WLA & WOJAM @ #AIDS2018!

Members from WLA and WOJAM are participating in the 22nd International AIDS Conference #AIDS2018 being held in Amsterdam, the Netherlands from 23-27 July 2018.  See some highlights of our participation below:

22 July Global Dialogue: HIV, Rights and Law in the Era of the 2030 Agenda for Sustainable Development

Hall 11a, RAI Amsterdam

 

10:00 – 11:45, Hon. Justice Zione Ntaba (WOJAM)

New and emerging issues in HIV-related science and the lessons for HIV and the law

23 July Satellite Session on “Results and Successes of the GF Africa Regional HIV Grant-Removing Legal Barriers” 12:30-2:30pm

E105-108, RAI Amsterdam

 

12:30 – 2:30, Hon. Justice Zione Ntaba (WOJAM)

Linking the Africa Regional Judges Forum experience to redress of human rights violations of Key Populations

Beyond Blame: Challenging HIV Criminalisation

HIV Justice Network

De Balie Kleine Gartmanplantsoen 10, 1017 Amsterdam

Tweet any comments or questions using the hashtag #BeyondBlame2018

12:10 – 1:00, Sarai Chisala-Tempelhoff (WLA)

‘Women and HIV criminalisation: Feminist perspectives’

Session will be live streamed to HIV JUSTICE WORLDWIDE’s YouTube channel: www.tiny.cc/hivjustice

 

2:00 – 3:30, Sarai Chisala-Tempelhoff (WLA)

Breakout Session, Workshop on Legal Strategies

 

24 July Poster Exhibitions

TUPED555

Poster Exhibition area, Hall 1

RAI Amsterdam

 

12:30-14:30, Annabel Raw, SALC

My body my right! The power of women’s advocacy in defeating HIV criminalisation in Malawi’s HIV Bill

 

25 July Press Conference: JIAS expert consensus statement on HIV Criminalization

Press Conference Room 2, Room G109, RAI Amsterdam

 

2:30 – 3:15, Sarai Chisala-Tempelhoff (WLA)

Expert Consensus Statement on HIV in the Context of Criminal Law

http://www.aids2018.org/Media-Centre/Resources/Press-programme

IAS Facebook Live: AIDS2018Live!

Booth #108 (Exhibition) RAI Amsterdam

 

16:00 – 16:30, Sarai Chisala-Tempelhoff (WLA)

#HIVIsNotACrime: Reaching consensus to drive action

The live-streaming of those sessions as well as the archived recordings will be available online: www.aids2018.org/Live

26 July AIDS-Free World’s Legal Consultation Center

Global Village, Booth 648

 

9:00 – 11:00, Sarai Chisala-Tempelhoff (WLA)

Health Rights Lawyer Consultation https://aidsfreeworld.org/legal-consultation-center/

 

WLA & WOJAM participation in #AIDS2018 was supported by HIV Justice Network & UNDP

@WLAMalawi is hiring!

Recruiting Legal Administrative Assistant/ Legal Intern

Job Title:

Legal Administrative Assistant/ Legal Intern

Overview:

Within the context of its objectives of providing legal assistance and legal empowerment to women and children survivors of GBV; to support the documentation of women’s human rights violations, and to facilitate advocacy for accountability and redress to survivors, the Women Lawyers Association of Malawi seeks to recruit a Legal Intern / Paralegal/Legal Administrative Assistant who will be based at the Women Lawyers Association Secretariat to provide support to the Secretariat.

Reports To:

WLA President / National Executive Committee

Job Location:

WLA Secretariat in Lilongwe, Area 47/3

Job Purpose:

To manage and oversee day to day running of the WLA secretariat. Specifically the intern/administrative assistant will:

  • Assist in the reception and registration of complainants at the Secretariat (including through electronic and telephonic means);
  • Assist in collecting affidavits and other information from complainants seeking to register with the Secretariat, and ensure proper filing of all documents collected;
  • Develop and maintain an electronic database of complainants’ stories/experiences;
  • Assist with organizing sensitization and advocacy activities of the Secretariat;
  • Perform other cognate duties assigned by supervisors.

Required Qualifications & Capabilities:

The ideal candidates should meet the following criteria:

  • MSCE or its equivalent;
  • Be based in Lilongwe;
  • Have basic computer skills, notably Microsoft Office pack; social media skills will be an added advantage;
  • Have good proficiency in English;
  • Time management and multitasking skills:-ability to prioritize and track time;
  • Ability to exercise high sense of professionalism and ethics in dealing with victims of human rights violations;
  • Willingness to learn and work in a team;
  • Ability to work independently as well as in a team;
  • Client Confidentiality.

The following qualifications will be of an added advantage:

  • A diploma or training in law will be an added advantage;
  • Being conversant with the Malawian legal system, as well as international law;
  • Have experience interviewing complainants and collecting information on their cases;
  • Having good legal research and writing skills will be an added advantage;
  • Knowledge of one or more of the local languages spoken in Malawi is desirable;
  • Experience developing and/or managing electronic databases will be an added advantage;
  • Valid driving licence for light passenger vehicles;
  • Strong social media skills are especially desirable.

Responsibilities:

Include but are not limited to:

  • General administration and management of the WLA secretariat;
  • General administration and management of the WLA social media platforms;
  • Providing secretarial and administrative support to the Secretariat;
  • Servicing the National and Chapter Executive Committees and the membership of the Association;
  • Conducting some light bookkeeping, including issuing of invoices and receipts for the WLA subscription fees;
  • Attending to stakeholder enquiries and communication;
    Complaint handling and management
  • Record keeping;
  • Various other duties as assigned from time to time

Duration:

The internship/fellowship is a period of 12 months, to begin as soon as possible.

Remuneration:

The successful candidate will be receive a modest monthly stipend of MWK50,000 per month. Training in women’s and children’s rights, specialized training in social media management and an opportunity to engage in hands on legal empowerment initiatives.

Submission of Application:

To apply, please submit your motivation letter, curriculum vitae and copies of relevant academic records by Friday, 9 February 2018 to info@womenlawyersmalawi.com with the subject matter “Recruitment Legal Intern”
WLA is an equal opportunity employer; women and men are equally encouraged to apply. Persons with disabilities are particularly encouraged to apply.

GIZ visit to new WLA Offices in Lilongwe

During the 16 Days of Activism against GBV in 2017, the Women Lawyers Association of Malawi (WLA) was honored to be the recipient of a donation of office furniture, stationery and a passenger vehicle from the Malawi Offices of the Deutsche Gesellschaft für Internationale Zusammenarbeit GmbH (GIZ). This donation was both timely and critical and has enabled WLA to open the doors of a small secretariat in Lilongwe – a space that can be used to better meet our objectives of providing legal assistance to women and children. The secretariat also serves as a meeting space, and eventually a resource centre, for the members of WLA.

The GIZ Malawi Country Director, Dr Dagmar Lumm (pictured below with a colleague from GIZ and members of WLA) visited the WLA offices to learn more about the Association and the critical work that we do. The visit was enlightening for all – the members explained about the challenges faced by WLA and the efforts that have been made to ensure that we are able to provide essential legal services to women and children, especially survivors of gender based violence: WLA has set up a special fund to cover the legal fees for GBV survivors; we host legal clinics both online using our Facebook page and in person; WLA works as a watchdog of legislation and policy that has implications on the rights of women and children; and, we also issue public statements on topical issues that affect women and children of Malawi. Dagmar and Margret shared their experiences of the similar struggles faced by women and children in Germany and the measures that have helped to lessen the incidences of violence but also enhance the overall response to GBV.

This conversation and donation is relevant to the work of WLA in Malawi, but we all recognized that the conversation about violence faced by women and children is a global one. The WLA fund for GBV survivors can also be considered a local effort to show that even in Malawi #TimesUp for sexual harassment and other forms of GBV.

The images of the visit were captured by Maria Thundu of MARS Photography.

This visit also served as the soft launch of the WLA Secretariat. The Secretariat has been undergoing extensive renovation and is only open a few days of the week as we finalize the renovation and recruit an officer to receive complainants and manage the administrative work of the Association. The Secretariat will be used for future legal clinics, training workshops and other WLA events.

Follow our social media accounts to keep abreast of upcoming events and to find out the details of our open days when one of the WLA members will be working at the Secretariat to receive and handle complaints.

