Agenda 75 – The coerced sterilisation of HIV-positive women in Namibia

Abstract  Forced and coerced sterilisation is synonymous with a paternalistic desire to control women’s reproductive capacity. It is a practice that has always targeted the most marginalised people in society, including mentally ill or disabled persons, racial minorities, poor women, and people living with specific illnesses. Throughout the early 20^th century, countries passed laws authorising the coerced or forced sterilisation of those it deemed unfit to procreate. Today, such practices are universally condemned and generally outlawed as they violate people’s sexual and reproductive rights. But they are still happening – and among the targets are women living with HIV. This briefing focuses on efforts to bring an end to the illegal practice of coerced sterilisation of HIV positive women in Namibia. keywords coerced sterilisation; forced sterilisation; sexual reproductive rights; pregnancy; advocacy strategies Imagine the following… A young pregnant woman goes to the local public hospital to give birth. At the hospital, she is told by the medical personnel that she has to have a caesarean delivery to ensure her and the baby’s health. She is also informed that the hospital will not perform this necessary caesarean section unless she also agrees to be sterilised. She conveys to the medical personnel that she does not want to be sterilised as she would like to have the option of having additional children in the future. The doctor refuses to perform the caesarean unless she agrees. She feels she has no option and in order to maintain her and the baby’s health she agrees to be sterilised. This is one of the stories that we, at the Southern Africa Litigation Centre (SALC), the Legal Assistance Centre (LAC) and the International Community of Women Living with HIV/AIDS in Southern Africa (ICW-Southern Africa) have documented in Namibia, where some doctors in public hospitals are targeting women living with HIV for coercive sterilisation.[1] In total, we have documented 13 cases of coerced sterilisation in three public hospitals in the country.[2] The earliest case is from 2001, with the most recent occurring less than a year ago. The LAC has instituted legal proceedings on behalf of at least three HIV-positive women who were subjected to coerced sterilisation and plans to file more as further evidence is collected. The above example is just one form of coercion used by medical personnel in Namibia. In other instances, medical personnel would reportedly provide a pregnant woman with a consent form for sterilisation along with a number of other consent forms related to the pregnancy. No one would explain the content of the various forms. The woman would sign the forms and would only realise that she was sterilised when she was either told by the medical personnel or when she went to obtain contraceptives at a later date. In other cases, women would be given sterilisation forms to sign while she was being wheeled to the operation theatre and in one instance while in labour. It is unsurprising that, as in the rest of the world, women in southern Africa continue to have their sexual and reproductive rights assaulted in a variety of ways by doctors, health care workers and indeed the State. These range from severe restrictions on a woman’s control over whether to carry a child to term or terminate a pregnancy[3] to violently using women’s reproductive capacity as an instrument of war.[4] The HIV epidemic in the region and its disproportionate impact on women magnifies the already compromised position of women’s sexual and reproductive rights in the region and has emboldened perpetrators to use the stigma of HIV to further compromise women’s reproductive rights. But unlike other hotly contested violations of women’s sexual and reproductive rights, there is universal condemnation of the practice of forced and coerced sterilisation. So how is it then that we are uncovering coerced sterilisation practices in one of the most rights-respecting countries in the region? And even more troubling, why did it take so long for women’s, HIV, and human rights groups to uncover this illegal practice? Finally, now that these violations have been documented, what can and what should advocacy organisations do to provide redress to the victims and ensure that the practice is ended. This briefing attempts to answer these questions by contextualising the current practice of coerced sterilisation in Namibia within the broader history of the practice. It discusses the particular legal framework in Namibia and how the law can be leveraged to advance the interests of HIV-positive women. Building on the legal framework in Namibia, the briefing concludes with a discussion of the advocacy strategies that have been employed thus far in combating this practice and of their efficacy. How did we get here? Forced and coerced sterilisation is synonymous with a paternalistic desire to promulgate ‘appropriate’ progeny by controlling women’s reproductive capacity. It is a practice that has always targeted the most marginalised persons in society, including mentally ill or disabled persons, racial minorities, poor women, and people living with specific illnesses, such as epilepsy. Throughout the early 20^th century, countries passed laws authorising the coerced or forced sterilisation of those it deemed should not be permitted to procreate. In the United States, more than half of the 50 states passed laws permitting the sterilisation of mentally ill and disabled persons, criminals, persons with specific physical illnesses, such as epilepsy, Native Americans, and African-Americans.