Policy Profile, HIV Prevention and Women's Rights: Working for One Means Working for Both

Confidentiality, privacy, nondiscrimination, the right to know--these are some of the pressing legal and policy issues that HIV/AIDS has put at center stage in recent years. But for women in developing countries, more fundamental legal reform is also necessary to fight the epidemic. Women who lack basic rights--the right to control their own bodies, the right to choose their own partners, the right to own and inherit property--are deeply vulnerable to infection. A Kenyan lawyer and feminist examines how growing social pressures from the HIV/AIDS epidemic in her country and throughout Africa are forcing policy makers to reconsider long-sought reform of laws that discriminate against women.

Africa, and African women in particular, have been hard hit by the AIDS epidemic. More than 7 million women in sub-Saharan Africa have become infected with HIV, and the virus continues to spread.

Many Kenyans are HIV-positive. According to World Health Organization statistics, one in 18 adults in Kenya is infected--a rate that soars as high as one in nine in urban areas. Surveys of pregnant women in some regions of the country show a seroprevalence rate as high as 30 percent.

In Kenya, throughout Africa and around the world, the threat to women--including married women and young girls who do not fit into traditional "high-risk" groups--is rising dramatically. By the end of this century, researchers estimate that the global ratio of male infections to female infections will rise to 1:1 or even higher, a sharp contrast to only a few years ago, when that ratio stood at more than 10:1. In many parts of Africa, the transmission rate for women is already higher than for men.

This shift has come about not because women are taking greater risks in their sexual lives, but because of social and cultural inequality, economic marginality, restricted access to power in public and private life, and legal systems that discriminate against women and deprive them of basic rights. Women also suffer from greater biological vulnerability to HIV infection.

Gender inequity of all kinds increases women's vulnerability to HIV infection in three closely linked ways. First, lack of economic opportunity for women, enshrined in social-cultural practices and reinforced by the legal system, leads to dependence on men, whose interests do not always coincide with women's need to protect themselves. Second, depriving women of the right to autonomy and control over their own bodies also deprives them of their right to refuse sex and to demand safer sex practices by men. Third, some cultural practices, many either protected by or ignored by the law, are directly and immediately dangerous and can lead to HIV infection. The solution is to empower women through legal reform to take advantage of economic opportunity, to determine when and with whom they will have sex, and to refuse cultural practices that endanger them.

These are basic rights that most men enjoy without question, and the International Federation of Women Lawyers (FIDA-K) and other women's organizations in Kenya have been fighting to gain them since long before the AIDS epidemic hit the country. While the threat of HIV builds, there is a renewed drive for legal reform that benefits women in many African nations, as communities and governments feel increasing pressure to assist infected women and orphans who have been abandoned with no means of support.

In 1993, the Kenyan government created a special task force to examine the impact of standing laws on women. This body, headed by Judge Effie Owuor, has sought input from all women's organizations in the country in its review of the legal system. FIDA-K and other groups have submitted recommendations, but a final report from the task force has not yet been issued.

Domestic Violence

Violence against women by their male partners is widely condoned by many African societies, including Kenya, where the belief that a husband may chastise his wife by beating her is deeply embedded. Among the Luhya community in western Kenya, wife beating is even considered a sign of love, which women have been socialized to accept and sometimes encourage. Kenyan law interprets wife beating as a domestic and, therefore, private matter, and law enforcement agencies avoid "interfering" in a family conflict.

Women who are repeatedly beaten or threatened with beating live in fear in their own homes. They are not in a position to negotiate for safer sex or to tell their partners they do not wish to engage in sexual intercourse, and are thus vulnerable to sexual abuse and possible infection with HIV or other sexually transmitted diseases (STDs).

FIDA-K has identified domestic violence as one of the major obstacles to tackle in ending the subordination of women in Kenya. In 1994, FIDA-K conducted gender sensitization workshops for law enforcement officers around the country, with a focus on domestic violence. Linking the spread of HIV/AIDS with violence in the home was a true eye-opener for workshop participants, many of whom, as a result, committed themselves to protecting women who report domestic violence. FIDA-K and law enforcement agencies later co-sponsored a design competition for posters to educate the public about domestic violence. The three winning entries now hang in police stations around the country, and the success of this effort has built a spirit of cooperation between our organization and the police that we hope will continue.

An important outcome of this joint campaign has been the creation of formal recommendations to amend Kenya's penal code to include domestic violence as a separate offense and to promote privacy and confidentiality at police stations for women who take violence complaints to the authorities. Legislative action is needed to turn these recommendations into law.

Marital Rape

In 1994, the office of the Attorney General in Kenya, prompted by FIDA-K, initiated debate among national policymakers on whether marital rape should be recognized as an offense punishable by law. But many male politicians and religious leaders continue to reject the concept that intercourse between husband and wife can be coercive and that women should be able to say "no" to their husbands. Thus, little legislative progress has been made.

