Malawi: Some laws fuelling HIV/AIDS infections

AfricaNews
8th October 2012

Malawi has to repeal some of laws, policies and practices that are infringing Sexual Reproductive Health Rights (SRHRs) of citizens including some groups that are vulnerable to HIV and AIDS infections. Yes! If there is one of Malawi's successful stories in HIV and AIDS fight then is the reduction of the number of People Living With HIV and AIDS (PLWHA) in the over 13 million plus population due to some strategies in the fight against the pandemic in place.

The former Nutrition, HIV and AIDS Principal Secretary (PS) now PS for Ministry of Gender, Mary Shawa, attributed successes attained in HIV and AIDS fight in Malawi to donor support including from the Global Fund.

She disclosed that Malawi has achieved a lot of progress in HIV and AIDS fight, stabilizing the prevalence rate to about 12 per 100 in the 13 million plus population from the previous 14 percent.

“In fact even the number of people dying from HIV and AIDS related illnesses in Malawi now stands at 5 percent, down from 11 percent in 2004. The decrease is due to increases in the number of People Living With HIV and AIDS now on anti- retro viral treatment and over 80 percent of patients on ARV treatment are still alive,” said Shawa.

However, there are some laws, policies and practices in Malawi that are infringing sexual rights as well as threatening to offset the country’s gains in HIV and AIDS fight.

This is highlighted in the research findings by Journalists Association Against AIDS (JournAIDS) in Malawi with support from the Southern Africa AIDS Trust (SAT).

The stakeholder study analysis was extensively conducted targeting various Civil Society Organizations (CSOs) in Blantyre, Lilongwe, Mzuzu and Nkhata Bay.

“The research revealed that in Malawi there are some national laws, policies and practices negatively having an impact on Sexual Reproductive Health Rights (SRHRs) of people especially some groups that are vulnerable to HIV and AIDS,” said JournAIDS Programme Manager Dingaani Mithi.

The study among other things, noted that Malawi’s Republican Constitution for example was not clear on the age of marriage as a girl below the age of 16 could get married with parental consent, while at this age a girl is very young and not yet ready for sex which exposes girls to gender based violence, cervical cancer, Sexually Transmitted Infections (STIs) including HIV and AIDS risks as well as maternal deaths.

“Stakeholders were of the view that there is still room for constitutional review to ensure that the marriage age is adjusted upwards to 21 years to enable women get educated adequately,” said Mithi.

Further, the anti-abortion law that is contained in the provisions of the Malawi Penal Code have still not yet been reviewed and continue to expose women to access unsafe abortion means which in turn cause maternal deaths and other conditions such as obsteric fistula.

“Abortion is illegal in Malawi, hence the absence of a law that legalizes abortion often drives women to seek other dangerous and unsafe methods that put the lives of women at risk and fail to access family planning and other Sexual Reproductive Health services in a manner that conforms to human standards,” explained Mithi.

Malawi recently also drafted a proposed HIV bill based on a 2008 report of the Special Law Commission.

However, one of the stakeholders, MANERELA observed in the same JournAIDS research that this law needs to be urgently reviewed so that all provisions that promote stigma and discrimination are entirely repealed.

“This law if not repealed would derail progress recorded in HIV prevention and Sexual Reproductive Health Rights as it does not conform to international human rights standards at the present time,” said Mithi.

The discrimination provisions in the proposed Malawi HIV legislation could also derail access to SRHRs and HIV services amongst the most-at-risk groups such as sex workers.

On his part, one of Malawi’s legal experts working with a Lilongwe based human rights organization said the criminalization of sex work in Malawi brings alot of questions on whether women’s rights are being infringed upon, for instance the Malawi Police Service arrests sex workers found prying their trade in night clubs and bottle stores including even in rest houses.

“Despite the fact that Malawi has not outlawed sex work and it is not reflected anywhere, police officers on night patrols pounce on sex workers and when the issue goes to the courts they are charged with rogue and vagabond,” he said adding, “This is a clear violation of rights of sex workers who are being victimized without any legal basis.”

The lawyer further said another shocking example, is that some 10 commercial sex workers were some months ago arrested in Malawi’s Mwanza District sharing boundary with Mozambique in the southern region of the country were forced to undergo a compulsory HIV test against their will under the order of the police.

“The compulsory testing of the sex workers is not recommended by the United Nations Joint Programme on HIV and AIDS (UNAIDS),” he said.

The law expert added that as well as being contrary to human rights it is impractical and unworkable and more effective results can be reached by supporting sex workers and their partners to access HIV testing, prevention, and support.

