Decriminalising High Risk Behaviour as a Key Component of HIV Prevention and Transmission
28th July 2000, 12:00 pm

by Priti Patel

In May, Malawian President Bingu wa Mutharika pardoned Steven Monjeza and Tiwonge Chimbalanga, who were convicted for carnal knowledge against the order of nature and gross indecency between males after holding a traditional engagement ceremony at a lodge in Blantyre, Malawi.  They had been sentenced to the maximum fourteen years with hard labour by a Magistrates’ Court. 

SALC worked with the Centre for the Development of People and the Centre for Human Rights and Rehabilitation in Malawi to provide technical and monetary assistance in the legal case.  In addition, SALC and our regional partners assisted in developing and implementing an advocacy strategy, which included alerting regional and international bodies, including the African Commission, the United Nations, UNAIDS, and the Global Fund for HIV/AIDS, TB and Malaria (Global Fund) of the situation and calling on them to pressure President wa Mutharika to release Monjeza and Chimbalanga.

In response to such advocacy, UN Secretary General Ban Ki-moon, UNAIDS head Michel Sidibe, and head of the Global Fund, Michel Kazatchkine, raised their concerns regarding the conviction of Monjeza and Chimbalanga with President wa Mutharika in face-to-face meetings.  President wa Mutharika’s pardon immediately followed these meetings. 

Monjeza and Chimbalanga’s arrest was part of a broader crackdown on lesbian, gay, bisexual and transgendered (LGBT) persons throughout Africa.  Earlier this year the Ugandan Parliament introduced a bill which provided for the death penalty for any individual convicted of homosexuality.  Soon after Monjeza and Chimbalanga’s conviction, the offices of Gays and Lesbians of Zimbabwe were raided and various staff members arrested on charges of pornography and undermining the authority of the President.

The prominent role played by the heads of UNAIDS and the Global Fund in pushing for the release of Monjeza and Chimbalanga and the decriminalization not only of laws around same-sex relationships, but also regarding sex work may seem surprising.  But given the clear evidence that both men who have sex with men and sex workers are at significant risk for HIV and that decriminalizing such behavior has a positive effect on HIV prevention and treatment, the involvement of two agencies committed to ending the negative impact of HIV is vital.

UNAIDS, under Sidibe’s leadership has identified decriminalizing homosexuality and sex work as a priority area for UNAIDS.  Similarly, the Global Fund in their Sexual Orientation and Gender Initiative strategy makes clear their commitment to addressing criminalization of consensual sexual relations among same-sex individuals as part of the HIV response.  

The inextricable need to address criminalization of homosexuality and sex work as part of the HIV response was reinforced at the recent International AIDS Conference in Vienna, Austria.  At the conference, speakers as diverse as former President of Botswana Festus Mogae to former President of the United States William Clinton acknowledged the necessity of decriminalizing high risk conduct, including sodomy and sex work, as a central component of each country’s response to HIV. 

UN Secretary-General Ban Ki-moon reiterated this sentiment earlier, “urg[ing] all countries to remove punitive laws, policies and practices that hamper the AIDS response… Successful AIDS responses do not punish people; they protect them…We must ensure that AIDS responses are based on evidence, not ideology, and reach those most in need and most affected.” 

Despite that, in southern Africa, where the epidemic has hit the hardest, 9 out of 10 countries continue to criminalize consensual sex between individuals of the same sex and either directly criminalize sex work or criminalize activities associated with sex work.

Incontrovertible evidence has shown the link between criminalization of high risk groups and higher HIV rates.  Sidibe has stated that countries with laws criminalizing homosexuality have rates of HIV transmission up to 10 times more than those that have legalized same-sex relationships.  It is clear that in countries that criminalize sodomy and sex work, these high risk groups are less likely to access health care services for prevention and treatment.  Currently in Namibia, sex workers face regular police harassment and abuse due in part to the laws criminalizing the activities associated with sex work.  This police harassment makes it less likely for sex workers to approach police when clients refuse to practice safe sex or access HIV prevention when they are raped.

Furthermore, the criminalization makes it harder for health care workers to target these groups around HIV prevention and treatment.   In Malawi, prior to the arrest of Monjeza and Chimbalanga, Dr. Mary Shawa, the Principal Secretary for Nutrition, HIV and AIDS in the Malawian President’s Office recognized the need to “incorporate a human rights approach in the delivery of HIV and AIDS services to…men who have sexual intercourse with men.”  She further asked men who have sex with men to come out in the open in order to assist in Malawi’s HIV prevention efforts.  Obviously, despite the eventual pardon of Monjeza and Chimbalanga, the continued criminalization of consensual sex between men in Malawi will only drive this key population further underground.

There are many reasons that one can argue for decriminalizing consensual sex between individuals of the same sex and sex work, including arguments based on fundamental human rights.  But given the toll HIV has taken in the region—significant decline in gross domestic products due to loss of workers to AIDS, decrease in food production, increase in household dependents due to rise in orphans—it is unfathomable that governments, who recognize the importance of stemming the tide of HIV, continue to assert the need for criminalization in the face of such persuasive evidence.  

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