The Women Lawyers Association of Malawi once again expresses its deep and sincere gratitude to the GIZ for their generous donation, this contribution to our work has enhanced our capacity to better serve the women and children of Malawi.

Zikomo kwambiri

 

Sarai Chisala-Tempelhoff

 

#GBVTeachin #16Days #EVAWGinMw

by WLA Member Ndamo Somba

“GBV is not just about sexual violence or a man beating his wife”

Gender Based Violence (GBV) is the violence committed against women, girls, boys and men within a community which is perpetuated by toxic social and cultural norms that society places on gender roles and which is further exasperated by the unequal power relationships between the two genders. It functions as a mechanism for enforcing and sustaining gender inequality, therefore, women and girls face significant gender discrimination and are accorded a lower socio-economic status than men and boys because of it. As a result, women and girls are disproportionately affected by GBV than men and boys. Most women and girls who are subjected to violence internalise the view that they are worthless and that they do not have control over neither their own lives nor bodies. This, in turn, has direct consequences with respect to their health, employment and participation in social and political life.

GBV against women and girls is, therefore, a public health issue and a violation of their human rights. It violates their rights to, among others, life; not to be subjected to torture or to cruel, inhumane or degrading treatment or punishment; equal protection under the law; equality in the family; and the highest standard attainable of physical and mental health.

GBV against women and girls can take the form of physical, sexual, psychological or economic violence. It also includes threats of acts of said violence, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life. Specifically, psychological violence includes ‘threats, humiliation, mocking and controlling behaviours while economic violence involves denying the victim access to financial resources, property, healthcare, education, or the labour market, and denying victims participation in economic decision-making.

The forms of GBV against women and girls include violence in close relationships; sexual violence (including rape, sexual assault and harassment in all public and private spheres of life); trafficking in human beings, slavery, and sexual exploitation; harmful practices such as child and forced marriages, female genital mutilation, and crimes committed in the name of so-called ‘honour’; and online harassment, various forms of sexual abuse instigated or facilitated through the use of information and communication technologies, stalking, and bullying.

“Harmful Cultural or Traditional Practices”

Harmful cultural or traditional practices are forms of violence which have been primarily committed against women and girls in certain communities and societies for so long that they are defended on the basis of tradition, culture, religion or superstitions held by community members. These practices are a violation of the human rights of women and girls because they are often carried out without the consent of the women or girls involved.

In Malawi, the following constitute common forms of these harmful practices:

(a)        Forced or early marriages – these are marriages in which one or both spouses do not give valid consent to the marriage. Forced marriages involve varying degrees of force, coercion or deception and emotional pressure by family members or community members in the form of continuously reminding the victim that the family’s social standing and reputation are at stake, isolating the victim or refusing to speak to the victim. As a result, girls or women who are forced into marriage do not give valid consent.

This harmful cultural or traditional practice is perpetuated by several factors such as endemic poverty whereby families force young girls into marriage at an early age with the view that her “spouse” or his family will fend for the girl and, in certain instances, extend financial or other assistance to her parents; or cultural practices such as Kupimbira or kuhaha whereby a person exchanges his or her young daughter for basic goods and necessities as a means of survival. The girl so exchanged is forced into slavery to pay off the debt; however, sometimes the girl is forced into marriage as a means of repaying the debt; or kutomera (‘betrothed’) whereby girls are exchanged for money from a very young age, virtually from the day they are born. According to the custom, families receive payment for their daughters in a manner similar to the payment of lobola for a bride. An older or wealthy man within a community approaches a family and identifies a very young girl to be his future wife. A price is negotiated and the girl is taken from the family when she is sexually mature.

(b)        Maltreatment of widows – this mainly entails different forms of discrimination against widows such as violations of their inheritance rights under customary law, widow cleansing or forced marriage. The combined effects of these practices leave many widows vulnerable to trafficking, sexual assault and other forms of domestic violence. For example, the practice of ‘wife inheritance’ occurs in some parts of Malawi whereby widows are expected to marry or enter into a sexual relationship with the brother or kinship of her deceased husband. Refusal by a widow to be ‘inherited’ typically leads her to being disinherited, ostracized and expelled from her home. Nonetheless, widows are frequently evicted from their houses or the marital property is ceased by her in-laws upon her husband’s death because traditional or customary property laws are often unfair to women and usually leave them and their children in situations of great dependency.

(c)        Killing of suspected witches- the belief in witchcraft remains strong in Malaŵi as it does in other African countries. In communities where such beliefs are held, witchcraft is attributed to unexplained illness and deaths. Research has shown that women, particularly elderly women, are disproportionately suspected of practicing witchcraft and are usually ostracized or even murdered as a result.

(d)        Female genital mutilation which entails the procedures that intentionally alter or injure female genital organs for non-medical reasons.

“Trafficking in Persons”

Trafficking in persons is the recruitment, transportation, transfer, harbouring, or receipt of persons, by means of threat or use of force or other forms of coercion, abduction, fraud, deception, abuse of power or a position of vulnerability or of giving or receiving of payments or benefits to achieve the consent of a person having control over another person for the purpose of exploitation.

Malawi is the source for three streams of trafficking in persons for commercial sexual exploitation. These streams entail:

  • trafficking victims to Europe;
  • trafficking child victims to Europe by sex tourists; and
  • trafficking victims across land borders to South Africa.

The vulnerability of women and children in Malawi to trafficking is due, at least in part, to endemic poverty, unemployment, famine, HIV/AIDS and the perpetuation of certain harmful cultural or traditional practices that commercialise and sexualise girls such as the initiation rites known as chinamwali.

 Nsondo and Ndakula

Nsondo and Ndakula are two forms of chinamwali. Nsondo is aimed at prepubescent girls and ndakula (‘I have grown up’) is aimed at menstruating teenage girls. They both aim to introduce girls to the responsibilities of adulthood; however, ndakula specifically focuses on, through secret rites, instructing girls on a variety of sexual skills, to suppress their own feelings and sexual desires in order to please men. They are also encouraged to find sexual partners with whom to ‘practice’ their sexual technique, and to marry quickly – usually from 15 years of age onwards. An older man, called a fisi (hyena), is often employed to break the girls’ virginity and to teach them about sex in preparation for marriage. Further compounded with other harmful cultural or traditional practices such as Kupimbira, kuhaha and kutomera, girls are commodified from a young age because they legitimise the selling of young girls to seemingly successful strangers who often make surprise offers to educate and employ them to ease the burden of their families thereby exposing them to traffickers. In the overwhelming socio-economic circumstances pertaining in rural Malawi, young girls are often the last remaining “possessions” of value that families can sell to buy food and other basic necessities.

 In the areas along the lakeshore, rural unemployment and high HIV/AIDS infection forces many children to drop out of school to become breadwinners. Some of these children have been forced to migrate to towns, border regions and holiday resorts to support their families through informal jobs and often sex work. Others are recruited as cheap labour to be exploited in bars and restaurants in the two main cities, Lilongwe and Blantyre, and towns such as Kasungu, Mwanza, Mangochi and Salima. For many trafficking victims, the process of early sexualisation seems to play a vital role in normalising prostitution among young women and girls which, in turn, brings them into contact with traffickers who often travel to Malawi specifically for recruitment purposes.

Early sexualisation deprives young women of schooling and job opportunities because of the high prevalence of unwanted pregnancies; or confinement to households as cooks and cleaners. This makes offers such as study and well-paying work in Europe or South Africa, which are commonly made by traffickers during recruitment, irresistible to many young women. Additionally, sexual rites encourage early marriages such that offers of marriage from traffickers are favourably received both by young women and their families. These offers of marriage are often accompanied by generous gifts of money, a practice that resembles and is legitimised by harmful customs such as kutomera. Further, early sexualisation further perpetuates the culture of domestic violence and sexual violence among young women and girls in Malawi.

“Violence Against Women with Albinism”

In recent years, there have been several cases of killings, attempted abductions and disappearances of persons with albinism in Malawi. These acts against persons with albinism violate their rights to life; liberty; security; and the prohibition of torture and ill-treatment as has been enshrined in various international human rights treaties to which Malawi is a party. The majority of the violence against people with albinism is committed against women and girls who, in addition to being particularly vulnerable members of society, face multiple and intersectional forms of discrimination.

