IV. RECOMMENDATIONS FOR ACTION
Human Rights Watch calls on all African governments to address gender inequity not only as an abuse in its own right but also as a central element of HIV/AIDS policy and programs. Resources for AIDS programs in Africa, while still grossly deficient in view of the magnitude of the problem, have become somewhat more abundant in some countries, reflecting increases in Global Fund, bilateral, and multilateral assistance. Countries that ignore human rights abuses against girls and women as they scale up their national HIV/AIDS programs should expect less success against the epidemic than those that do.
Governments need to take action in three areas. They must take measures to (1) protect women and girls from sexual and domestic violence and ensure prosecution of the perpetrators of those crimes; (2) eliminate gender inequities related to property, inheritance, divorce, and other areas related to economic dependence; and (3) ensure equal access of girls and women to health and education services. Priorities within each of those areas, derived from previous investigations by Human Rights Watch, are highlighted below. All of these measures should be regarded as important elements of national AIDS control efforts.
An urgent priority is protecting women and girls from sexual and domestic violence, including abuse in marriage and other long-term unions. In all cases, measures should be taken to ensure that improvements in statutory law are not undermined by customary or religious law or practice.
- Sexual violence laws should be amended urgently to prohibit rape in marriage. The marital rape laws in South African law may provide a useful model.252 These changes should be accompanied by sufficient resources to ensure the enforcement of the laws, training of relevant officials, and fair prosecution of perpetrators.
- All countries should enact legislation and accompanying policy to ensure prohibition of domestic violence, including physical violence that does not include rape. In addition, accompanying policy measures should support the following actions:
- establish a clear and deliberate policy to remedy domestic violence within the justice system (police, local councils, and courts);
- issue guidelines and provide training on appropriate responses to domestic violence and enforce guidelines for police intervention in cases of domestic violence, including standardized arrest policies for perpetrators and the separate categorization of domestic violence in police records;
- ensure police training in appropriate investigative methods for cases of domestic violence, including techniques for interviewing victims, and methods for protecting victims and witnesses from harassment.
- Governments should move to end harmful customary practices such as “wife inheritance” and ritual “cleansing” of widows, including by prosecuting rape and forced marriage cases and by providing education on the harmful effects of these practices.
- Governments should create centers where sexual violence can be reported with privacy and sensitivity toward survivors, staffed by trained police, medical personnel, and counselors. The experiences of the special sexual offenses courts in South Africa and the child protection units of the police department, while not perfect, have elements that may serve as useful models.
- Governments should ensure the rights and physical security of witnesses and victims in sexual violence or abuse cases tried in courts. As suggested in the Rome Statute of the International Criminal Court, these may include the possibility of in camera proceedings, withholding the victim’s identity from the general public, providing protection for the security of witnesses and victims, and providing counseling services within the courts. Judicial staff should be trained on the management of sexual violence cases, and efforts should be made to ensure adequate trained women staff members in judicial bodies.
- If national justice systems are not willing or able to prosecute widespread instances of systematic sexual violence, as in situations of armed conflict, the responsible parties should be prosecuted by the International Criminal Court as its jurisdiction allows.
- Strengthen support and treatment services for survivors of rape and other sexual violence, including provision of HIV post-exposure prophylaxis (PEP), voluntary and confidential HIV testing, testing and treatment for other sexually transmitted diseases, legal assistance, and other appropriate counseling. Personnel in facilities providing these services should be trained to address the particular needs of children and young women who survive sexual abuse. States should ensure PEP and related medical and legal services are available on an equal basis to all survivors of sexual violence. They should ensure wide dissemination of information about these services (including what they are, why they are important, and where to get them) in the general community, as well as among health care providers, police, social workers, teachers, and others likely to serve as important contact points for sexual violence survivors.
- All governments should ensure nationwide access to affordable male condoms at all times. Governments should improve distribution and access to female condoms and increase awareness of the link between sexual violence and HIV transmission and awareness of HIV reinfection.