[5] Despite being a clear violation of fundamental rights enshrined in the US Constitution, the US Supreme Court upheld the practice in 1927. In Buck v Bell, Oliver Wendall Holmes held that a law providing for the forced sterilisation of individuals suffering from a mental disability or epilepsy did not violate the equal protection and due process clauses of the US Constitution.[6] In the decision, Judge Holmes stated: ’It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind.’[7] Holmes’ sentiment expressed in Buck was echoed throughout the early and mid 20^th century, when countries throughout the world enacted legislation permitting the coerced and forced sterilisation of those deemed unfit to procreate. Each country provided its own list of such persons, but they always targeted the most marginalised populations. In the 1930s, Germany enacted a law permitting the forced sterilisation of ‘undesirables’ including the Romas, an ethnic minority.[8] From the 1930s through the 1980s, Japan, Canada, Sweden, Australia, Norway, Finland, Estonia, Slovakia, Switzerland, and Iceland all enacted laws providing for the coerced or forced sterilisation of mentally disabled persons, racial minorities, alcoholics, and people with specific illnesses.[9] By the early 1990s, there was emerging acknowledgement of the appalling nature of forced and coerced sterilisation, and countries began repealing legislation authorising the practice. Unfortunately, general acceptance of the illegality of coerced and forced sterilisation has not meant an end to the practice. Instead, since the 1980s coerced and forced sterilisations have occurred in the dark, without any legal authorisation or clear policy. In the absence of publicly available legal authority or policy, it is in many ways more difficult for human rights advocates to challenge the practice. Firstly, the lack of a clear law or policy requires advocates to determine whether the practice is taking place and provide clear evidence of its nature. Secondly, without clear legal authorisation or policy, ensuring the end of the practice often requires a more nuanced and multi-pronged approach. Documenting the practice of coerced and forced sterilisation can be difficult, especially given that its primary targets are already marginalised persons. In the case of Namibia, this is doubly so as the targets of coerced sterilisation are women living with HIV. Women’s experiences are already less likely to be documented or analysed.[10] This is additionally so when the factor of HIV is added to the mix. Apart from the ICW-Southern Africa, most HIV organisations in the region are focused broadly on people living with HIV and not on the particular realities and experiences of women living with the virus. On the other hand, women’s rights organisations in the region focus on the realities of women’s lives, but do not necessarily look specifically at the experiences of women living with HIV. Furthermore, many organisations working with women living with HIV focus more on providing care and less on the rights of women living with HIV. This often means that safe spaces for women living with HIV to discuss and share their particular life experiences are few and far between. Without a dual focus on the experience and rights of women living with HIV, it is less likely that violations of women’s sexual and reproductive rights will be uncovered and documented. For example, two human rights groups, one with a specific focus on violations of women’s sexual and reproductive rights and the other focusing on the rights of Romas, documented the forced and coerced sterilisation of Roma women in Slovakia.[11] According to the report, of the 230 Roma women interviewed, approximately 140 of them were forcibly or coercively sterilised.[12] Without such systematic documentation by organisations focused on the sexual and reproductive rights of Roma women, the experiences of Roma women in Slovakia would not have been uncovered and documented. In the case of Namibia, a number of local human rights workers who have spent decades fighting on behalf of those whose rights have been violated were unaware that coerced sterilisations were occurring in the country. It was only after the ICW-Southern Africa held workshops specifically focusing on the experiences of young HIV-positive women that the pervasive practice of coerced sterilisation was uncovered.[13] One of the primary reasons for holding the workshop was to create a safe space where young women living with HIV could share their experiences, realities and obstacles they face in exercising their sexual and reproductive rights. Without such a, platform, it is unlikely that this issue would have come to light. Once the practice is uncovered and documented, the question for advocates becomes how best to end its occurrence. When legal authority or clear policy on coercive sterilisation exists, the first step to ending such practices is obvious: repeal any legislation or policy that gives medical personnel the authority to continue this violation of women’s fundamental rights. But when the official law prohibits forced and coercive sterilisation, it is not only difficult to uncover the continuation of such practices, but it then requires a multi-pronged solution, including among other things, training of medical personnel, informing women of their rights, and positive legislation, reinforcing the prohibition to ensure the practice is ended. Legal framework in Namibia Having a strong set of legally enshrined rights significantly boosts the potential success of advocacy on sexual and reproductive rights violations. In southern Africa, Namibia boasts one of the most progressive constitutions, providing strong protection against violations of fundamental human rights. In particular, under the Namibian Constitution, all natural and legal persons in Namibia have the right to life, human dignity, to be free from