The attacks against people with albinism are often driven by erroneous beliefs and myths that are influenced by superstition such as the belief that their organs have magical powers that can increase ones prosperity or that sexual intercourse with a woman or girl with albinism can cure HIV/AIDS. Additionally, there is a strong problematic belief in some communities across Malawi that persons with albinism are “like phantoms who do not die but disappear instead”; this belief reinforces members of their community to view them as being less human which, in turn, normalizes the discrimination and violence perpetrated against persons with albinism. These attacks entail, among others, ritual attacks which have sometimes resulted in death of the victim; trade in organs, trafficking and sale of persons with albinism, particularly children; infanticide and abandonment of children; and the decapitation or amputation of limbs to be sold in black markets.

Women and girls with albinism already constitute a minority who are often the most discriminated against and marginalized in society, therefore, their suffering is often overlooked by most members of their community. This, in turn, perpetuates their suffering of gender based sexual violence such as ritualized defilement and rape which, in turn, often leads to victims contracting HIV. Further, the victimization caused by the sexual violence is further compounded by the lack of realization of women’s in rights in largely patriarchal traditional communities; stigma associated with albinism and poverty, thus, there is little, if any, communal support for these victims.

Acts of violence committed against persons with albinism have been strongly condemned by President Peter Mutharika who has called on security agencies to arrest people responsible for such attacks and provide maximum protection to persons with albinism. As a result, there has been an increase in the number of people have been arrested and prosecuted by the relevant security authorities for committing such abhorrent crimes and acts. Increased public awareness and systematically addressing these attacks against women and girls with albinism as well as all other forms of discrimination and marginalization are therefore crucial to ending violence against women.

“Violence Against School Girls”

Every child has a fundamental right to education and to gain its benefits. Through access to education, children can develop essential life skills that will enable them to live with dignity as engaged Malawian and global citizens. In Malawi, an education can transform a child’s life and help entire communities to break out of the cycle of poverty.

Education is also fundamental to achieving gender equality. This view was emphasized by the former UN Secretary General Kofi Annan who stated that “there is no tool for development more effective than the education of girls” yet while more than one billion children across the world attend school every day, more than 66 million girls do not have access to education. For those who have access to education, it is estimated that at least 246 million boys and girls annually suffer school-related violence. The girl-child’s right to education can therefore be fulfilled only when girls are able to learn in nurturing environments free from school related gender based violence (SRGBV).

SRGBV is defined as “acts of sexual, physical or psychological violence inflicted on children in and around schools that are due to stereotypes and roles or norms attributed to or expected of them on the basis of their sex or gendered identity.”  School curriculums, physical spaces, classroom management, teacher conduct and schoolyard dynamics often entrench gender norms through messages about what girls and boys can and should do. Research conducted in Sub-Saharan Africa found that GBV against both female and male schoolchildren is common. In several countries, sexual violence against schoolgirls appears to be an institutional norm. Patriarchal values and attitudes that encourage male aggression, female passivity, and harmful traditional practices such as child marriage were also found to be drivers of SRGBV across Sub-Saharan Africa.

The most prevalent forms of SRGBV against the girl-child are sexual violence; bullying; cyber-bullying; physical and psychological bullying.

(a)        Sexual violence

Sexual violence against school girls can take the form of, among others, “harassment, rape, abuse, coercion, and exploitation”. Most cases of sexual violence are perpetrated by people whom the abused child knows such as teachers, peers and other members of the community. For example, some teachers exploit their authority and power over female school children by engaging in ‘sex for grades’ or waiving the payment school fees. Nonetheless, teachers can still constitute key allies in preventing SRGBV against the girl-child.

Conflict such as civil war weakens institutions, accountability structures and social networks pertaining to the school or education system which consequently put girls at greater risk of being sexually violated. In particular, research has shown that teenage girls may be exposed to sexual violence and harassment when parts of their schools are used as barracks or bases by armed forces, armed groups, or police. Fears of such abuse can cause girls to drop out, be pulled out, or not enrolled in higher years of studies. In countries where sexual violence is used as a weapon of war, girls are placed in a particularly vulnerable position in that the consequences of rape (which include psychological trauma and stigmatisation) put their right to education at risk for the rest of their lives.

(b)        Bullying

This is one of the most common forms of violence in schools which reflects an imbalance of power relationships. It is carried out through repeated verbal or physical acts with the aim of inflicting suffering upon victims over a period of time. Bullying is often expressed in a gendered manner although the acts of bullying may not always target a child based on his or her gendered identity. As a result, boys are more likely to engage in and be victims of physical bullying while girls are more likely to engage in verbal and psychological bullying.  Research has shown that school children from marginalised groups within a society are at greater risk of being bullied and that they may be targeted because of their race, ethnicity, caste, religion, disability, sexual orientation, or gender identity.

Teachers can perpetuate psychological bullying when they speak to school children in a derogatory manner based on the child’s sex, race or class. Research shows that girls may be made to feel worthless, unteachable or stupid if they are viewed as behaving in a manner inconsistent with their assigned role in society.

Bullying in schools is often inappropriately regarded as an adolescent rite of passage. A common means through which girls bully one another is through relational violence such as rumours, gossip and social exclusion. This form of violence targets a girl’s critical social relationships, and can increase her risk of long-term socio-psychological distress. It is often overlooked by educators and policy-makers as a mere expression of ‘girls being girls’ despite its long-term consequences.

 (c)       Cyber-bullying

The advancements made in information and communications technologies (ICTs) such as instant messaging, email and social media have introduced a new aspect of orchestrating violence among school children in the form of cyber-bullying.  The devastating nature of cyber-bullying is that it extends fear, intimidation and in some instances sexual violence well beyond school grounds. Considering the demographic of adolescent girls, cyber-bullying affects these girls at a vulnerable stage when they are developing into sexual beings without necessarily having developed the skills nor the knowledge to protect themselves against attacks pertaining to the same. Girls are often subject to online harm from friends, classmates, or boyfriends. Of fundamental importance is that online bullying follows the bullied child to her home. The young victims will probably experience the bullying every time she turns on her mobile phone or computer.

(d)        Physical and psychological violence as ‘discipline’

Corporal punishment is illegal in the penal system and public institutions of Malawi as per the Constitution, but it is still administered in the home or in private schools. Physical violence by teachers, especially male teachers, is a common experience for both female and male children and it includes being punched, kicked, whipped, or beaten with an object

This use of physical violence is often arbitrarily imposed in that research has shown that some teachers resort to using physical force to inflict pain on schoolchildren merely because the children have displayed behaviour that they do not personally like. This is exacerbated by the stressful teaching and classroom conditions, such as overcrowding, insufficient resources, and increased emphasis on student achievement which create stressful teaching and classroom conditions that may force teachers to resort to punitive discipline as a control measure. Further, in communities where corporal punishment is meted out in schools, such punishment is often in tandem with deeply entrenched beliefs about acceptable forms of discipline, and often stems from a lack of institutional accountability.

In addition to physical violence, psychosocial punishment is also inflicted on children through actions designed to belittle, humiliate, threaten, scare or ridicule.

The Effects of SRGBV against Girls

The effects of SRGBV against girls are such that girls who witness or experience SRGBV are less likely to do well in school. Additionally, many girls dropout of school because of their experience, fear and feeling of disempowerment to condemn the violence committed against them. Research shows that sexual harassment and violence are major factors in school dropout rates for adolescent girls, and partly explain girls’ lower enrolment rates at the secondary level. Beyond the psychological suffering and trauma they experience, young female victims of sexual violence face unwanted pregnancies, unsafe abortions and sexually transmitted infections including HIV. These health risks compromise girls’ schooling and their broader development because many schools do not permit pregnant girls to attend school or allow girls to bring their babies or return to school following childbirth. Young mothers often experience delays in progression to higher school grades and periods of withdrawal from school. In Malawi, girls are thus significantly less likely to return to school after the birth of their child. These young victims are also commonly stigmatised, undermining their status within the community and their ability to access health and social services.

SRGBV against girls contributes to poor performance, lower enrolment, absenteeism and high dropout rates among female school children thereby reducing opportunities for girls, particularly rural girls, to find decent jobs and earn decent income.

Lack of Access to Justice for Rural Women”

The ability to claim one’s rights and seek a remedy is influenced first and foremost by the contents of the laws that establish these rights and regulate the processes for claiming their protection. In this regard, the content of Malawian law and the legal system operate on the presumption that every person is equal and that all of them have equal opportunity to seek the protection of the law when they have had their rights violated. However, this is not always the case as research has shown that both the content of law and administration of justice are often obstructed for the less powerful and privileged, most of them being rural women. The major obstacles to women’s access to justice and equitable enjoyment of their rights and entitlements are the lack of information and knowledge of the relevant laws and harmful socio-cultural norms. In addition, rural women, in comparison to other demographics of the Malawian population, have less time, money and lower levels of education to benefit from the current set up of the law.

