It was, Malawian police say, a routine sweep for criminals at one of the country’s busiest border posts. They were looking for criminals.
But when the police arrested 14 prostitutes as part of their search, and then allegedly forcefully tested them for HIV and charged them for “deliberately trading in sex while having a sexually transmitted disease”, human rights organisations had to step in.
The forceful HIV testing of the women was a violation of the women’s rights, human rights organisations say. But Malawian police have claimed that it was nothing more than just a routine part of their of job.
But human rights organisations in Malawi want the police to answer a few vital questions about the circumstances surrounding the women’s HIV tests.
Early this month, in a routine sweep for criminals, police in the southern region of Malawi combed the town of Mwanza, one of the two busiest border posts through which Malawi receives and sends large volumes of cargo.
In the exercise in which 91 offenders were netted, the law enforcers also arrested 14 sex workers. The police say the women were found loitering around the town.
“They (arresting officers) said they were looking for men,” police spokesperson Dave Chingwalu told IPS.
The sex workers were charged and fined 8 dollars each. According to Chingwalu, they were not charged for loitering but for deliberately trading in sex while having sexually transmitted disease. Police charged them with the crime after testing them for HIV, and finding their results positive.
“We released them and they should be back on the streets now,” said the police spokesperson.
Laws in Malawi provides for an offence in rogue and vagabond. The Penal Code also prohibits living on earnings of prostitution by both men and women. It also prohibits the keeping of brothels for the purpose of prostitution. There is no law that specifically criminalises sex work.
However, the police have been using these pieces of legislation to reign in on sex work in the major cities of the country.
In this incident, it was the testing of the women for HIV that has outraged some human rights organisations in Malawi. All the 14 women were found HIV positive and a story to that effect was published in the local media. No names of the women were published.
A Mwanza hospital official was quoted as having confirmed that he conducted the tests on the women and that all of them were found HIV positive.
Asked whether the women had consented to getting tested, Chingwalu said the police took for them for the examination after discussing it with them.
But human rights organisations involved in the matter say police forced the women to undergo an HIV test without their consent. This, rights organisations say can be challenged in court because it was unconstitutional.
They argued that the Malawi Constitution does not permit that any person be subjected to medical or scientific experimentation without their consent.
“In the matter under consideration, consent was not sought from the 14 women. On that basis alone, the HIV testing is inconsistent with the Constitution and therefore invalid,” said the Centre for Development of People (Cedep), an organisation that works to empower minority groups in Malawi.
But the police are adamant they have done nothing wrong.
“It was part of our investigations,” said Chingwalu. “We do that in various other cases such as defilement. When somebody has defiled another person, we have to take the defiler for a test on HIV or any other sexually transmitted disease for us to be able to establish the extent of our case.”
He said the police had acted legally according to the Penal Code. Section 192 of the code reads: “Any person who unlawfully or negligently does any act which is and which he knows or has reason to believe to be likely to spread the infection of any disease dangerous to life shall be guilty of a misdemeanour.”
IPS could not trace the affected sex workers but another woman who went through the experience a week earlier in Malawi’s former capital city of Zomba said that in that raid, the police forced them to undergo an HIV test.
Speaking on condition of anonymity, the woman said when they were rounded up, the police took away their cellular phones and money.
“Sometimes, when they catch you in these raids, they force you into sex and once you provide that, you get released. Otherwise, they keep you in custody and take you to court,” she claimed.
But this last time things were different. She claims she made to undergo an HIV test against her will.
“It’s not that we agreed to go for a test. They did not ask us whether we wanted to go for the test or not. The way I understand it, this HIV testing voluntary in Malawi but they force us into it because that is the only way they can justify their illegal actions on us,” said the sex worker who is HIV positive. She discovered her status in 2005 but she still continues working.
Undule Mwakasungula of the Centre for Human Rights and Rehabilitation (CHRR) said the police action in this case was discriminatory and it underlined the thinking that women are the ones responsible for spreading HIV/Aids.
“If it’s a way of dealing with HIV/Aids, then they should find another way. HIV testing is based on consent. If you force the sex workers into the test, it is unlikely that there is any counselling that is done on them. In that way, they can’t realise the importance of getting tested. I find the action by the police discriminatory and uncalled for,” he said.
Gift Trapence of Cedep equally condemned the action by the police saying it is a violation of the sex workers’ right to privacy and equality and a mental torture to them.
“This is stigma and we are against it,” said Trapence.
Asked how they have wanted the police to handle the women during the raid, the organisations said prosecuting then under the rogue and vagabond offence would have been more acceptable.
The CHRR added Malawi needed to revise some of its laws that were impinging on individual human rights.
Dr Mary Shawa, Secretary for HIV/Aids and Nutrition in the Office of the President and Cabinet, said while Malawi had to employ every available and legitimate way to contain HIV/Aids, testing the sex workers alone, and not their clients as well, was not justice enough.
She said the HIV infections rates among sex workers in Malawi were high, ranging between 70 and 80 percent. This, she said, was one of the findings of a study that her department conducted in all the 28 districts in Malawi.
“As you can see the infection rate, the image of sex work is not good. It may also mean that this is the rate of infection among the purchasers of sex as well,” she said.
Shawa also pointed out that while the prostitutes had rights, their clients also had rights – the right to life.
“We all know the importance of human rights. But when we are demanding our rights, we also have to keep in mind our responsibilities. It is the sex workers’ right to make money but if we are all careful, we will not make that money at the expense of another person’s right to life,” Shawa said.
She added that it was high time sex workers in Malawi were organised so that they are empowered to be part of the solution to HIV/Aids in Malawi instead of being part of the problem.
In 2007, a special law commission proposed mandatory HIV testing for sex workers in Malawi as one measure in the campaign against HIV/Aids that is causing an estimated 100,000 deaths annually in Malawi, according to official records.
But human rights organisations such as Cedep went up in arms against the proposed law. They argued that apart from being discriminatory, the law would not yield intended objectives because there are various pieces of legislations that are conflicting on the definition of sex work.
These opposing laws are sorely in need of clarity if anything can be done about the spread of HIV/Aids by sex workers in Malawi.
“The authorities tell us that sex work is illegal. The penal code does not say anything about sex work. So what do they mean when they say that sex workers must go for mandatory testing? Are they saying that they are accepting sex work now?” wondered Trapence.–IPS