Summary

In December 2010, police arrested Saidi W., an 18-year-old man in Dar es Salaam, Tanzania, who identifies as gay. A police officer forced him at gunpoint to call five gay friends and tell them to meet him at a bar. When they arrived, the police arrested all of them, undressed them at the bar, beat them, and took them to Central Police Station. There the men were repeatedly raped by fellow detainees. When Saidi and his friends asked the police for help, police said, “This is what you want.” Saidi’s mother had to pay 400,000 Tanzania shillings (Tsh) (about US$250) as a bribe to release her son and his friends.

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In 2012, Mwamini K., a female sex worker, was raped at gunpoint by a client who got angry when she asked that he use a condom. Mistrustful of police and hospitals, she was afraid to seek help: in 2011, when she was in the street in Dar es Salaam soliciting clients, three police officers caught her, called her a “dog” and a “pig,” and beat her for about 10 minutes before leaving her in the street. On that occasion, Mwamini went to the hospital for treatment, but told hospital workers that she had fallen down the stairs, afraid that she would be denied services if she told the truth about how she was beaten. She had also had problems with hospitals in the past: at one hospital, staff refused to treat her when she told them she had been infected with a sexually transmitted infection (STI) because of her sex work. 

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In December 2011, Dar es Salaam police arrested and tortured Suleiman R., who uses heroin, in an effort to extract a confession for a robbery he said he had not committed. They struck him with iron bars and burned his arm with a clothes iron. Police held Suleiman overnight and made his mother pay a Tsh 200,000 bribe ($125) to have him released the next day. Upon release, Suleiman asked the police to provide him with Police Form Number 3 (PF3), which public hospitals require before treating victims of assault. The police refused, saying, “If we give you a PF3, you will accuse the police in court.” Suleiman was forced to seek expensive treatment at a private hospital.

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Saidi W., Mwamini K., and Suleiman R. have at least two things in common. First, they all belong to what public health specialists seeking to address the HIV/AIDS epidemic (see Glossary) refer to as “most at-risk populations” (MARPs) or “key populations.” While HIV prevalence among the general population has decreased in Tanzania, available data suggest it has increased among key populations, including men who have sex with men (MSM), sex workers, and people who inject drugs.

They also share another dubious distinction: Tanzanian law considers them all to be criminals. This criminal status drives them underground, making them easy targets for human rights violations by law enforcement officials; legitimizing stigma among the broader public; and giving government bodies an excuse to devote inadequate attention to key populations.

This report results from research conducted between May 2012 and April 2013 by Human Rights Watch and Wake Up and Step Forward Network (WASO), a Dar es Salaam-based network of groups that represent men who have sex with men. It documents human rights violations experienced by sex workers, people who use drugs, and lesbian, gay, bisexual, transgender, and intersex people (LGBTI), including MSM. It also exposes the very troubling situation of sexual exploitation of children in sex work. The report highlights two main categories of human rights violations: those for which law enforcement officials bear primary responsibility, and those within the health sector.

Violations by the Police

The research documents dozens of grave human rightsviolations by the police, including torture and rape, assault, arbitrary arrest, and extortion, as well as refusal to accept complaints from members of vulnerable groups that have been victims of crime. In one especially horrific case, police arrested John Elias, a heroin user, in a drug bust in the Kigamboni area of Dar es Salaam in February 18, 2010. At the police post, a police officer injected both of Elias’s eyes with a syringe full of liquid. A week later, when Elias went to the hospital, he discovered the liquid was acid. Today, Elias has gaping holes where his eyes should be.

Semi-official security forces, most notably the Sungu Sungu, a vigilante group, are also implicated in violence against at-risk populations, “policing” their behavior, often through the use of force. Their abuses include an attack on Mwanahamisi K. near the railroad in Tandika, Dar es Salaam, in May 2012, where she had gone to smoke heroin. She told Human Rights Watch: “Six of them forced me to have sex with them…. They didn’t use condoms. The rape lasted one or two hours. I was with my child. The baby boy was lying on the ground to the side while I was being raped…. After raping me, they told me “Don’t move around at night.”

Further reinforcing the second-class status of vulnerable groups, police sometimes refuse to accept complaints when sex workers, people who use drugs, or LGBTI people are victims of crime, whether by the security forces themselves or by private citizens. As a public health worker in Mwanza explained, “Sex workers do not have a place to speak against injustices done to them, and the police can take advantage of them if they go and report. If they go to the police, the police just become their customers for that night.”