This failure to recognize the right of a married woman to refuse intercourse heightens her vulnerability to HIV infection if her partner is involved in extramarital affairs. Women's organizations in Kenya continue to lobby for legislative recognition of this crime against women.

The battle around this issue illustrates one of the handicaps that women's organizations face in Kenya and elsewhere in Africa. Although women make up about 55 percent of Kenya's population of 25 million, they are woefully underrepresented in government, commerce and other positions of power. There are six female legislators in Kenya's 200-seat parliament and only one woman minister, the first ever appointed to the cabinet. Lobbying for support for women's issues can be an uphill battle when many legislators remain unconvinced of the need to empower and not paternalistically "protect" women.

Wife Inheritance

Some tribes in Kenya practice wife inheritance, whereby widows remarry within the deceased husband's family or ethnic community, often to a man who already has wives or other sexual partners. This has been justified as economic security for women who lose their husbands' income or property, but it deprives women of the right to choose their own lives after widowhood and can coerce women into sexual relations that may be dangerous for them.

This deeply rooted tradition takes different forms in different regions, sometimes allowing for some level of consent by the woman. Among the Luo in western Kenya, widows must submit to wife inheritance, but may choose their male "inheritor" from their husbands' ethnic group. Within certain communities in Zambia and elsewhere, some widows are forced to have unprotected sex with a brother-in-law--not necessarily leading to remarriage--in the belief that the act will cleanse them of their dead husbands' spirit.

This cultural barrier to the basic human right to choose one's partners raises vulnerability to HIV. If a woman defies the custom, she may be shunned or even expelled, and many African women prefer to risk infection than to be rejected by family and community.

Pressure to end wife inheritance is growing in regions of Kenya where HIV transmission rates are especially high. FIDA-K's proposal to the national task force reviewing laws relating to women calls for eradication of the practice altogether. Others propose allowing it to provide security for widows and their children, but to prohibit the requirement that widows be forced into sexual relations with their new partners.

Property Issues

Patriarchial traditions keep many Kenyan women from owning or inheriting property and thus attaining some level of economic independence from men. While national law does not expressly forbid property ownership by women, cultural practice largely eliminates for women the main method by which Kenyans come to own property: inheritance. Parents rarely bequeath property to daughters, and those who do are looked upon with scorn. Women who attempt to buy land, businesses or other major assets find that banks will not lend them money unless a husband or other male family member co-signs the loan. This is a prime example of how gender discrimination within the culture works its way into the financial structure, perpetuating women's economic dependence on men and ultimately limiting their ability to control their personal and sexual lives.

In many Kenyan communities and throughout much of sub-Saharan Africa, a man's property traditionally returns to his own family when he dies. Too often in recent years, a tragic and ironic story has been repeated. A woman caring for a husband ill with AIDS finds herself impoverished when he dies because neither has been able to earn an income. His family takes her house, garden acreage or other property and possessions--sometimes down to the cooking pots--leaving her homeless and destitute, just as she herself becomes ill from the infection passed on to her by her husband. The husband's relatives may also decide to take her children from her--the woman can usually do little legally to stop them--but often the children also become victims of poverty and homelessness. Once again, cultural practices that impoverish women can also lead them to infection, because widows with few means to support themselves may turn to commercial sex work to keep themselves and their children alive.

The issue of inheritance is a difficult one. Even though they or their female relatives could be left impoverished by traditional inheritance practices, many poor women in Kenya support the status quo because they do not want to "lose" the wealth of deceased sons. Yet, like FIDA-K, most organizations in Kenya that support legal reform for women call for an end to the complex web of tradition and law that keeps most women from owning and inheriting property.

Elsewhere in Africa, the Zambian organization Women in the Law and Development in Africa (WILDAF) is addressing this issue by translating inheritance laws into native languages and training paralegals to teach Zambian women about their rights. In South Africa, organizations that help HIV-positive women write wills are empowering them to pass on as much of the family's belongings and wealth as possible to their orphaned children. And in Tanzania, some measure of true legal reform was won in recent years: legislation entitling widows to 50 percent of their husbands' property.

Female Genital Mutilation (FGM)

Kenyan women are taught that sexual pleasure is for men alone, and that showing signs of pleasure in lovemaking brands one as having "low" morals. Among the Maasai, Kikuyu, Meru and Kiisi tribes, the practice of female genital mutilation--excision of the clitoris and/or labia, usually done to infants or young girls--has long been justified on the grounds that it reduces the libido and sexual pleasure. A horrifying violation of human rights, this tradition promotes the belief that the bodies of women and girls are ultimately the property of men, and that women's right to their own sexuality can be "excised" from them, just as parts of their anatomy are cut away.