Rural women’s access to justice and effective legal remedy and compensation in cases in which they have suffered a violation of their human rights are therefore crucial for them to achieve true equality in accessing resources and services, decent employment and work conditions, social protection in civil and family matters, and in decision-making processes of their communities. These serve as preconditions that are necessary for women and their dependents to live their lives in dignity; realize their human right to food; and become active members of society.

Research found, however, that when a dispute arises, most rural women choose to seek protection of their rights through customary justice systems. These customary justice systems were found to often be more affordable than the formal justice mechanisms and were easier for rural women to access therefore customary legal systems were found to hold a more prominent value among the rural populations of Malawi. Additionally, customary justice systems are more likely to provide women with more space for dispute resolution that is acceptable to the members of the broader community, particularly the men, in which they live. However, the rules applied by customary institutions often fail to comply with the acceptable standards of equality and non-discrimination pertaining in Malawi therefore rural women are often denied justice.

On the other hand, formal courts or other, alternative formal dispute resolution bodies such as the Malaŵi Human Rights Commission or Ombudsman’s offices are, for most rural persons, located far away from the areas they reside. This is compounded by many women’s lack of childcare support facilities or the prevailing social practices in use within their communities which may limit their ability to travel in order to reach these institutions. Additionally, having regard to the rural women’s financial and time constraints, the court processes in Malawi are not long and costly, rural women also face difficulties in getting legal advice and sustaining their claims.

The concept of “access to justice for rural women” should therefore be understood to go beyond rural women having mere access to lawyers and courts; rather, it should be understood to mean that the law and justice mechanisms should be made less complex and accessible to all women and men, including the most vulnerable amongst them.  In this regard, the concept will entail the insurance and protection of the human rights of rural women being recognized through law. Additionally, rural women must be provided with access to institutions (including customary or traditional ones); and to clear, simple and affordable legal procedures and effective remedy for the violation or abuse of their rights.

Lack of Legal Literacy for Rural Women”

Women in rural areas are often not aware of their legal rights. They may not know that they have a right to claim their protection or how to do it because most of these women do not think about their every-day conflicts from a rights-based point of view; therefore, they often have less confidence in themselves as claimants of rights and resources. Consequently, most rural women do not even consider the possibility of filing a complaint before a Magistrate or Judge. This situation is usually perpetuated by practices and socio-cultural norms that dictate a subordinate position for women both in public and private spheres. These norms apply to all dimensions of women’s lives including their work-life and employment thereby affecting them to a great extent. For example, male members of some rural communities in Mzimba, Malawi have refused to allow civil society organisations to educate members of their communities, particularly women, in the new land laws that expressly extend the constitutional right to own property to women because the sociocultural norms pertaining in their communities do not allow women to own property. Such sociocultural norms make women fearful of retribution or ostracism if they pursue land claims or seek for protection from violence. As a result, women tend to be denied access to justice more often than men, and are also more likely to be denied justice altogether.

Several laws and policies that aim to close the gender inequality gap or address gender based violence (GBV) have been enacted in Malawi. These laws include the new land laws; the Gender Equality Act; and the Prevention of Domestic Violence Act which has widened the scope of what domestic violence entails. Further, law reform efforts such as the recently completed reform of electoral laws by the Malawi Law Commission show the government’s will to enact gendered laws that will further promote greater gender equality in Malawi. However, GBV and other forms of human rights violations against women and girls, in particular are still prevalent in Malawi mainly because survivors of GBV do not report or know where to report them. In response to this predicament, the Women Lawyers Association, mHub through its Ufulu Wanga (human rights portal) programme and the British Council have entered into a partnership in the form of a digital campaign through which they will update and summarise these laws and other information on where survivors can get legal remedy for GBV or other human rights violations committed against them; and disseminate this content to the general public in Malawi by uploading it on, among others, the Ufulu Wanga human rights portal and social media sites, all of being easily accessible by members of the general public.

“Female Sex Workers”

Female sex workers constitute a vulnerable group of women who experience significant physical, sexual, emotional and psychological gender based violence (GBV); stigma that is associated with sex work; discrimination based on gender, race, HIV status, drug use or other factors; and other human rights violations.

Most of the violence against sex workers is a manifestation of gender inequality and discrimination directed at women.  As a result, law enforcement officers and sex workers share an antagonistic relationship in which sex workers have, on occasion, suffered violence at the hands of law enforcement officers which has led to many sex workers losing trust in law enforcement mechanisms. Consequently, this has led to a climate of impunity for violence against sex workers, for example, they are arbitrarily stopped and subjected to invasive body searches or detained by law enforcement; arbitrarily detained or incarcerated in police stations and other detention centres without due process; refused or denied health-care services; and often have money extorted from them. Additionally, the stigmatization of sex work has led to some perpetrators to specifically target sex workers to “punish” them in the name of upholding social morals, or to scapegoat them for societal problems such as the HIV pandemic. Further, the stigmatisation and sociocultural norms that dictate the subservient role for women have sometimes led to sex workers’ intimate partners or family members to think that it acceptable to use violence to “punish” them for having sex with other men. Thus, violence against sex workers’ inhibits their access to justice and police protection; and sends a message that violence against sex workers is not only acceptable but socially desirable. From a health perspective, violence against sex workers is associated with inconsistent condom use or lack of condom use which has led to an increased risk of STI and HIV infection among sex workers.

It is, therefore, important that women, law enforcement officers and other members of society are made aware that the safety and rights of sex workers are worth defending.

“Intimate Partner Violence”

Intimate partner violence (IPV) refers to behaviour by an intimate partner or ex-partner that causes physical, sexual or psychological harm, including physical aggression, sexual coercion, psychological abuse and controlling behaviours. One of the most common forms of violence against women is that which is performed by a husband or an intimate partner. Additionally, sociocultural norms tend to encourage people to treat IPV as a “private family matter” or a normal part of life rather than a criminal act. Consequently, this continues to type of violence persists behind closed doors.

IPV has serious short and long term physical, mental, sexual and reproductive health problems for survivors and for their children, and lead to high social and economic costs yet most women survivors do not report IPV because they internalise and endorse problematic attitudes towards the role of gender in sexual practices and IPV such as that men should decide when to have sex; that men need more sex than women; that men need other women; that women who carry condoms are “loose”; and that women should tolerate violence in order to keep their family together.

In Malawi, both reporting of violence and subsequent access to and utilization of services are poor. Three potential strategies for improving and strengthening the utilization of legal, health, and social response services for IPV by women survivors in Malawi include: first, educating women that any type of violence is a problem and that reporting and receiving services are important; second, overcoming the social pressures that inhibit women who experience IPV from reporting what has happened to them, and third, ensuring that when women survivors seek services, those services are available and provided with sensitivity and a high quality of care.

Relevant Malawian laws that govern IPV include: the Prevention of Domestic Violence Act; Penal Code and the Constitution of Malawi.

“Women in Conflict with the Law”

Most women in Malawi are not aware of their rights let alone the legal repercussions of their actions. As a result, many women find themselves under unjustly prolonged periods of pretrial detention in cramped and dirty quarters with insufficient food allocations, inadequate hygiene and little to no clothing or other amenities. These women, therefore, face violations of their human rights in this regard.

Research has shown that a significant number of women are incarcerated many kilometers away from their homes, sometimes for months or years without any progress with their cases, thus many have lost their homes; and relationships and their children in the process. Once released from prison many of these women have no place to return to, in particular if their husbands have remarried, and as many of them had undertaken the role of caretaker of their families (housewife), they are usually unable to source any employment. These women are, therefore, left in a very precarious situation with a high potential of them ending up right back in the prison they left, often as persons without a previous conviction since they were initially held in pre-trial detention.

“Domestic Workers”

Domestic work is one of the few options available to many Malawian women and girls which enable them to provide for themselves and their families. In Malawi, domestic work constitutes informal labour therefore labour law does not extend key labour protections such as retirement benefits to domestic workers. This situation has created a conducive environment for abuse to be committed against domestic workers by their employers and labour agents. The abuse suffered by domestic workers entails physical, psychological, sexual; and economic abuse including forced confinement in the workplace; non-payment of wages; and excessively long working hours with no rest days. In the worst situations, women and girls are trapped in situations of forced labor or have been trafficked into forced domestic work in conditions akin to slavery.

