Below is a statement condemning the continuous harassment of sex workers in Malawi. We are extremely disturbed by the on-going criminalisation and persecution of key populations in sub-Saharan Africa and call on the Malawian government to show bold leadership in addressing this challenge by (amongst others) revising legislation that criminalises sex work and other practices.

We encourage you to add your voice to this cause by sending an email with your name, country and/or organisation to Alan Msosa at alan@arasa.info by Friday, 6 November.

PROTECTION OF HUMAN RIGHTS OF SEX WORKERS IS KEY TO THE HIV RESPONSE IN MALAWI

We, a coalition of individuals and non-governmental organisations working to promote a human rights-based response to HIV and AIDS in southern Africa and around the world are alarmed by the recent reports of harassment, abuse, arrest and mandatory HIV testing of sex workers without their informed consent in Malawi.

An article in the Daily Times of 1 October, 2009 reported that the Malawi Police Service arrested 14 sex workers in Mwanza District. The women were subjected to mandatory HIV tests, following which their HIV status was disclosed to the public in the Daily Times article. Superintendent Davie Chingwalu, Malawi Police Service spokesperson for Southern Region, stated that the sex workers were deliberately trading in sex while having a sexually transmitted disease and were prosecuted under section 192 of the Penal Code. The women were each fined 1,000.00 Malawi Kwacha.

We are extremely concerned about this event and other reports, including an article in the Nyasa Times of 14 October, 2009 titled: ‘Sex workers sentenced to one month community work’, which indicate that the harassment of sex workers is wide-spread in Malawi.

Mandatory HIV testing violates a number of human rights provisions contained in the constitution of Malawi and several international human rights instruments. The Malawi HIV/AIDS Policy states that voluntary testing and counselling shall only be carried out with the informed consent of the person seeking testing, who is provided with adequate information about the nature of an HIV test, including the potential consequences of a positive and negative result, in order to make an informed decision as to whether to take the test or not. Government shall only permit HIV testing without consent when sample screening of pregnant women through anonymous unlinked testing for surveillance is being done or when testing blood, body fluids and other tissue for transfusion and transplants. The policy elaborates that the results of any HIV test shall not be disclosed to a third party without the consent of the person seeking testing, except as may be provided in the HIV/AIDS Policy. The actions by Malawian police authorities are clearly out of line from this policy and include rights violations such as the right to privacy, right to dignity and the right to equality amongst others.

The policy identifies groups suffering from discrimination, which makes them vulnerable to HIV to include women, young girls, orphans, widows and widowers, children and young people, the poor, prisoners, mobile populations, persons engaged in same-sex relationships and people with disabilities and people living with HIV and sex workers. It states that discrimination is not only inherently wrong but also creates and sustains conditions leading to vulnerability to HIV infection and to receiving inadequate treatment, care and support once infected.

This abuse of sex workers is also contrary to provisions in the Malawi HIV/AIDS Policy, which note that an effective response to the epidemic requires that the rights to equality before the law and freedom from discrimination are respected, protected and fulfilled - in particular in gender relations between women and men and girls and boys.

A concerted effort should be made by the Malawi government to operationalise the Malawi HIV/AIDS Policy and to revise legislation to decriminalise sex work and other practices that render key populations such as men who have sex with men more vulnerable to HIV infection.

Laws that criminalise sex work or sex between men create barriers to an effective response to HIV and AIDS. These laws make it extremely difficult for sex workers or men who have sex with men to access HIV prevention, treatment and care services. They also expose members of key populations to abuse as the illegal nature of their behaviour makes it difficult for them to seek protection of the law or redress. Laws that criminalise sex work and sex between men thus render sex workers and men who have sex with men more vulnerable to HIV infection. Regardless of any moralistic objections that may be held by the government towards these realities, they are undeniable, and denying or persecuting the people concerned does not change the reality, although it prevents us from dealing with it in a constructive manner.

We thus urge the government of Malawi to:

· decriminalise sex work and sex between men through the repeal of these laws;

· to ensure that everyone has access to HIV prevention, treatment and care services, regardless of their sexual behaviour or orientation;

· to provide the necessary training to members of its police force, health care workers and other service providers on the importance of respect for and the protection of the human rights of all in an effective response to HIV and AIDS in Malawi;

· to address the societal and structural constructs that render women and girls more vulnerable to HIV;

· to ensure that people living with HIV and key populations at higher risk of HIV exposure effectively participate in a meaningful manner in the design, implementation and monitoring of HIV prevention, treatment and care programmes. In this regard we are encouraged by the statements of Ms. Mary Shawa, Principal Secretary in the Department of Nutrition and HIV/AIDS in the President’s Office, who recently acknowledged that it is crucial to include key populations such as sex workers and men who have sex with men in the HIV and AIDS response in Malawi. Such bold leadership and respect for human rights and for the need for adaptive public health responses is commendable and essential in a context where there is a lack of a protective policy and legal frameworks and where vulnerable groups are socially alienated.

· to take disciplinary action against members of the police force who subject sex workers to compulsory HIV testing and arbitrary detentions;

· to ensure that there is continued multi-sectoral dialogue on rights of key populations at higher risk of HIV infection; and

· the inclusion of sex workers in consultative structures that make decisions about sex worker issues.

Signed: