Leitner Center for International Law and Justice We Will Still Live Fordham Law School Confronting Stigma and Discrimination Against 33 West 60th Street Second Floor New York, NY 10023 Women Living with HIV/AIDS in Malawi 212.636.6862 REPORT MALAWI www.leitnercenter.org THE LEITNER CENTER We Will Still Live Confronting Stigma and Discrimination Against Women Living with HIV/AIDS in Malawi Chi Mgbako Jeanmarie Fenrich Tracy E. Higgins Associate Clinical Professor of Executive Director, Leitner Center Leitner Family Professor of Law, Fordham Law School for International Law and Justice International Human Rights, Fordham Law School Supervisor, Walter Leitner Fordham Law School International Human Rights Clinic Co-Director, Leitner Center for J.D. Fordham Law School 1998 International Law and Justice J.D. Harvard Law School 2005 J.D. Harvard Law School 1990 B.A. Columbia University 2001 B.A. Princeton University 1986 Contents Introduction 2 Acknowledgments 5 Part I Background 6 Malawi’s Obligations Under International and Domestic Law 6 International Law 6 Domestic Law 8 Women’s Vulnerability to HIV/AIDS in Malawi 8 Condoms and Negotiating Power 8 Economic Dependency 10 Violence Against Women 11 Harmful Traditional Practices 12 Commercial Sex Workers 14 Girls and Young Women 16 Male Sexuality and Denial 16 Part II Stigma and Discrimination Against Women Living with HIV/AIDS in Malawi 18 Community-Level Stigma 18 Verbal Attacks 18 Social Exclusion and Fear of Casual Transmission 19 AIDS, Sex, Morality, and Death 20 Fear of Stigma as an Impediment to Status Disclosure 21 Failure to Recognize Stigma and Community Denial 24 Discrimination 25 Social Protection Programs 25 Federal Fertilizer Subsidies 25 Food-for-Work and Cash-for-Work Public Works Programs 26 Microfinance Loans 27 Property-Grabbing 28 Confronting Stigma and Discrimination: Conclusions and Recommendations 29 Community-Based Interventions 29 Efficient Targeting of Vulnerable Groups in Fertilizer Subsidy and Public Works Programs 30 Targeting HIV-Positive Individuals in Micro-Lending 31 Part III Legal Interventions 32 Lack of Access to Justice 32 Linking Health and Legal Services 32 Referral Networks 33 Integration of Legal Services Within the Health Setting 34 The Role of Paralegals 35 HIV/AIDS Anti-Discrimination Legislation 36 Legislative Recommendations 36 The Limits of Legislation 38 Awareness-Raising Campaigns and Legal Services 38 Public Interest Litigation 38 Conclusion 40 Annex I: Mission Itinerary 41 “The protection of the uninfected majority is inextricably bound to upholding the rights of people living with HIV/AIDS.” Jonathan Mann Introduction Worldwide, 60% of new HIV transmissions are to women.1 This is most evident in sub-Saharan Africa, home to three quarters of all HIV-positive women 15 years and older.2 Women and girls in Africa make up 59% of adults and 75% of young people between the ages of 15 and 24 living with HIV/AIDS.3 Internation- ally, the annual female AIDS death toll is projected to rise to almost 1.9 million by 2015, eclipsing the male death toll by over 23%.4 In Malawi, the feminization of HIV/AIDS is par- living with HIV/AIDS from discrimination. Malawi ticularly evident. Over 14% of Malawian adults aged has signed and ratified the International Covenant on 15—49 are HIV positive, one of the highest HIV Civil and Political Rights (ICCPR),9 the International prevalence rates in the world.5 Malawian women Covenant on Economic, Social, and Cultural Rights account for 57% of HIV/AIDS cases.6 In the 15—24 (ICESCR),10 the Convention on the Elimination of all age group, more than twice as many women are forms of Discrimination against Women (CEDAW),11 infected as men (14.5% vs. 6.5% respectively).7 The and the African Charter on Human and People’s average life expectancy of women has fallen to 39.6 Rights,12 which guarantee people living with HIV/ years slightly below that of Malawian men.8 AIDS freedom from discrimination. Taken together, Twenty-five years after the AIDS epidemic these instruments reflect Malawi’s obligation to con- exploded onto the world stage, HIV/AIDS-related front discrimination against women living with HIV/ stigma and discrimination continue to flourish. AIDS in Malawi, who disproportionately suffer the Women living with HIV/AIDS (WLWHA) in Malawi devastating effects of HIV/AIDS. experience verbal attacks, social isolation, and dis- This report culminates a year-long project crimination in access to social welfare resources undertaken by the Leitner Center for International such as federal fertilizer subsidies, food-for-work and Law and Justice at Fordham Law School to study the cash-for-work public works programs, and micro- impact of stigma and discrimination on the lives of credit loans. Women living with HIV/AIDS also women living with HIV/AIDS in Malawi in light of report positive experiences of empathy, support and these international commitments. In July 2007, the acceptance from their families and communities. Malawian government launched an HIV-testing cam- These reports, however, are exceptions to the more paign, distributing over 300,000 testing kits through- common treatment of people living with HIV/AIDS out the country and urging all sexually active people, (PLWHA) as “useless,” “weak” and “already dead.” especially those in rural areas, to take an HIV test.13 These conditions persist despite Malawi’s com- Despite the government’s efforts to encourage HIV mitments under international law to protect people testing, stigma blocks prevention programs.14 Fear of 1 International Labour Organization, Women, girls, HIV/AIDS and the world of work, 1, http://www.ilo.org/public/english/protection/trav/aids/publ/women-iloaids-brief.pdf [hereinafter ILO Brief]. 