cruel, inhuman and degrading treatment, equality and freedom from discrimination, and to found a family. Clearly, sterilising HIV positive women against their will would violate these fundamental constitutional rights. The legal prohibition against coercive sterilisation is reinforced in Namibia’s obligations under relevant regional and international treaties. These include the International Covenant on Civil and Political Rights (ICCPR), the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the International Convention on Economic, Social and Cultural Rights (ICESCR), and the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment (CAT). The relevant regional treaties include the African Charter on Human and Peoples’ Rights (ACHPR) and the Protocol to the ACHPR on Rights of Women in Africa. These treaties provide for the right to be free from cruel, inhuman and degrading treatment, equal protection, freedom and security of the person, family planning, privacy, and be free from unlawful interference in the family, and health. In particular, the Human Rights Committee (HRC), tasked with monitoring compliance with the ICCPR, has criticised Slovakia for the forced sterilisation of Roma women, finding that it is contrary to the prohibition against cruel, inhuman and degrading treatment and the right to equal protection.[14] The Committee Against Torture, which similarly monitors country compliance with CAT, expressed its concern at reports of forced and coerced sterilisations occurring in the Czech Republic.[15] CEDAW, more particularly requires that women be provided ‘appropriate services in connection with pregnancy, confinement and the post-natal period, granting free services where necessary, as well as adequate nutrition during pregnancy and lactation’.[16] The CEDAW Committee has made clear that an appropriate service ensures ‘that a woman gives her fully informed consent, respects her dignity, guarantees her confidentiality and is sensitive to her needs and perspectives’.[17] In addition, article 16(e) of CEDAW requires that all women be granted ‘[t]he same rights to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights’. In recognition of the serious nature of forced and coerced sterilisation, the Rome Statute for the International Criminal Court defines systematic enforced sterilisation of a civilian population as a crime against humanity, one of the gravest crimes that can be committed under international criminal law.[18] While there is no particular legislation addressing the sterilisation of women in Namibia, as there is in South Africa, it is clear that the Constitution and Namibia’s obligations under international and regional law require that a woman’s informed consent be obtained prior to the sterilisation. This would require consent to be given freely and voluntarily without any inducement and the woman should be provided the following information:

1. a comprehensive description of the proposed plan of the procedure;
2. all of the consequences and risks of the procedure;
3. whether the sterilisation is reversible or irreversible;
4. alternative options for birth control and family planning.

In all of the cases we have documented informed consent was not obtained prior to the sterilisation procedure. None of the women were informed of the nature of the sterilisation procedure, whether it was reversible, or what the risks and effect of the procedure would be. Seeking redress: where to now? Given the strong rights protections under the Namibian Constitution and its obligations under regional and international law, there are a broad range of advocacy strategies that can be employed to end the practice of coercive sterilisation and to provide redress to its victims. These include but are not limited to litigation, legislative advocacy, governmental advocacy, and community mobilisation. Thus far in Namibia, we have focused on using litigation to compensate particular women who have been subjected to coerced sterilisation and asking the High Court in Namibia to declare the practice unconstitutional. Specifically, the LAC as the lawyers on the cases, have alleged violations of the women’s right to life, liberty, human dignity, to be free from cruel, inhuman and degrading treatment, equality and freedom from discrimination, and to found a family. Currently the cases are still in the litigation process and final decisions are not expected for some time. Litigation as an advocacy strategy in this situation has the benefit of raising the public profile of the issue, providing redress for some of its victims and, it is hoped, providing a deterrent to other medical personnel who may engage in the practice. What litigation is unable to do is to provide redress to all of the victims. Unfortunately, the law in Namibia provides that the harm must have been committed within the last three years to initiate a legal action. For women who underwent coercive sterilisation prior to September 2005, they can no longer bring a legal claim in court. In addition, there is no guarantee that a legal decision upholding the rights violation will act as a deterrent to all medical personnel and thus effectively end the practice. Finally, litigation can take years to conclude, leaving the women in limbo while a case is making its way through the courts. Given the limitations of litigation, we are using additional advocacy strategies. ICW-Southern Africa continues to hold workshops for young women living with HIV, providing safe spaces for women to speak about their experiences as well as to inform them of their rights as women living in Namibia. From these workshops, ICW-Southern Africa has uncovered additional cases of coerced sterilisations and in some cases has been able to prevent coerced sterilisations from taking place by informing women of their rights. In addition to litigation and community education and mobilisation, we are working with relevant governmental agencies to investigate all claims of forced and coerced sterilisation regardless of when they happened. Among the aims are to hold perpetrators accountable and ensure all medical personnel are trained on the rights of women in medical settings. Finally, we are assessing the possibility of a legislative advocacy strategy calling for the enactment of a legislative bill akin to the one in South Africa, clearly laying out the requirements for obtaining informed consent in all cases of sterilisation. Conclusion The International Guidelines on HIV/AIDS and Human Rights have made it clear that ending stigma and discrimination against people living with HIV is critical to stemming the progression of the epidemic.