“Violence against Women living with HIV”

Data on beliefs around sexual practices in Malawi indicate that the most common gender biases held by both females and males are that women who carry condoms are “loose”; men should decide when to have sex; men need more sex than women therefore men need several sexual partners; and women should tolerate violence in order to keep their family together. Further, despite most females and males knowing where to go for an HIV test, more than half of 13 to 17 year olds who have ever had sexual intercourse have not been tested for HIV and that rate drops even further among 18-24 year olds to a third or less.

According to UNAIDS, HIV disproportionately women in Africa with women who have experienced violence being up to three times more likely to be infected with HIV than those who have not. Gender-based violence (GBV) has, therefore, been identified as a significant driver of HIV/AIDS infections in women in Africa:

Violence increases the risk of HIV infection in women as a result of physiological and psychological reasons. Physiologically, women are biologically more vulnerable to infection, therefore, forced sex increases the risk of HIV transmission to women due to tears and lacerations, especially in adolescent girls. Psychologically, women fearing violence are less able to protect themselves from infection, thus, they do not have the power to negotiate for safe sex or to refuse unwanted sex, they do not get tested for HIV, and they fail to seek treatment after infection. Further, women have reported fearing discrimination, physical violence, and rejection by their family if they disclose their HIV-positive status.

In response, international organizations such as the UN are increasingly focusing on the elimination of violence against women as key in the battle against the spread of the epidemic. Tell us about what you or your community is doing to curb the spread of the HIV endemic?

“Violence against Women in Uniform”

Women in uniform include, but are not limited to, police women, female soldiers and female prison wardens. Like in other spheres of society, gender norms and other sociocultural norms inform the manner in which women in uniform are treated as compared to their male counterparts. In this regard, women in uniform face discriminatory attitudes and regulations that have resulted in them suffering psychological, emotional or economic violence in one way or the other.

For instance, the practice that female officers who get married to a man who is not a member of the armed or police forces must vacate the barracks while male officers are allowed to reside within the barracks regardless of whom they marry.

This practice may constitute gender based violence in the form of psychological violence and gendered discrimination because the marital status’ of women in uniform are treated differently from their male counterparts in a way that reinforces the view that women in uniform are considered to be ‘less than’ their male counterparts.

They suffer economic violence as a result of the practice that pregnant officers are resigned from their position because they are deemed as being unfit to carry out the duties of, for example, a police officer. If a police woman would like to resume her duties after the birth of her child, she is required to reapply for appointment into her position and must further provide written proof from her parents that her baby will be looked after by them if she is reappointed.

This practice deprives female officers from earning a salary during the period of her pregnancy. Additionally, being declared unfit to carry out their duties constitutes a form of psychological violence as it reinforces within her and her peers that women in uniform are not as capable as their male counterparts.

*****

Asking the woman question of the HIV/AIDS Prevention and Management Bill No. 12 of 2017

One of the key objectives of the Association is to be a watchdog of all the legislation that is discriminatory, oppressive or unconstitutional as regards women and children and ensure that the same is promulgated, amended or repealed in line with internationally accepted standards of human rights. WLA is an organization that is tasked with asking the woman question of legislation and ensuring that laws are created with regard to the lived experiences of women in Malawi. In line with this mandate and objective, WLA has prepared this briefing on specific aspects of the HIV/AIDS (Prevention and Management) Bill No. 12 of 2017 (hereafter referred to as the HIV Bill).

The 2017 HIV and AIDS Prevention and Management Bill

The HIV Bill developed by the Special Law Commission in 2007 seeks to introduce a comprehensive law to regulate the prevention and management of the HIV and AIDS epidemic in Malawi. Further, the HIV Bill provides for the institutional framework for effective regulation of the prevention and management efforts including the establishment, powers and functions of the National AIDS Commission. The HIV Bill takes a multi-dimensional approach by combining public health, human rights and criminal law issues. The Bill, further, seeks to balance rights and obligations of people infected and affected by HIV and AIDS on the one hand and obligations of the State to protect the public at large from the epidemic on the other.[i] Since the time it was developed, the HIV Bill has only been tabled in Parliament this very year.

HIV and AIDS in Malawi

Malawi’s HIV prevalence is one of the highest in the world, with 10.6% of the adult population (aged 15-64) living with HIV. Malawi accounts for 4% of the total number of people living with HIV in sub-Saharan Africa. An estimated 980,000 Malawians were living with HIV in 2015 and 27,000 Malawians died from HIV-related illnesses in the same year.3 The Malawian HIV epidemic plays a critical role in the country’s low life expectancy of just 57 years for men and 60 years for women. Over the last decade, impressive efforts to reduce the HIV epidemic have been made at both national and local levels. New infections have dramatically declined from 98,000 new infections in 2005, to 28,000 new infections in 2015/2016. Malawi has also witnessed a reduction in children acquiring HIV, with New 4,800 new infections in 2015, a decline from 16,000 in 2010.[ii]

In Malawi, the bulk of all new HIV infections occur through unprotected heterosexual intercourse. HIV infection rates show gender, age, social status and geographical variations, with infection more prevalent in women than men, urban than rural populations, and in the Southern region compared to the rest of the regions.

The“woman” concerns raised by the HIV Bill

The HIV Bill comes at a time when there has been significant research and writings on the possible role that the law can play in the HIV/AIDS pandemic. Regionally there have been initiatives such as the SADC Model Law on HIV in Southern Africa.[iii] There have been many contributions made on the draft HIV and AIDS legislation and the implications of these provisions. One voice that has not been prominent in this discourse and debate is that of Malawian women. This commentary from WLAs has taken the HIV Bill and asked the woman question of several problematic provisions. The “woman question” requires us to interrogate a provision for its implications on the lived experiences of Malawian women. If we are going to legislate HIV and AIDS in Malawi then we need to have a very clear and representative figure at the centre of the debate. So who are we drafting these laws for (be it to protect or prevent)? Who is the face of HIV and AIDS in Malawi? Although the language of the HIV Bill is gender neutral, the realities of the pandemic result in a complete feminization of HIV criminalization.

There is a need to ensure that women’s voices, particularly the voices of women living with HIV, are incorporated in the law-making process.

In its current format, despite the many admirable aspects of the HIV Bill, the provisions that create criminal measures to enforce various HIV management efforts have the effect of infantilizing, criminalizing, stigmatizing and potentially victimizing women – particularly women who are already living with HIV. Rather than being protective and preventive, the law is paternalistic positing women as both victims and vectors of HIV. Yet in reality women living with HIV rarely describe themselves as “victims” when relaying how they became infected, and the language of vectors is especially harmful for those most marginalised members of society such as female sex workers. The HIV Bill both demonizes and infantilizes women, they are painted as carriers of the disease but also  as potentially careless and callous mothers; and women of loose morals. This in a country where more than half of the women are married before the age of 18, and it is within these relationships (oftentimes violent relationships and a product of harmful cultural practices) that they either become infected or learn of their infection. In this manner, lives that are already filled with violence are suddenly even more fraught with danger.

WLA’s Stance on the Criminalization of HIV Transmission in the HIV Bill

There are clear public health implications to a pandemic such as HIV and AIDS and the role that the government opts to play in the management of the pandemic has a severe impact on the course of the disease. Legislation can be used to set out the manner in which issues such as voluntary counselling and testing; partner notification; medical care and treatment of AIDS related illnesses; and, epidemiological surveillance amongst other things are handled. The UNAIDS Handbook for Legislators on HIV/AIDS, Law and Human Rights (the Handbook) suggests that laws should require specific informed consent before HIV testing is done for fear of risking violation of a person’s right to both privacy and personal liberty, the Handbook also goes on to stress that targeting specific groups for compulsory testing is in violation of the non-discrimination principle under international human rights law.[iv]

WLA has noted with consternation that the overly punitive crafting of many of the provisions in the HIV Bill, that were intended to prevent the spread of HIV and AIDS, are instead more likely to lead to disproportionate demonization and vilification of women living with HIV. This in turn will have the regressive effect of encouraging rather than preventing the spread of HIV and forcing those living with the virus to turn away from the lifesaving services that have had a real impact on the pandemic in Malawi so far. This Bill, if it becomes law in its current form, risks destroying many of the gains that we as a country have made in handling HIV by creating criminals out of those most vulnerable to this terrible disease. If knowing your status creates a potential criminal out of you then people will avoid “knowing” their status at all costs.