All of these human rights violations reinforce stigma and contribute to an environment in which men who have sex with men, sex workers, and people who inject drugs become increasingly marginalized and distrustful of the state, undermining public health initiatives that depend on cooperation and partnership between the government and populations that are most at risk of HIV infection.

Among all three key populations, our research suggests that those who are the most vulnerable to police abuse are from lower socioeconomic classes. In all cases highlighted here, state actors and their proxies operate with impunity.

Violationswithin the Health Sector

Human rights violationswithin the health sector include denial of services, verbal harassment and abuse, and violations of confidentiality. Such incidents include a 2011 case in Dar es Salaam’s Temeke hospital when staff refused to use anesthesia when stitching up a person who uses drugs after he was attacked by a mob, and an incident in March 2012 when a doctor at Zanzibar’s Mnazi Mmoja Hospital refused to treat a gay man for gonorrhea, declaring, “You already have sex with men, now you come here to bring us problems. Go away.”

The report also documents onerous requirements in the health sector that, while not intended to discriminate, pose particular obstacles to access to health care for men who have sex with men, sex workers, and people who use drugs. For example, Jamila H., a sex worker, was gang-raped in February 2012 and went to a public hospital, but she was told she needed the police to fill out a form about the assault before she could receive treatment. “They said I should go to the police, but I couldn’t because I was a sex worker,” she said. Two of her rapists had not used condoms, but without access to hospital services, she did not get tested for HIV. Halima Y., also a sex worker, said health workers at Mwananyamala Hospital in Dar es Salaam refused to treat her for an STI because she could not comply with a requirement to bring in her sexual partner for testing and treatment.

Discriminatory treatment, combined with the absence of clear messages from the government that no one will be arrested or persecuted for seeking services, leads people to stay away from health services. When police or semi-official vigilante groups mistreat or arbitrarily arrest members of any marginalized group, or when health workers deny them services, their actions also violate clear international human rights principles, and also often violate Tanzanian law.

Most At-Risk Populations (MARPs)/Key Populations

The Tanzanian Ministry of Health and Social Welfare, like many health ministries around the world, has recognized that men who have sex with men (MSM), sex workers, and people who inject drugs are essential partners in the fight against HIV.

Tanzania’s Second National Multi-sectoral Strategic Framework on HIV and AIDS, 2008-2012, recognized that stigma inhibits access to services. (An updated strategic framework for 2013 to 2017 was being drafted as of this writing.) The Strategic Framework set forth several strategies aimed at reducing the risk of infection among the “most vulnerable,” including men who have sex with men, sex workers, and people who inject drugs. These included three particularly critical strategies. The framework pledged, in its own words:

• To promote increased access to HIV preventive information and services (IEC [Information, Education and Communication], condom access, peer education, friendly testing and counseling and STIs services) for the vulnerable populations.
• To build partnerships between government and CSOs [civil society organizations] and other agencies working with vulnerable populations to advocate for their empowerment and protection and stimulate documentation and exchange of experiences.
• To acknowledge the vulnerability of sex workers and men who have sex with men and advocate for their access to HIV preventive information and services and for decriminalization of their activities. (The Kiswahili version of the Strategic Framework uses slightly different language, discussed below.)

In Zanzibar—a semi-autonomous territory that maintains a political union with Tanzania, but has its own parliament and president—the National HIV Strategic Plan II (2011-1016) does not specifically call for decriminalizing sex work or consensual sex amongst men, but it recommends a national advocacy campaign promoting tolerance toward key populations. It also calls for other progressive measures, including needle exchange for people who inject drugs and for condoms and water-based lubricant to be distributed to men who have sex with men.

Unfortunately, existing law, combined with abusive practices by both law enforcement and health officials, undermines all these strategies, both in the mainland and in Zanzibar.

Criminals under the Law

Tanzanian law criminalizes consensual sexual conduct between adult males, with a penalty of 30 years to life in prison, one of the most severe punishments for same-sex intimacy in the world. Zanzibar has slightly different laws but criminalizes both male homosexual conduct and lesbianism. In both regions, prosecutions for same-sex conduct have not taken place in recent years, but the law—and the abusive way that it is often enforced—keeps lesbian, gay, bisexual, transgender, and intersex (LGBTI) people marginalized. It also makes them more vulnerable to police blackmail and extortion as they seek to maintain their secret status.

Tanzanian law also criminalizes sex work: loitering for the purposes of prostitution carries a three-month prison penalty on the mainland, and providing sex in exchange for money carries a three-year penalty in Zanzibar.

Personal use of any narcotic drug or psychotropic substance is punishable by 10 years in prison on the mainland, a fine of Tsh 1 million (about $614), or both. In Zanzibar, it is punishable by up to seven years in prison.

