CPC report by Ernest HOPKINS
Sophia Gruskin: Moderator
The session provided case studies that demonstrated the complexity associated with modifying existing laws and constitutional provisions in political environments where the outcomes could be worse for people with HIV and women than the problematic status quo. Seodi described the status of a legal challenge in Malawi to a constitutional provision impacting women’s spousal property rights in an environment where women’s work in the home and caring for children is not valued as a "material financial contribution to the household"--a key criteria for equal division of property rights.
Nandinee posed the question of how acceptable is it or should it be to put the fight for human rights for sex workers in the context of public health. Especially when public health concerns frequently bump up against the fundamental human rights of sex workers as individuals. Rights should be seen as a universal entitlement not as an end to the public good. Irina detailed the social alienation tied to injection drug use in Russia and the restricted access to HIV care and treatment since the Global Fund pulled out of Russia. The pullout has resulted in a recurrence of stigma and alienation for people with HIV and injection drug users. She made an impassioned plea for the Global Fund to return to Russia to release the individuals who were in care from what she described as a death sentence. Felicita and Johanna described the increasing use of criminalization of HIV as a marker to human rights and marginalize openly LGBT people in Africa where 38 countries criminalize homosexual behavior. Despite South Africa’s affirmation of gay rights and marriage in its constitution in 1996, the current trend in African legislative reforms is towards compulsory HIV testing and partner disclosure with the imposition of harsh punishment from imprisonment to the death penalty for living as an openly LGBT person or a sexually active person living with HIV.
Track F report by Skhumbuzo Maphumulo
This session tackled a range of challenging issues relating to how the law may protect, or place at increased risk women and vulnerable populations.
In Malawi, an existing piece of legislation in the country deprives women of rights to own property on the dissolution of the marriage. The law only regards property as “jointly owned” in situations where the claimant contributed financially towards its acquisition. It was contended that the law perpetuated and entrenched a system based on inequality as very few properties are registered in women’s names. This, in turn, places women at risk of HIV as women tend to depend on men for their livelihood, which makes it hard for them to negotiate safe sex practices. A legal challenge aimed at correcting this anomaly has been launched.
Nandinee Bandyohpathy spoke about the “absolute and indivisible” rights of sex workers, and highlighted the consequences of failing to integrate human rights and public health. In India women are tested for HIV without counselling under the guise of scaling up testing for HIV. It is therefore evident that rights are abused through provider initiated testing measures. She called for sex workers’ rights to be universal and that laws that encourage the harassment of sex workers should be removed from the statute books. There should be an end to the arbitrary use of vagrancy, loitering and other laws to arrest and detain sex workers. The removal of such laws is not enough. An enabling environment needs to be created as well, by ensuring access of sex workers to justice. Decriminalisation should apply to both the selling and buying of sex.
For five years activists in Russia have been advocating the reduction of harm to vulnerable populations such as drug users and sex workers. These measures included the introduction ofopioid substitution therapy, overdose prevention methods and the linking of prophylaxis treatment to human rights. The problem is that existing legislation creates adds to the vulnerability of these groups as their activities are regarded as illegal.
Felicity Hikuam of ARASA presented that organization’s efforts to combat the growing number of laws in southern Africa that criminalise homosexual behavior. At the heart of this effort is the necessity to counter the argument that homosexuality is “un-African” and represents immorality imported from the West. Johanna Keller and the AIDS Legal Network are struggling against the growing trend in the law to criminalize HIV transmission, with their efforts complicated by the support of some women’s groups for these laws and the false dichotomy created between public health and human rights,as these laws do not in reality improve public health.
A female member of the audience raised a serious concern that there was an assumption on the part of some of the panellists that there is general agreement that the criminalisation of HIV transmission was bad, which in fact is not the case. The argument was based on the fact that women activists were largely supportive of criminalisation of HIV transmission. One of the panellists conceded that there is no consensus on the issue and that the issue ought to be debated further.
A point was made that advocacy for law reform is time consuming, labour intensive, politically complex and risky. It is therefore important to work with law makers, the judiciary and law enforcers. Vulnerable groups must be encouraged to know their rights, but as always more resources are necessary to improve access to justice.