We thank the Committee for this opportunity to brief it regarding legal and policy impediments to effectively responding to HIV in Africa.

The Southern Africa Litigation Centre (SALC) works with lawyers and civil society in ten countries in southern Africa to strengthen the rule of law and human rights through public interest litigation. Since 2007, SALC’s HIV Programme has focused on strengthening the rights of people living with and affected by HIV in southern Africa through supporting public interest cases in domestic courts. In the past four years, SALC has worked on the following cases, among others:

•  A challenge to the unfair dismissal and mandatory testing of two former employees of the Zambian Air Force with Zambia AIDS Law, Research and Advocacy Network (ZARAN) and the Legal Resources Foundation of Zambia.
•  A challenge to the coerced sterilization of HIV positive women in public hospitals with Namibia’s Legal Assistance Centre and Namibian Women’s Health Network.
•  A challenge to women’s unequal access to property at the time of divorce with Women and Law in Southern Africa-Malawi.

We wish to highlight three major areas where the law and practice in southern Africa hinders an effective response to HIV: women’s equitable access to property and inheritance; women’s sexual and reproductive health; and discrimination against sexual minorities, particularly lesbian, gay, bisexual and transgendered (LGBT) communities and sex workers. It is important to note that when we refer to “southern Africa” in this submission we are specifically talking about the following countries: Angola, Botswana, Democratic Republic of Congo, Lesotho, Malawi, Mozambique, Namibia, South Africa, Swaziland, Zambia, and Zimbabwe. 

Women’s Inheritance and Property Rights

As has been exhaustively documented, women bear the brunt of the HIV epidemic in southern Africa both in terms of caretaking roles for others living with and affected by HIV and with respect to acquiring the virus in greater numbers. Despite this, most countries in the region continue to have and enforce laws, policies and practices which discriminate against women.

Laws in southern Africa continue to discriminate against women with respect to inheritance and property rights. For example, in Malawi section 17 of the Married Women’s Property Act of 1882 has been interpreted to require that at the time of divorce, women show monetary contribution to property in order to claim their share of the marital property. In Lesotho, section 10 of the Chieftainship Act of 1968 plainly provides only for male succession to chieftainship. In one case, the eldest child of a chief has had her succession to chieftainship challenged by other male relatives, who argue that she is not permitted to inherit such a title since the law only provides for male succession. In Botswana, under customary law only men are permitted to inherit from a parent’s estate regardless of the particular circumstances of each situation. All of these laws are currently being challenged in domestic courts, but unfortunately many such laws remain throughout the region. It appears that without being confronted with litigation, governments are unwilling to change such laws through executive and parliamentary processes. 

Women’s Sexual and Reproductive Rights

Despite growing evidence that woman struggle to access sexual and reproductive health services and suffer violations of their sexual and reproductive rights throughout the region, very little law or policy addresses the need to strengthen women’s sexual and reproductive rights as a critical part of limiting women’s vulnerability to HIV. 

There is clear evidence that HIV positive women are being subjected to sterilization without their informed consent in Namibia. Furthermore, there is growing evidence that such practices have occurred in South Africa. In Namibia, as documented by the Namibian Women’s Health Network, informed consent prior to sterilization was inadequately obtained in dozens of cases due to one or more of the following factors: consent was obtained under duress, for example while a woman was in labour on her way to the operating theatre; the consent was invalid because the woman was not informed of what she was signing; and/or there was a failure to provide full and accurate information regarding the sterilization procedure. 

Moreover, HIV positive women in southern Africa continue to face discrimination when attempting to access sexual and reproductive health services and rights. For example, HIV positive women in Namibia continue to report discrimination by medical personnel at public health facilities, especially when pregnant. In one case, a doctor at a public health facility in Namibia told a young HIV positive woman that she was “dirty” due to her HIV status. In another case in Namibia, a woman living with HIV was told by medical personnel that she should not be pregnant given her HIV status. This discrimination extends to the employment context. In Botswana, one woman’s employment with an organization was conditioned on her signing a contract agreeing not to get pregnant because she was HIV positive. 

It isn’t only that violations of HIV positive women’s sexual and reproductive rights have not been addressed, but too little emphasis is placed on strengthening women’s sexual and reproductive rights as a critical component to effectively addressing HIV within southern Africa. Currently, every country in southern Africa, except South Africa, limits women’s access to abortion. Even in South Africa, women’s access to legal abortion is severely restricted. Such laws limiting women’s rights tend to have a disproportionate impact on women living with HIV. For example, in one case, a young HIV positive woman in South Africa was denied access to a legal abortion unless she consented to be sterilized. She understood this coercion to be due to her HIV status.

Similarly, access to and availability of health services to address cervical cancer remains severely limited. Research indicates that women living with HIV are disproportionately affected by cervical cancer. In a region which has the greatest number of women living with HIV and where cervical cancer is the primary cause of cancer death among women, providing services to prevent, detect early and treat cervical cancer remains scant with governments doing little to change that.

Rights of Sexual Minorities

Most countries in southern Africa criminalize sodomy. The criminalization of sodomy and same-sex relationships does not just affect the private sexual lives of people in same-sex relationships, but it has served to drive members of the LGBT community underground, limiting their ability to access needed health services.  In Malawi, the Government continues to arrest and charge individuals suspected of engaging in same-sex relationships. In December 2009, the police arrested Steven Monjeza and Tiwonge Chimbalanga—two biological men—for holding an engagement ceremony, despite no evidence that they had actually engaged in sexual relations. Both were mistreated and claimed they were forced into confessing. They both also stated they were subjected to a medical examination without their consent. 

More recently, in April 2011, the police again charged two prisoners already serving time in a Malawi prison of committing “unnatural offences between males” based on the testimony of a fellow prisoner. One of the individuals charged states that he was beaten into confessing and that both were subjected to a medical examination without their consent.

The situation in Malawi is similar to many other countries in the region. Zimbabwe police and security officials continue to harass members of the Gays and Lesbians of Zimbabwe (GALZ). In May 2010, Zimbabwean officials raided the GALZ offices arresting two employees for possession of pornographic materials. Charges against both employees were eventually dismissed but the harassment of GALZ employees continues, making it difficult for the organisation to continue its work.

Similarly, sex work and/or activities associated with sex work continue to be criminalized throughout the region. In addition, in a number of countries law enforcement officials harass and target sex workers under broad criminal provisions such as laws criminalizing vagrancy and disorderly conduct. Furthermore, officials particularly target sex workers for other rights violations due to the vulnerable nature of their job. In September 2009 in Mwanza, Malawi, sex workers were allegedly subjected to a mandatory HIV test upon arrest and to public disclosure of their HIV status. Mwanza police had allegedly detained men and women at a particular bar in the town, but soon after released all of the men keeping only the women in custody. The next day the women were taken to the local hospital and tested for HIV. Many were not informed that they were being taken for an HIV test. Those whose HIV results were positive were charged with spreading venereal diseases and had their HIV status read in open court. This action by the police and medical personnel in Mwanza is being challenged in the Malawi High Court.

Laws and practice discriminating against women and sexual minorities throughout southern Africa continue to severely impede an effective response to the HIV epidemic. Without additional local, regional and international pressure, it is unlikely that such practices and laws will change despite the expanse of the HIV epidemic in the region.

Thank you for your consideration of our submission.

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