Children

The use, offer, procurement, or provision of a child under 18 years old for sex work is a form of commercial sexual exploitation. This is prohibited under both Tanzanian and international law. Children who engage in sex work, or are otherwise commercially sexually exploited, should not be prosecuted or penalized for having been party to illegal sex work, but should receive appropriate assistance. Those who commit crimes of sexual exploitation should be prosecuted. However, commercial sexual exploitation of children—especially of girls—is frequent in Tanzania and usually goes unpunished. Moreover, children engaged in sex work with whom we spoke are frequently victims of police abuse and have no remedy against violence by private actors. Some of the most serious human rights violations we documented involved police raping children involved in sex work. For instance, Rosemary I., a child engaged in sex work in Mbeya, told us that police had raped her “about seven times,” the first time when she was just 12. According to the US State Department, no one was prosecuted in Tanzania in 2012 for sexual exploitation of children.

Limited Progress

Some progress has been achieved under the existing Strategic Framework and Strategic Plan, with a few state hospitals and some nongovernmental organizations (NGOs) throughout the country providing “MARPs-friendly” services. The government has also, through its health agencies, supported several outreach programs implemented by local and international organizations that target key populations. However, health workers continue to discriminate against patients based on their presumed sexual orientation, engagement in sex work, or drug use, compromising their right to the highest attainable standard of health.

The conduct of Tanzanian state agents systematically undermines the framework’s strategies, including its pledge to “promote increased access to HIV preventive information and services,” including “friendly testing,” to vulnerable groups. Many people interviewed for this report said that discriminatory treatment still poses a serious obstacle to testing and treatment. When it comes to access to information, marginalized groups, particularly men who have sex with men, are often ignored by public outreach campaigns around HIV/AIDS.

The Strategic Framework pledges to “build partnerships between government and CSOs [civil society organizations] and other agencies working with vulnerable populations to advocate for their empowerment and protection.” The government has, through its health agencies, supported several outreach programs implemented by CSOs and other non-governmental organizations (NGOs) targeting key populations. But the best representatives of vulnerable populations’ needs are membership organizations composed of those populations themselves – and in a context where men who have sex with men, sex workers, and people who use drugs face a constant threat of violence at the hands of police and other state actors, including torture and rape, it is difficult to speak of a “partnership” between these groups and the government.

MSM and sex worker activists told us that they were not aware of any efforts by government health agencies to advocate for decriminalization of same-sex conduct or sex work since the Strategic Framework was published, despite its commitment to “acknowledge the vulnerability of sex workers and men who have sex with men and advocate for their access to HIV preventive information and services and for decriminalization of their activities.” In early 2013, a government health official informed Human Rights Watch that his agency was beginning to reach out to police, with hopes of initiating discussions on decriminalization. But no further concrete advocacy initiatives – which would ultimately have to include lawmakers, not just police – had been undertaken. This may be due, in part, to some public officials’ lack of awareness of the Strategic Framework’s content in English: Human Rights Watch discovered that where the English version calls for “decriminalization of their activities,” the Kiswahili version only calls for “not scorning their activities” (kutokudharau shughuli zao).

A Holistic, Rights-Based Approach to HIV/AIDS

If Tanzania is truly committed to addressing HIV/AIDS among key populations, it should do so holistically. Institutions in the public eye, such as police and the health sector, should provide protection and treatment to at-risk groups, modeling positive behavior to other Tanzanians, rather than setting an example of hatred and bigotry.

Tanzanian laws and practices toward men who have sex with men, sex workers, and people who use drugs do not only prevent full realization of Tanzania’s commitment to stamp out HIV, they also violate international law. The criminalization of voluntary, consensual sexual relations amongadults is incompatible with respect for a number of internationally recognized human rights, including the rights to privacy and non-discrimination. Criminalization of the voluntary, commercial exchange of sexual services, as in the case of consensual sex work by adults, is also incompatible with the right to privacy, including personal autonomy.  Human rights violations also often accompany enforcement of both sets of criminal laws, and enforcement of criminal laws against drug use and possession for personal use.

Human Rights Watch and WASO call on Tanzania to uphold human rights for all people, including marginalized groups. The Criminal Code should reflect principles of equality, rather than cementing discrimination into law. State agents’ actions should consistently reflect an understanding that LGBTI people (including men who have sex with men), sex workers, and people who use drugs are entitled to the full spectrum of rights enjoyed by other Tanzanians.

There is a clear link between human rights and the public health imperative to reduce HIV infections and treat existing ones. Ending discrimination and abuse against key populations is both a public health imperative, and a question of basic human dignity.