostensibly it’s meant to `protect’ women and younger girls whose sexual partners conceal that they have Aids or are HIV-positive. It doesn’t protect women and girls. It endangers them.

The law also allows doctors to reveal the HIV status of those who have been tested. In Uganda, where HIV prevalence is higher among women and much higher among younger women, activists argue, the combination of mandatory testing and sharing of information is an invitation to domestic violence and even murder, at the hands of a partner who claims the woman brought the virus into the home.

That’s what protecting women looks like.

According to the International Community of Women Living with HIV, Eastern Africa: “The passage of the HIV Prevention and AIDS Control Bill represents a dangerous backslide in Uganda’s efforts to respond to HIV. While the bill may have been intended to facilitate and improve the HIV response in Uganda, the bill contains many poorly conceived and fear-induced provisions that have no place in a public health and human-rights-based response to HIV. As passed, this bill will actually weaken Uganda’s HIV prevention efforts and will have a detrimental and disproportionate impact on the rights of women and girls and in particular women living with HIV.”

Long-term HIV activist Milly Katana put it more succinctly: “All I can say now is doomsday has landed on all the people of Uganda. You will see fewer and fewer people testing.”

Margaret Happy, the Sexual Reproductive Health and Rights Officer of the International Community of Women Living with HIV Eastern Africa, agrees: “Uganda is already facing a serious backslide from its early advances in responding to HIV, Uganda is currently one of three African countries experiencing increases in their HIV prevalence rates previously from 6.5% to 7.3 %. The passages of this Bill will only serve to increase this backslide and the President must save Uganda from this backlash.” Lillian Mworeko, Regional Coordinator of the ICW Eastern Africa, adds that the legislators “chose to act out of fear and unfounded hysteria.”

“For Uganda to address its HIV epidemic effectively, it needs to partner with people living with HIV, not blame them, criminalize them, and exclude them from policy making. The president should not sign this bill and instead ensure a rights-based approach, recognizing that people living with HIV will prevent transmission if they are empowered and supported,” said Dorah Kiconco, executive director of Uganda Network on Law, Ethics & HIV/AIDS.

Dr Lydia Mungherera, of TASO, The AIDS Support Organization (TASO), explains: “This clause is taking us back centuries when all the progress we have made in fighting this pandemic is going to be ruled out. They are criminalizing people who are having consensual sex.”

Finally, Dianah Nanjeho, from UGANET, Uganda Network on Law, Ethics and HIV/AIDS warns that the bill will force HIV positive people, and especially women, underground: “The only path by which someone gets onto treatment is by taking a HIV test. People who don’t know their status are going to shun the health system and say ‘look I can’t go to take a HIV test because the results are going to be displayed in court some day. We will have someone who is HIV positive in the docks but without any justice system to fend for them.”

In every way, this Bill attacks women, and women know this. But Museveni will almost undoubtedly sign the Bill into law. Why? ““Because he knows the voters are going to like this bill it will be popular with him.” Who cares about science? Who cares about the knowledge of those, largely women, who have toiled in the fields for decades and dedicated their lives? Most importantly, who cares about the women? Really, all one must do is claim that protecting women is one’s goal, and it’s all good.


(Photo Credit: ICWEA)

Ask Peninah Mwangi about the PEPFAR pledge

Faced with violence against sex workers in Kenya, Peninah Mwangi noted, “The death of a sex worker is the death of a woman, a mother, a sister, a Kenyan.”  Mwangi should know.

Peninah Mwangi is the Executive Director of the Bar Hostess Empowerment and Support Programme, BHESP, located in Nairobi, Kenya. BHESP organizes, advocates, and empowers sex workers. Before the recent elections, BHESP organized `awareness campaigns’ with bar hostesses and their customers, to make sure that everyone voted, that no one missed voting due to drunkenness. It was a critical citizenship participatory popular education program run from one bar, and one barstool, to the next.

BHESP has marched and lobbied for decriminalization and legalization of sex work. They have marched and lobbied to end police violence against sex workers. At the same time, they have established drop-in centers, legal services, hotlines and havens. The Bar Hostess Empowerment and Support Programme have improved and saved women’s lives in Kenya, and are a model for the rest of the world.

They are supported by Pathfinder International, the Open Society Foundations; the Global Fund to Fight AIDS, Tuberculosis and Malaria. Almost every major organization that matters admires and supports the great, innovative and urgent work that BHESP provides. The large exception, the elephant-in-the-room exception, to this is PEPFAR, the US President’s Emergency Plan for AIDS Relief. Why? Because Peninah Mwangi and her colleagues won’t take the `anti-prostitution pledge.’ Apparently sex work is a far greater `emergency’ than AIDS.

Today, the U.S. Supreme Court is hearing a case in which opponents to the `pledge’ argue that the `pledge’ violates first amendment rights and impairs attempts to improve the working conditions of sex workers. Proponents claim the `pledge’ rescues women from trafficking and worse.

Behind, or obscured by, the legal debate are the sex workers themselves. On one hand, researcher after researcher has noted that the PEPFAR pledge harms any campaigns or programs among sex workers to reduce and eradicate HIV and AIDS. Criminalization of sex work increases risk factors for AIDS among sex workers. Transnational and global criminalization of sex work widens the pool of those increasingly at risk into a global ocean. As some have noted, it’s a dark ripple effect, which keeps on spreading.

Here’s one example of the impact of the `pledge’: “As a result of the pledge, in many instances information sharing about successful programming with sex workers has nearly ceased. Sex work programming has become a taboo topic; organizations that receive other funding are likely to be interested in or to seek US government contracts and funds. Others with specific missions have reigned in all activities unrelated or tangentially related to their missions; this has affected many sex work projects the world over. The anti-prostitution pledge has prevented the sharing of information about successful programming and prevented scaling up successful operations.”

Prevented the sharing of information. Silence. Equals. Death. The death of a sex worker is the death of a woman, a mother, a sister, a `fellow citizen’, a human being. Ask Peninah Mwangi. She should know.


(Video Credit: Josephine Nekesa Were / YouTube.com)