2. Challenging Abusive Laws through Legal Literacy Capacity Building of Female Sex Workers (FSW) to Enhance Universal Access to SRHR/HIV Services: The Case of Malawi By Humphreys SHUMBA UNFPA – Malawi

3. Presentation Outline 1.Introduction 2.Issues 3.Challenging abusive laws 4.Lessons Learnt 5.Recommendations 6.Practical Steps 7.References

4. Sex Workers targets for Police brutality Sex workers wait for clients on a street of the red-light district, 9, 2009. Source: REUTERS/Pablo Sanchez.

5. Introduction Stigma, discrimination and human rights abuses remain an ongoing challenge to an effective response to HIV and AIDS in many countries including Malawi. People living with HIV (PLHIV) as well as key populations are at higher risk of HIV. A protective legal and regulatory framework is crucial to reducing stigma and discrimination and to promote effective national responses to HIV and AIDS.

6. Introduction cont. Although most countries in the region have constitutions built upon human rights principles, violations of rights of people continue unabated. The Constitution is the supreme law of the land and mandates the state to enact laws and develop policies that meet the health needs of its citizens. A number of countries in Eastern and Southern Africa have enacted laws to deal specifically with aspects of HIV and AIDS,

7. Introduction cont. The constitution of Malawi - the supreme law of the land - is built on human rights principles It contains bill of rights that include right to equality, privacy, security, dignity etc. It mandates the state to enact laws and develop policies that meet the health needs of all Malawians

8. Laws, policies and practices that are harmful to HIV responses Criminalization of sex work Punitive law enforcement practices Confiscation of condoms Mandatory, compulsory or coerced testing

9. Issues Laws inconsistent with human rights principles are wide spread globally including. For example in 2009 some female sex workers in Malawi were subjected to mandatory HIV test The HIV test results were used as evidence in criminal cases against them. Such practices only encourage stigma and discrimination resulting in reduced ability of sex workers to access health care The public disclosure of their HIV status in open court was a clear violation of their rights.

10. Issues cont. Legal environments comprise not only written laws, but also law enforcement practices of police, public security and legal institutions The laws on sex work are often accompanied by loosely worded guidelines that give authorities room for interpretation. The majority of people are not fully aware of their rights and how to enforce these rights and enforcement mechanisms are not always accessible and well resourced.

11. Challenging the abusive laws The test case of sex workers in Malawi taking government to court is a typical example of how abusive laws can be challenged. The grounds for suing the government included: 1.The sex workers were subjected to mandatory HIV blood testing without their informed consent. (In this case mandatory testing was unconstitutional as it violated their constitutional right) 2.The names and test results were made public Whilst legal recourse is one way of addressing these challenges, legal literacy of the key populations is another option

12. Challenging the abusive laws cont. UNFPA Malawi Country office has been supporting such activities. 1.The Police Service/ Magistrates and the sex workers have been trained in human rights and pieces of legislation which violate human rights of sex workers. 2.In districts where these interventions have been implemented; the working relationships between the Police, Magistrates and the sex workers has tremendously improved with less cases of violation reported. 3.Sex Workers are allowed access to services (even when they are arrested for other cases) 4.Initiatives of sex workers and their organizations to improve the legal environment

13. Lessons Learnt Lack of legal and constitutional awareness is a bedrock of all sorts of human rights abuses which hinder marginalized and key population from accessing services. Law enforcers (such as the police) exploit this lack of awareness to violate people’s rights. Although specific laws on HIV and key populations may not be available and favorable, the available provisions in the constitution are adequate with which to challenge abusive laws. Legal empowerment of sex worker communities underpins effective HIV Responses. Empowerment of marginalized and key populations is therefore crucial. Service providers are also challenged as far as legal literacy is concerned, hence also requiring capacity building

14. Recommendations Countries should conduct assessment of the legal and regulatory framework of their countries to ensure that: Each country needs to define its own priorities in relation to law reform and changes to law enforcement practices, informed by an assessment of objectives that are realistically achievable and relevant to the local context. 1.The law must protect and promote human rights in the context of HIV and AIDS and prohibit all forms of discrimination on the basis of actual or perceived HIV status 2.There must be specific protection in law for the health rights of all people in the context of HIV and AIDS, including  the right to HIV testing with voluntary and informed consent and pre- and post-test counselling  prohibition on HIV testing without consent  the right to medical confidentiality  prohibition on disclosure of a person’s confidential HIV status

15. Practical steps It is critically important that sex workers are centrally involved in efforts to improve legal environments. Sex workers and, where they exist, sex workers’ organizations should be supported to participate in setting national priorities for an agenda for action to improve the legal environment for sex workers. Recognizing that sex work is legitimate work provides a framework within which sex workers can benefit from the same rights and protections as other workers, including access to services as other workers, including access to services and freedom from discrimination and exploitation.

16. Sex Workers suffer a lot of human rights violation

17. References Baral S, Trapence G, Motimedi F, Umar E, Lipinge S, Dausab F and Beyrer C, ‘HIV Prevalence, Risks for HIV Infection and Human Rights among Men Who Have Sex with Men (MSM) in Malawi, Namibia, and Botswana’. PLoS ONE, 4(3), 2009, available at www.plosone.org/article/info:doi%2F10.1371%2Fjournal.pone.000499 7 (Accessed 15 July 2012) www.plosone.org/article/info:doi%2F10.1371%2Fjournal.pone.000499 7 Brenny P, UNAIDS Presentation for the Meeting of the HIV/AIDS Committee Malawi National Assembly. UNAIDS Country Office Malawi, Crossroads Hotel, Lilongwe, 13 January 2010. Burton P, Suffering at School: Results of the Malawi Gender-Based Violence in a Schools Survey. Malawi, October 2005.

18. References Chizimba R and Malera G, Counting the Untouchables: Draft Report of the Situational Analysis of the magnitude, behavioral patterns, contributing factors, current interventions, and impact of sex work in HIV prevention in Malawi. Malawi, November 2011..Kainja G, ‘Malawi HIV/AIDS Policy and Development report’, 72, 2005 as cited in MLJ, Vol 1, Issue 1, 2007.