The operation is usually performed without anesthesia, with unsterile instruments that can harbor bacteria and the HIV virus. Certain genital mutilation procedures can lead to a lifetime of pain from irritation, tearing during intercourse and birth, infection and scar tissue growth. Women who have undergone such mutilation frequently suffer from bleeding vaginal abrasions, which may make them more vulnerable to HIV transmission during intercourse with an infected man. This cruel practice can also cripple women emotionally, sexually and psychologically throughout their lives.

Throughout Africa, many women's organizations have initiated efforts to educate and lobby against FGM. Because this ancient practice is so deep-rooted, progress can be slow. But in Ghana last year, the Ghanaian Association on Women's Welfare (GAWW) succeeded in its campaign to amend the nation's 1960 Criminal Code to include FGM as an offense punishable by up to three years in prison. GAWW, recognizing that making FGM illegal is not enough to end the practice, is also continuing a national campaign to educate Ghanaians about the practice.

FIDA-K and many other women's rights organizations in Kenya support efforts to enact and enforce laws that prohibit female genital mutilation. Kenya's penal code includes the crime of "grievous bodily harm," which we believe should include FGM, but few cases have been tried to test this interpretation because the police are reluctant to prosecute. FIDA-K's community rights education project is working hard to educate and encourage law enforcement agencies to understand FGM as a prosecutable offense. For the moment, educational campaigns aggressively promoted by such grassroots organizations as Maendeleo Ya Wanawake (Advancement of Women) remain the focus of the campaign to end FGM, so that when the laws do change, Kenyans will be ready to give up this cruel tradition rather than practice it underground.

Protecting Young Women and Girls

In Kenya, underage girls are frequently married off against their will to older men seeking sex partners uninfected by HIV. The poor families from which many of these girls come sometimes benefit financially, while the girl children lose opportunities to continue their education and their right to choose when and whom to marry. There is a risk that some of these men may be HIV-positive and could pass the infection on to the next generation. Practices like these contribute to the high rates of infection in Kenya among girls and young women 15 to 24 years old, an age group with more than twice the number of females infected as males.

Underage marriage is one of the reasons why girls are taken out of school in Kenya and elsewhere in Africa at higher rates than boys. Family poverty is another reason: parents or guardians may withdraw girls before they graduate to save money for their brothers' school fees. The low level of literacy among Kenyan women is a tragic result. Only 51 percent of Kenyans are literate, and only 15 percent of this population is female. Education and literacy are critical tools for self-esteem, economic empowerment and, ultimately, effective HIV prevention. Poorly educated women and girls are too often victimized by misinformation or lack of information about the epidemic, safer sex options and legal rights.

In neighboring Uganda, the government is taking a proactive approach to protecting girls. Village committees are empowered to enforce regulations forbidding premarital sex, sexual abuse of minors and underage drinking, and the Ugandan Army has created a new code of conduct for its soldiers, forbidding sexual relations with unmarried girls.

Defending Sex Workers

Women who must resort to commercial sex work for economic survival are especially vulnerable to HIV infection. The criminalization of prostitution in Kenya means that female sex workers cannot report abuse by their clients. Few female sex workers feel they can afford to insist on condom use and other safer sex practices for fear of losing customers, their only source of income.

Women's rights organizations in Kenya insist that the basic human rights of female sex workers --including the right to remain uninfected by HIV--be protected by law enforcement agencies, which often treat such women as if they had no rights at all. Some groups have called for decriminalization of commercial sex work, arguing that this will put sex workers in a better position to negotiate for safer sex and to demand an end to abuse. Again, economic opportunities are critical, to give sex workers the ability to leave their dangerous line of work and support themselves and their children in more productive ways.

Empowerment and Legal Reform

National HIV prevention programs and politicians who condemn abuse are not enough to protect the women of Kenya from a fatal epidemic that shows few signs of abating. Legislative and policy reform that drives deep into the heart of women's economic and social inequality must be enacted, and Kenya's leaders must have the political will to confront entrenched social-cultural norms that oppress women and leave them profoundly vulnerable to HIV/AIDS.

Despite what at times seems like an uphill struggle for change in many parts of the continent, women in Africa and around the world now have a new policy model for female empowerment and legislative action against the epidemic. The Platform for Action adopted at the U.N. Fourth World Conference on Women in Beijing this past September calls for all governments to review and amend laws and enact legislation against social-cultural practices that may contribute to women's susceptibility to HIV infection.

As a member of the United Nations and a signatory to all of the U.N.'s international policy documents, Kenya can be a leader in Africa by aggressively pursuing legal reforms that enable women to protect themselves. Women in Kenya and throughout Africa must unite politically to demand that such action be taken, to save our own lives and the lives of the next generation.

-- Jane Kiragu, International Federation of Women Lawyers, Kenya (FIDA-K)

Jane Kiragu is a lawyer and a council member of the Kenyan branch of the International Federation of Women Lawyers (FIDA), which has 75 branches throughout the world. She is the convenor of FIDA-K's Women's Health and Reproductive Rights Subcommittee and is currently conducting research on female genital mutilation in Kenya.