[19] This is additionally so with respect to women as the oppression of women continues to be a driver of the epidemic in southern Africa. Unfortunately, the practice of coercive sterilisation of HIV-positive women in Namibia has the opposite effect of further entrenching pre-existing stigma by removing the power of women living with HIV to exercise control over their bodies and their health. By targeting women living with HIV, medical personnel are sending a message that these women do not have the right to procreate due specifically to their HIV status. By failing to stop the practice and hold perpetrators to account, the government is reinforcing the stigma and discrimination against women living with HIV. The need to eliminate stigma and discrimination in the health care sector is particularly important in the context of HIV, where women repeatedly need to interact with medical personnel in managing the virus. A number of the women in Namibia indicated their heightened unwillingness to go to public hospitals due to this experience and have expressed their alienation from the public health care system.  Ending the practice of coerced sterilisation will not be enough to remove the stigma and discrimination HIV positive women have experienced. The Namibian government and the medical community must categorically reject the values underlying the practice of coerced sterilisation, hold perpetrators to account, and ensure that mechanisms are in place to avoid the continuation of the practice.  By doing that, the government will make clear that such a violation of women’s fundamental right to sexual and reproductive health will not be tolerated. Acknowledgment I would like to thank Promise Mthembu, Gcebile Ndlovu, and Jennifer Mallet from the ICW-Southern Africa, Linda Dumba, the Legal Assistance Centre, Vicci Tallis, Open Society Institute for Southern Africa, and Fleur Norton for their insights, comments and suggestions. The article is immeasurably better due to their contribution. Priti Patel heads the HIV/Aids Programme at the Southern Africa Litigation Centre where she is involved in a number of legal cases involving the rights of those infected and affected by HIV/AIDS in southern Africa. She has previously worked with the Lawyers Collective in India on discrimination against people living with HIV. E mail: PrintMail(‘pritip’,’salc.org.za’,”);pritip@salc.org.za [1] In this article, I use the term ‘coerced sterilisation‘ to refer to cases where coercion was involved in obtaining the legally required informed consent for the sterilisation. I use the term “forced sterilisation” to refer to cases where the women were unaware that they would be undergoing sterilisation at the time of the surgery and only learned that they were sterilised after the procedure had been performed. [2] The ICW-Southern Africa has gathered initial evidence of an additional 25 cases of coerced sterilisation of HIV positive women in Namibia. [3] Most countries in southern Africa region do not provide for abortion at will. They include Angola, Botswana, Democratic Republic of the Congo, Lesotho, Malawi, Mozambique, Namibia, Swaziland, Zambia, and Zimbabwe. [4] In Zimbabwe, AIDS Free World has documented cases of ZANU-PF youth militia members telling their rape victims that ’we are raping you so that you will give birth to ZANU-PF babies’. See Press Conference Statement by Betty Makoni, http://www.aids-freeworld.org/content/view/181/132/. [5] Tiesha Rashon Peal, The Continuing Sterilization of Undesirables in America, 6 Rutgers Race and L. Rev. 225 at 228-237. [6] 274 US 200. [7] Id. at 207. [8] Center for Reproductive Rights and Centre for Civil and Human Rights, Body and Soul: Forced sterilization and other assaults on Roma Reproductive Freedom in Slovakia (2003) at 41 [9] Linda Lewis Alexander, Judith H Larosa, Helaine Bader, Susan Garfield, New Dimensions in Women’s Health, (4^th edition) 128 [10] Most litigation on HIV issues has focused on access to treatment, discrimination against people living with HIV, and harm reduction and treatment in prisons. See Luisa Cabal and Pardiss Kebriaei, ‘Family Planning and AIDS Policy in the International Community’, 13 U.C. Davis J. Int’l L. & Pol’y 9 at 10 (2006). [11] Body and Soul, supra note 9. [12] Id at 55. [13] Wezi Tjaronda, Namibia: ‘Sterilisation Cases Headed for Court’, New Age, 7 April 2008, http://allafrica.com/stories/200804070421.html [14] Concluding Observations of the Human Rights Committee, para. 12(2003) [15] Conclusions and Recommendations of the Committee Against Torture, Czech Republic (3 June 2004), para. 6(n) [16] Convention on the Elimination of Discrimination Against Women (CEDAW), G.A. Res. 34/180, U.N. GAOR 34^th Sess., Supp. No. 46, at 193, (entered into force Sept. 3, 1981 ratified by Namibia in 1992), art. 12(2) [17] General Comment 24, para 22. http://www.un.org/womenwatch/daw/cedaw/recommendations/recomm.htm#recom24 [18] Article 7. [19] See Guideline 9.