As a country we need to be clear that reducing the spread of HIV  by reducing stigma and persecuting persons living with HIV cannot coexist, we cannot do both.

Accordingly WLA recommends that the provisions of the draft legislation that exact criminal sanctions on persons living with HIV (PLHIV) be deleted and that the prevention and management efforts of the proposed law be enhanced by provisions that aim at the reduction of stigma and the debunking of dangerous myths about HIV rather than the inadvertent creation and reinforcing of messages that posit PLHIV as devious carriers and spreaders of disease. Specifically WLA recommends that the following articles be entirely removed or drastically amended:

Problematic provision (s) Recommended action
Article 4(2) – that over-broadly prohibits harmful cultural practices; Deletion of the article, insertion of the term “willfully and knowingly” in article 4(3)
Article 18(2)(b) – that requires compulsory testing of Pregnant women and their sexual partner Deletion

Continue to enhance the public health measures that have achieved successful reduction in vertical transmission

Article 27(b) – that allows for pre-recruitment testing of domestic workers; Deletion
Articles 41-44 – that prescribe personal conduct and responsibility of PLHIV and criminalize transmission of HIV. Deletion.

 

Article 4(2) – that over-broadly prohibits harmful cultural practices;

Analysing this provision it can be construed that all participants in such practices, conceivably adhered to as a matter of tradition, would be in contravention of the law and presumably risk being prosecuted, fined and imprisoned for taking part. The HIV Bill does not make any distinction between perpetrators, participants or accomplices. The very victim that the drafters sought to protect can be prosecuted for their involvement. The provisions on harmful cultural practices appear to be significantly ambiguous and do not include any defences. It is doubtful that the Special Law Commissioners’ intention to eradicate harmful practices that contribute to the spread of HIV and also ‘denigrate women’ are best achieved in the form of a blanket prohibition of established customs. The obvious danger that comes with using criminal sanctions is that these and other ‘harmful practices’ would merely be driven underground

Criminalization of the practices in this purely punitive manner may not automatically achieve that goal. There is no obligation upon the government to provide comprehensive prevention services when it comes to harmful cultural practices; services such as information and education for the targeted social or cultural groups.

Article 18(2)(b) – that requires compulsory testing of Pregnant women and their sexual partners

WLA urges the lawmakers to take a holistic stance that requires the protection of the mother and her human rights, to achieve the protection of the unborn child. Infantilizing the pregnant woman living with HIV by coercing her to undergo testing and take medication presupposes that these are choices she would not make if offered the same. .as if she is nothing but a recalcitrant child that needs to be told what to do, when to do it and why to do it despite herself. This legislation sets in stone a paternalistic approach that makes women out to be able to make good decisions about their health and that of their unborn child.

The truth is that most women WANT to protect their babies, they want to have their babies born HIV free, they WANT to live.

Attaching a criminal sanction or coercive requirement does not promote a healthier outcome for the woman and her baby, rather it devalues the life of the mother living with HIV in favour of a baby born HIV-free.

The WHO and UNAIDS have explicitly rejected compulsory HIV testing as part of the process for validation of the elimination of mother to child transmission of HIV: “Actions taken to eliminate new infections among children must always reinforce and promote the human rights of women living with HIV and their infants.[v] This means that in order to meet the WHO and UNAIDS requirements for being declared as having eliminated mother to child transmission of HIV, countries must show that they did not violate human rights in the process and particularly that they did not conduct compulsory HIV testing of pregnant women (or forced sterilization).

Obliging pregnant women, and the other targeted groups to undergo testing not only infringes their human rights, it also poses severe public health risks. It can be unreliable, if people are tested whilst they are within their window period they are under the false assumption that they are HIV free and would live accordingly. Coincidentally, the early stage of their infection is also the time when people are most infectious.

Compulsory testing sounds like a stern measure but in reality it could simply be bypassed – pregnant women and their partners could avoid using life-saving health services for the duration of their pregnancies.

Furthermore, the first person in a family or relationship to test positive is almost always treated as the person who brought HIV infection into the home, even if it turns out that the other partner was also positive when that first test occurred. This belief opens the door for men bringing charges against their wives or female partners for allegedly exposing them to HIV.[vi]

Additionally, Malawi has achieved great success implementing the option B+ strategy, which was invented by Malawi in 2010 and has been adapted by WHO as a global strategy for eliminating mother to child transmission. Through this strategy, over 95% of pregnant women go through counselling and HIV testing and where they are positive, they are immediately put on life-saving medication.

Introducing compulsory testing of pregnant women could reverse progress made and undermine Malawi’s leadership in the global effort to eliminate mother to child transmission.

Article 27(b) – that allows for pre-recruitment testing of domestic workers

Mandatory HIV screening is discriminatory and constitutes a gross violation of the rights to privacy, dignity and employment. Indeed, the International Labour Organization (ILO) Code of Practice on HIV/AIDS and the World of Work maintains that ‘HIV testing should not be required at the time of recruitment or as a condition of continued employment. Any routine medical testing, such as testing for fitness carried out prior to the commencement of employment or on a regular basis for workers, should not include mandatory HIV testing.’[vii]  Nevertheless, the intimate and unique role that domestic workers play in a home has been used as justification for their inclusion for pre-recruitment HIV testing. Alleged sexual abuse of children (by domestic workers) as further justification. This was something in the minds of the drafters and the public queried during the consultative process almost a decade ago! The other underlying fear was that a female domestic worker living with HIV would potentially have sex (be sexually assaulted) by the man of the house and thereby bring HIV into the family home. Why must we legislate to protect women from philandering husbands in a way that blames the “other woman” and legitimises the sexual assault or sexual harassment of a domestic worker – women, often girls, who are in a desperately unequal power relationship with their employers.

Article 27(b) is yet another stark example of the ways in which the HIV Bill seeks to protect others from PLHIV and not simply protect PLHIV and prevent transmission of HIV. Employing someone to take care of your children is always a delicate business. Whether that individual is or is not a PLHIV. Screening a potential domestic worker for HIV does not tell you much more than that they tested negative (if they test negative) on the day that they were tested. That person could well be within their window period, or could be a mere minutes away from being infected. Sexual abuse is a monstrous crime, a crime that is unaffected by a provision that allows HIV screening of domestic workers. Potential employers have the responsibility to ensure that the work environment is one where there are minimal risks of transmission to and from a domestic worker. A matter easily dealt with by following firm hygiene guidelines. The responsibility for ensuring the safety of our children rests squarely with us the parents and guardians, the employers and not solely the domestic worker.

Part X: Articles 41-44 – that prescribe personal conduct and responsibility of PLHIV and criminalize transmission of HIV

Part X of the HIV Bill provisions is damagingly titled ‘Personal Conduct and Responsibility.’ Labelling the section in this manner only serves to reinforce a version of the HIV/AIDS pandemic that is cast in a distressing binary of victims and vectors. Discourse which flies in the face of literature and logic about the epidemiological and the social aspects of HIV/AIDS. There is no us and them when it comes to HIV/AIDS in Malawi – some are infected, but all of us are affected by HIV and AIDS.

Transmission of HIV rarely occurs with fanfare; instead it happens silently within the intimate spaces of human existence.

There are HIV-positive individuals who intentionally or recklessly expose others to infection and it would be inconsistent with the purpose of criminal law to exclude such behaviours from its scope completely. Even so, such acts could easily be prosecuted under existing legislation. As Lazzarini et al eloquently put it: the behaviour most widely accepted as wrong — deliberately using HIV as a tool to harm or terrorize another — is too rare to influence the epidemic, whereas the behaviour most responsible for spreading the virus—voluntary sex … —is difficult and controversial to prohibit.’[viii]

For the time being there is no scientific, empirical or even informal evidence that the behaviour to be targeted occurs to such an extent that the creation of an HIV-specific statutory offence is necessary; an HIV-specific statutory offence would have no or little practical utility; the social costs entailed in creating an HIV-specific statutory offence are not adequately justified; and, that an HIV-specific statutory offence instead infringe the right to privacy to an unjustifiable extent.[ix]

The provisions in the HIV Bill rely upon the offender having tested positive for HIV. Under section 41, when a person is ‘diagnosed as having HIV infection or AIDS’ they are obliged to undergo counselling and to comply with prescribed precautions. The full burden of containing their infection is placed upon the PLHIV: vectors and victims. The potential public health implication of this provision is to remove all individual responsibility for one’s own sexual health – the implication is that if all PLHIV are under a legal obligation to take precautions then everyone else is safe. A suggestion that flies in the face of the knowledge, the context and the realities of the HIV pandemic and the successful public health measures that we as a country have put in place to change the tide.