2 UNAIDS, Joint Programme on HIV/AIDS, 2006 Report on the Global Aids Epidemic, at 15. (2006) [hereinafter UNAIDS Report]. 3 Id. 4 ILO Brief, supra note 1 at 4. 5 See UNAIDS, Women, Girls and HIV/AIDS in Malawi Fact Sheet, available at http://womenandaids.unaids.org/documents/factsheetmalawi.pdf [hereinafter UNAIDS Fact Sheet]. 6 Id. 7 Id. 8 Malawian men have a life expectancy of 40 years. United Nations Development Programme, Human Development Report 2006: Malawi Data Sheet, § 24, available at http://hdr.undp.org/hdr2006/statistics/countries/data_sheets/cty_ds_MWI.html [hereinafter Malawi HDR Data Sheet]. 9 International Covenant on Civil and Political Rights, 999 U.N.T.S. 171 [hereinafter ICCPR]. The Covenant was adopted on December 19, 1966, and entered into force on March 23, 1976. 10 International Covenant on Economic, Social and Cultural Rights, 999 U.N.T.S. 3 [hereinafter ICESCR]. The Covenant was adopted on December 19, 1966, and entered into force on January 3, 1976. 11 Convention on the Elimination of all Forms of Discrimination Against Women, G.A. Res. 34/180, 34 U.N. GAOR Supp. (No. 46) at 193, U.N. Doc. A/34/46 (1980) [hereinafter CEDAW]. The Convention was adopted on December 18, 1979, and entered into force on September 3, 1981. 12 African [Banjul] Charter on Human and Peoples’ Rights, O.A.U. Doc. CAB/LEG/67/3 Rev.5 (1981) [hereinafter African Charter]. The Charter was adopted on June 27, 1981, and entered into force on October 21, 1986. 13 Malawi urges national AIDS test, BBC NEWS, Jul. 16, 2007. 14 UNAIDS report, supra note 2 at 8. 2 WE WILL STILL LIVE: MALAWI REPORT This report culminates a year-long project under- taken by the Leitner Center for International Law and Justice at Fordham Law School to study the impact of stigma and discrimination on the lives of women living with HIV/AIDS in Malawi. These conditions persist despite Malawi’s commitments under international law to protect people living with HIV/AIDS from discrimination. In May 2007, the Leitner Center teams traveled to Chilumba, Nkhata Bay, Salima, Mchinji, Lilongwe, Blantyre, and Mangochi to interview women living with HIV/AIDS. FORDHAM INTERNATIONAL LAW JOURNAL 3 becoming a target of HIV/AIDS-related stigma and women living with HIV/AIDS to be free from dis- discrimination discourages people from seeking test- crimination and also explores non-binding interna- ing and discussing safer sex practices which are tional documents that provide guidance to govern- often associated with HIV/AIDS and promiscuity.15 ments in confronting discrimination against PLWHA. Stigma and discrimination also impede care, support, Part I then explores the ways in which lack of sexu- and treatment programs.16 Participation in HIV/AIDS al autonomy, economic dependency, physical and support groups and attendance at anti-retroviral sexual abuse, harmful traditional practices, commer- (ARV) clinics often spark stigma and discrimination cial sex work, sexual exploitation of girls and young from community members,17 which can result in women, and conceptions of male sexuality increase PLWHA delaying care until it is too late. women’s vulnerability to HIV/AIDS in Malawi. The Fordham delegation was led by Professors Part II documents widespread community-level Chi Mgbako, Tracy Higgins, and Jeanmarie Fenrich, stigma against women living with HIV/AIDS in the and included Professor Paolo Galizzi; Mr. James Leit- form of verbal attacks; social exclusion; and the ner; eight second-year law students, Anjali Balasing- interpretation of HIV status as an indicator of sexual ham, Doug Goggin-Callahan, Carolyn Houston, immorality. Part II also explores how fear of stigma Katherine Hughes, Maria Kuriakose, Gabriel Mass, discourages women from disclosing their HIV status Grace Pickering, Felice Segura; and Evan Leitner, a and how denial of HIV/AIDS-related stigma and dis- Yale University undergraduate student. Prior to the crimination further handicaps communities. Part II mission, the delegation participated in an intense then documents the ways in which discriminatory program of study throughout the academic year, notions regarding HIV-positive peoples’ labor capac- including a seminar on human rights in Malawi and ities limits the participation of WLWHA in the feder- the intersection between gender, human rights, and al fertilizer subsidy program, public works projects, HIV/AIDS led by Professors Mgbako, Higgins, and and microfinance programs.