A Christian Aid Report backs the legal expert by disclosing that according to consultations that were conducted in Malawi with sex workers, compulsory testing will not deter sex work.

“It could drive sex work underground, lead to the denial of sex work to avoid testing and encourage secrecy once testing positive to avoid criminilization,” reads the report in part.

On the other hand, one of Malawi’s experts in HIV and AIDS research, Muza Gondwe writes that one reason why the spread of HIV and AIDS has been put under control in rich-developed countries is because they have accepted minority also vulnerable groups in their societies.

“In developed countries when HIV was first found in gay men, gay activists groups were quick to lobby governments for access and care and improved prevention programmes,” she said.

Gondwe however, added:“ In developing countries, because of social, cultural and political reasons, the response has been slow although now in Malawi, organizations such as Center for the Development of the People (Cedep) and political goodwill, provision of services to MSM [Men having Sex with Men] is set to improve.”

She further explained that behavioral interventions aimed at MSM are effective since they have been found to reduce the number of men having unprotected anal sex by up to 43 per cent and increase condom use by 81 per cent.
“Another important tool in prevention is access to condoms and lubricants,” said Gondwe.

She disclosed that a study was conducted by the Johns Hopkins School of Public Health, College of Medicine and Cedep which had revealed that of 537 MSM in Malawi, Namibia and Botswana found HIV prevalence was at 17.4 percent.

“At least 16.6 percent had both concurrent relationships with men and women. Over 40 per cent reported experiencing human rights abuses including blackmail and denial of housing and health care,” said Gondwe.

She further revealed that in Malawi 30 percent fear discussing their status because of concerns of stigma and discrimination desite feeling comfortable with their sexual oriantation.

“They also found that only 9 percent of the men in the study had disclosed to a health care worker and less than 60 percent of the men had ever Voluntary Conselling and Testing,” said Gondwe.

She also explained that the researchers reported the link between MSM having been blackmailed and not taking an HIV test in the previous 6 months, which suggests that stigma was preventing men from going for HIV tests.

“Other studies have also pointed to inadeaquate training for health care workers in Africa to deal with psychological and physical needs of MSM seeking health care. During the AIDS 2012 Conference, there were pledges of support to programmes targeted at MSM,” said Gondwe adding, “By continuing to deny MSM equality as members of society because of cultural, religious or political reasons, we seriously harm any progress in managing the HIV and AIDS epidemic.”

She even said that the United Nations (UN) Programme on HIV and AIDS (UNAIDS) and other International Organizations have found that criminalizing same-sex acts in fact lead to greater HIV prevalence.

“A study found that countries that criminalize MSM have higher HIV prevalence than countries that do not,” said Gondwe.

She therefore, said the launch of a book ‘Queer Malawi: Untold stories by Cedep, a collection of stories of gay and lesbians in Malawi, will hopefully contribute to fair acknowledgement and support for the gay commnity in Malawi.

“Stigma and cultural intolerance are the main stumbling blocks preventing men who have sex with men accessing testing, prevention, treatment and care services,” said Gondwe.

After taking the reigns of power following president Bingu wa Mutharika’s death in April this year, President Joyce Banda’s administration breathed some hope in minority groups by promising that it would repeal the laws that were infringing rights of minorities including Men having sex with men (MSM) and lesbians or Women having sex with Women (WSM).

However, recently Banda made announced that her government will not revisit the said laws a matter that has shocked CSOs who have been fighting for such rights.

“It’s very unfortunate that Malawi Government has changed its tune on this matter and minority rights in particular, minority rights are part and parcel of democracy,” said Undule Mwakasungula a prominent Malawian humanrights campaigner, Executive Director for the Centre for Human Rights and Rehabilitation (CHRR) and National Coordinator for the Human Rights Consultative Committee (HRCC) a grouping of over 100 Malawian Non-Governmental-Organizations (NGOs).

Meanwhile, an UNGASS Consultative Process, 2009-2010 cross survey that used a snowballing approach with a sample of 200 Men who have Sex with Men (MSM) discovered that the prevalence of HIV in Malawi was 21.4 percent which is much higher than the national prevalence of approximately 12 percent.

“A survey of a bigger scale needs to be commissioned to better appreciate the size and particular needs of this Most at Risk Population in Malawi. A wide range of participants from Government and Civil Society voiced during the UNGASS Consultative process that as long as there is criminization of Men who have Sex with Men and fear of arrests, it will be very difficult for this group to be reached with effective prevention, treatment, care, and support,” reads the report in part.