Article 43 is narrowly crafted (which is good) and criminalises deliberate infection: ‘any person who deliberately infects another person with HIV shall be guilty of an offence and shall be liable to imprisonment for fourteen years.’ Infection must have resulted from the act in question. Exposure to infection or an attempt to infect would not suffice. Furthermore, there is no condition that the offender is a PLHIV and as such evidentiary requirements concerning knowledge are not automatically relevant. The crux of the offence is that the offender has the mens rea or ‘guilty mind’ to infect and a causal link must be made between their action and HIV infection of the complainant.

In article 44 deliberate is replaced with reckless or negligent infection. The Commission intended to create an offence that captures instances where someone either knows or suspects that they are HIV positive. In reality what would be the evidentiary basis for criminal suspicion of status. In a country like Malawi just about everyone who does not know their HIV status for a fact, could be (or perhaps should be) living with the suspicion that they might be HIV positive. ‘Another problem if this approach is followed, is that any knowledge of HIV/AIDS is dangerous. People could consider it “safer” to avoid all knowledge, all information, all thinking of HIV/AIDS. The less you know of HIV/AIDS the less your chances are of “having reason to believe”’ that you are HIV positive.’

The Government of Malawi should ensure access to information and education about the causes, modes of transmission, means of prevention and management of HIV and AIDS messages on HIV and AIDS, as well as the actual provision of means of HIV prevention – for example provision of sterilising chemicals or machines that barbers can use to treat their equipment. Interventions such as these seem much more likely to ensure safety and prevent instances of HIV infection than prosecution of narrow or sloppy reckless infection offences where there will have to be a causal link made between the alleged perpetrator, their recklessness or negligence and the HIV infection of the accuser. Taken in its entirety, Part X of the HIV Bill does nothing to enhance current criminal law provisions that could be used to prosecute harmful HIV-related behaviour.

The HIV Bill and the feminization of HIV Criminalization

Criminalizing HIV/AIDS overlooks that reality that not all Malawians are free to develop personal abilities and make choices without the limitations set by gender roles. Applying criminal law to HIV exposure or transmission does nothing to address the epidemic of gender based violence or the deep economic, social, and political inequalities that are at the root of women’s and girls’ disproportionate vulnerability to HIV. On the contrary, criminalization is likely to heighten the risk of violence and abuse that Malawian women face; strengthen prevailing gendered inequalities in healthcare and family settings; further promote fear and stigma; increase women’s risks and vulnerabilities to HIV and to HIV-related rights violations; and have other negative outcomes for women.[x]

Women bear the brunt of the HIV pandemic – they are the first to learn of their status and are largely responsible for the care of those living with HIV. This entails that the criminal transmission provisions in Part X of the HIV Bill will overwhelmingly be applicable and be applied to women.

There are several real harms from HIV criminalisation that have been pointed out in this briefing including the following:

  • Women frequently are the first to know their status, and therefore, can be at greater risk of prosecution.
  • Women may face domestic violence for disclosing their HIV status to their partners or family. But they also risk arrest if they do not.
  • HIV criminalization does not protect women from sexual coercion or violence.
  • The most vulnerable and marginalized women such as child brides or female sex workers, will be most affected.

Legislators and those responsible for the interpretation and enforcement of law must base their HIV response not on populist morality but on the strong evidence base provided by three decades of clinical, scientific and social research into HIV and AIDS.[xi] What is clear is that the criminalisation of transmission and the compulsory testing provisions that have been highlighted in this post encourages a false sense of security, with the targeted groups (women, pregnant women, domestic workers, persons living with HIV) being misleadingly represented as the only vectors of disease and that they are now being controlled. Everyone else can be lulled into complacency about their own sexual health acting under the assumption that pregnant women, for example, are largely HIV-free. Furthermore, this sends the wrong message about risk groups by promoting an “us and them” mentality and creating further fear, further denial and enhancing stigma.

The HIV Bill creates a situation where persons knowingly living with HIV (who are largely women) are wholly responsible for controlling their disease and protecting the “uninfected” from infection.

It is important to remember that, most of the time, people who transmit HIV to another person do so because they don’t know that they are HIV positive or that they are placing their partner at any risk of HIV infection. This happens frequently because people are generally MOST infectious (have the highest amount of HIV in their blood) in the first two months after they, themselves, have become infected and before they have an HIV test that detects HIV antibodies in their system. There are close links between violence and vulnerability to HIV and in Malawi we know that many women live lives that are darkened by violence. As many as 1 in 3 women and girls have and continue to experience sexual and gender based violence.

Criminalization of HIV non-disclosure ignores the power imbalance that can make it more challenging for women to reveal their status to their sexual partners, including the fear that it would one day be used against them.

Applying criminal law to HIV nondisclosure or exposure doesn’t do anything to end the social inequalities that make women and girls more vulnerable to HIV, like gender-based violence or difficulties in attaining financial independence for themselves and their family. In fact, provisions like these can increase women’s risk of violence and abuse, and further promote the fear and stigma experienced by women living with HIV.

Brief Gender analysis of the HIV/ AIDS (Prevention and Management) Bill 2017

The table below presents a summary of the WLA gender analysis of the HIV and AIDS (Prevention and Management) Bill, 2017

PROVISION GENDER ISSUE RECOMMENDATION
General The criminalisation of HIV /AIDS is generally problematic.  It disproportionately affects women more negatively than men. The HIV Bill should provide for other forms of redress other than penal sanctions.
The HIV Bill does not use gender sensitive language. It uses pronouns such as “he and his” in most cases and perpetuates the stereotyping of women and simultaneously rendering them invisible The  Bill should use gender sensitive language or include both “he and she” as appropriate considering the feminine face of HIV/ AIDS and the sensitivity and “blame nature “ of HIV / AIDS
The HIV Bill has not reflected how HIV / AIDS disproportionately affects the poor and marginalized such as women who are the most affected with HIV/AIDS. The HIV Bill needs to isolate issues that particularly affect marginalized groups (including key populations) and highlight how the same is being addressed. For women, most of these issues are raised below.
Article 4 (2)- Any person who practices harmful practices commits an offence and is liable to a fine of k5,000,000 or 5 years imprisonment Most girls and women ( e.g. widows) are common victims of these practices and not always willing and informed participants

 

The provision should limit criminality being punished by including the elements of knowledge and will e.g. provide that: “any person who knowingly and wilfully practices…”
The schedule has focused on harmful cultural practices and left out other forms of harmful practices as has been broadly defined in the HIV Bill. The listed practices in the schedule need to be defined or expanded beyond harmful cultural practices
Article 5- Any person who subjects, permits or encourages another to indulge in harmful practice commits an offence Women are mostly forced or coerced or threatened by the patriarchal system to permit and subject girl children to harmful practices. It would take serious awareness campaign  for many to appreciate the harm caused in view of HIV /AIDS The provision should be amended to provide for civic education on HIV AIDS and harmful practices and state that: “any person who knowingly and willingly permits or subjects another…”
Article 10(1)(a) – a health officer is mandated to disclose information one’s HIV / AIDS status with written consent of infected person or his guardian…. Apart from issues of right to privacy the majority of women are illiterate as such the written consent might not always be appropriate for them Consider expanding it to oral consent with a witness that can write
Article  18 : Compulsory testing for pregnant women and sexual partners

 

Compulsory testing is unconstitutional and in serious breach of rights of women

It is retrogressive and would discourage women from testing. It could also fuel domestic violence

This provision must be deleted.
Article 12 of the HIV Bill prescribes the recognised modes of transmission of HIV and includes under subsection (ii) mother to child during pregnancy, labour, delivery or breastfeeding The use of the term “mother-to-child” is widely known and almost universally accepted although it presupposes the mother and not the father as being the only person responsible for transmitting HIV to the child

 

The HIV Bill should use terms that are gender sensitive and in this regard adopt the  term is “parent-to-child” to emphasise that it is not only the mother’s responsibility
Article 13 (2)- health service provider whose services are required by a child below the age of 13  must  apply to court for legal guardianship of the child Not practical.

More girls than boys are likely to be affected by this provision and fail to access treatment.

The article to be amended to find other means apart from seeking recourse to the courts; child protection officers can be used or any other suitable official other than the health officer.
Article 27- an employer shall not require testing  as a precondition for recruitment Women face a lot of discrimination in the work place at different stages of their employments not only on recruitment The article should be broadened to include other areas of employment such as training, promotions and employment benefits. No one should be tested after being employed in order to access these benefits.
Article 27(b) as a pre recruitment requirement, an employer may demand HIV testing for a domestic worker Most domestic workers are women and would be disproportionately affected by the provision. The sub section should be deleted.

 

 

Articles 48 and 51 provides for the composition of the National Aids Commission and its committees respectively The provision is devoid of gender in its composition and does not reflect the requirements of section 11 of the Gender Equality Act, 2013 The 40%-60% sex representation quota in the Gender Equality Act should be reiterated in the composition of NAC.
The HIV Bill is silent on Care of Carers of persons suffering from HIV/AIDS related illnesses Women disproportionately bear the burden of caring for the sick as guardians in hospitals and homes compared to men. This results in the women being unable to engage in socioeconomic activities which results in dependency on men and increasing their vulnerability for abuse. The HIV Bill should provide for care givers including their recognition and support in care work

 

[i] Law Commission Report.

[ii] HIV and AIDS in Malawi https://www.avert.org/professionals/hiv-around-world/sub-saharan-africa/malawi

[iii] Available at www.justice.gov.za/vg/hiv/docs/2008_Model-Law-on-HIV-in-Southern-Africa.pdf

[iv] UNAIDS/IPU (1999) Handbook for Legislators on HIV/AIDS, Law and Human Rights: Action to combat HIV/

[v] See https://results.unaids.org/sites/default/files/documents/Validation%20Case%20Study.pdf

[vi] The Positive Justice Project “What HIV Criminalization Means to Women in the U.S.”

[vii] Section 8.1 of the ILO Code of Practice on HIV/AIDS and the World of Work.  ILO, 2001. Malawi is a member state of the ILO.

[viii] Lazzarini, Z., Bray, S. and Burris, S. ‘Evaluating the impact of criminal laws on HIV risk behavior’ Journal of Law, Medicine & Ethics, 30 (2002): 239-253, p 251.

[ix] SALRC Fifth Interim Report on Aspects of the Law Relating To AIDS: The Need for A Statutory Offence Aimed At Harmful HIV-Related Behaviour (Project 85) 2001.

[x] ATHENA “10 Reasons Why Criminalization of HIV Exposure or Transmission Harms Women”

[xi] Edwin J Bernard and Sally Cameron. Advancing HIV Justice 2: Building momentum in global advocacy against HIV criminalisation. HIV Justice Network and GNP+. Brighton/Amsterdam, April 2016.

ELECTION OF CHAPTER LEADERSHIP- BLANTYRE & LILONGWE

NOTICE

Notice is hereby given that elections of leadership positions for the Blantyre and Lilongwe Chapters of the Women Lawyers Association will be held on 24th June 2017 from 2pm – 4pm at the following locations:

  • Blantyre – Sunbird Mount Soche Hotel
  • Lilongwe – Sunbird Lilongwe Hotel.

Positions open for elections are as follows:

  1. President
  2. Secretary
  3. Treasurer
  4. Coordinator Research and Advocacy
  5. Coordinator Legal Aid Services
  6. Coordinator

 

Congratulations Chisomo Kaufulu-Kumwenda #2017YALIMWF

Chisomo 2017YALIMWF

WLA Malawi proudly congratulates member and secretary of the executive committee, Chisomo Kaufulu-Kumwenda one of the 19 Malawian young leaders that will participate in the 2017 Mandela Washington Fellowship for Young African Leaders in the United States.

The Young African Leaders Initiative (YALI) aims to invest in the next generation of African leaders. Every year, the Mandela Washington Fellowship for Young African Leaders takes young African leaders to the United States for academic instruction, practical experience, and mentorship in the fields of public management, civic leadership, and business and entrepreneurship.

Chisomo Kaufulu-Kumwenda is a human rights advocate and a socio-legal researcher. She heads the southern regional office of the Malawi Human Rights Commission. Chisomo is passionate about access to justice for vulnerable groups especially women, children, and people with disabilities.

Congratulations Chisomo!

Introducing the new Logo for the Women Lawyers Association (Malawi):

introducing the new WLA Logo

We are proud to announce the launch of the logo as part of the ongoing evolution of  WLA’s brand. The logo has also been designed to complement and avoid confusion with the logos that identify related legal and justice organizations, particularly the national bar association  Malawi Law Society and the female judicial officers’ association, WOJAM.

The simplicity of the logo is deliberate, WLA is not trying to create a competitive trademark. What is paramount is that the name of the association is emphasized and is clearly linked with the pursuit of justice.

 

 

 

Brand New Logo for WLA

President’s Message

Dear WLA Members,

It is truly humbling to have been elected to serve as the President of this Association. I still recall how excited I was to participate in the meetings and activities of WLA when I was first called to the bar. It was an honour then. It remains an honour now. I thank you for entrusting me with this role, and I pledge to serve you to the best of my abilities. Firstly I thank the former leadership for taking the lead in helping to revive WLA and enabling this transition.

I want to see WLA strengthened and united in achieving our stated aims and objectives, and particularly to see it become an organisation that is professionally and personally rewarding to its members. When I first joined you could count the number of female lawyers there were in Malawi. Now over 126 women have completed the WLA registration survey! We are a young association – 82% are between the ages 21-39. Almost all of our members, 94%, are employed and are working full time. We have the numbers and certainly the capacity to build a strong, relevant and formidable institution.

The newly elected executive committee has spent a significant amount of time discussing and planning on the best way to keep the Association relevant to its members and make WLA work. In the coming weeks members will receive a series of emails from WLA leadership, there are a few key steps that we need to take as an organization and it is my sincere hope that we can count on you. Here is just a snippet of what is in store for us and what will be required of you:

  1. Invoices for WLA membership fees! I urge you to pay your annual subscription – and any additional pledges you made to help get the Association back on its feet. We have started off the year with grand dreams and an empty kitty. Members who have subscribed by paying the annual fee will be eligible for a number of benefits including: discounted or waived fees for trainings and social events; notifications of job/publishing/travel opportunities; first consideration when there are sponsored trips; and being featured in the online member directory among others.
  2. Invitation to the chapter meeting for the election of the WLA Chapters leadership. The Association is only as strong as its membership and the Chapters are the easiest way to keep connected with other members and to participate in WLA professional and social activities. Chapters are expected to meet and elect new leadership within the next two weeks. Young women are particularly encouraged to come forward and stand for office or vote in new leadership.
  3. Publication of the WLA Calendar of Events! There are a series of events that are in the works – the first will be a “Know your Association” session followed by a women’s and children’s rights training session in preparation for our first series of legal clinics! We are also planning a social event to foster networking in a more relaxed environment. Women in the Lilongwe Chapter have already started meeting and training for netball social matches, we hope that the Blantyre, Zomba and Mzuzu Chapters will soon follow suite and keep the rest of the members abreast of the activities – especially via social media! Post your pictures on the WLA Facebook Page, follow and tag @WLAMalawi on Twitter.  Update members on the whatsapp group (if you haven’t been added to the whatsapp group send a request via email info@womenlawyersmalawi.com)
  4. Be a mentor, be a mentee – you will also receive a really brief survey to find out who is interested in being a mentor or being mentored and commence a structured process of matching people up for a unique and enriching mentorship experience. This project promises to be an excellent means for bringing back the invaluable learning and leadership exchanges between senior members of the Association and the incredible (and rapidly growing) community of young lawyers!

Our current priorities include re-establishing (and maintaining) a secretariat and building up strong foundation through membership, member engagement, resource mobilisation, continuing legal education, mentorship, networking, partnership building and SERVICE. I have such vivid memories of WLA being synonymous with service for the most vulnerable members of Malawian society – women and children. This call to service led to the establishment of WLA and is a prominent aspect for the continuing relevance of the association, not just to its members but to the broader Malawian society.

WLA membership should have a clear and definitive impact on our personal and professional lives, it should matter to us and to those around us. I am so excited to be a part of this new chapter in the Association’s story and I look forward to a vibrant WLA!

Best wishes to you all for this year.

Sarai Chisala-Tempelhoff