- In all countries, ministries of education should work with other relevant ministries and national AIDS control programs to formulate and implement national programs of protection against sexual violence in schools, including strengthening of education on sexual abuse in the formal curriculum, training and binding codes of conduct for school employees, guidelines for schools detailing appropriate responses to allegations of sexual abuse by students, and procedures for disciplining offenders. Mechanisms should be established to monitor schools’ records in all these areas, and headmasters or other school directors should be held accountable for failure to respond to allegations or to follow guidelines adopted nationally.
- All governments should strengthen the collection and dissemination of comprehensive national statistics on sexual abuse and domestic violence, detailing the nature and degree of abuse, rates of prosecution and conviction, and the nature of punishment applicable, but using methods that protect the privacy of survivors of these crimes.
- Sex workers who are victims of rape and other sexual violence should have equal standing under the law to bring formal complaints, be received by the police with dignity, and expect prosecution of offenders. The high degree of vulnerability of sex workers to sexual abuse should be included in training programs mentioned above.
- Military personnel in all countries should be trained in prevention of and receive clear orders against any action that might constitute sexual abuse. Military authorities must be held accountable for full investigation of allegations of sexual abuse by their personnel and appropriate prosecution of offenders. The well-being, privacy, and dignity of complainants and witnesses must be protected in all proceedings. Civil society should be allowed to operate freely to monitor rape and other sexual abuse and assist the survivors of these crimes. In areas of armed conflict, most notably in the D.R. Congo and Burundi, international pressure is needed on all parties to the armed conflict to ensure immediate cessation of all sexual violence against women and girls. In Sierra Leone, the government must take urgent steps to ensure the release of girls and women still held as sexual slaves by former combatants, and diligence on the part of all parties is needed to ensure that the Special Court for Sierra Leone will adequately pursue cases of sexual violence and sexual slavery.
2. Gender inequity in property ownership and control, inheritance, and divorce
- All countries should amend or repeal all laws that violate women’s property rights, including the rights of widows. Countries should hold accountable those authorities who undermine statutory protection of women’s equal right to property by applying discriminatory provisions of customary law. Adequate legislation will normally include a presumption of spousal co-ownership of family property and of equal division of property upon the termination of marriage; registration of all marriages in a central registry; equal inheritance rights; a requirement of family consent for transfers of family land and housing; and a clear recognition that payment of dowry is not a legal requirement for any type of marriage. Legal changes should be accompanied by resources that ensure enforcement of the law and establishment of appropriate judicial mechanisms, such as family courts, for prosecution of offenders.
- Governments should undertake nationwide awareness campaigns to inform the public about women’s property rights, including ensuring availability of information in local languages about rights to inheritance and division of family property; writing wills; registering marriages; co-registering property; and the health risks of customary sexual practices tied to property rights, such as the risk of contracting HIV/AIDS. Governments should encourage the sharing of information across sectors, such as by including informational materials on inheritance rights in health facilities and by distributing health-related HIV/AIDS information through women’s networks and organizations as well as in police stations and court offices.
- Governments should provide training for judges, magistrates, police, and relevant local and national officials on laws relating to women’s equal property rights and their responsibility to enforce those laws and should include women’s property rights in the required curriculum of police training academies and law schools.
- Governments should ensure access of indigent women to legal assistance to pursue civil property claims. Governments and donors should support the activities of nongovernmental organizations that provide legal services to women whose property rights have been violated.
- Divorce laws should be amended to reflect the presumption of spousal co-ownership of family property and of equal division of property upon the termination of marriage. They should also reflect equality in the ability to claim wrongful conduct as grounds for divorce. Most importantly, governments must take steps to ensure that provisions of divorce law that recognize women’s equality under the law are not undermined by customary law and practice. Authorities failing to respect this principle should be brought to account.
3. Unequal access to social services and information
Ensuring equal access to education for girls is the key to protecting them from many of the abuses highlighted in this report and ensuring their access to life-saving information. The Convention on the Rights of the Child guarantees all children free primary education, but this remains an elusive goal in many African countries, especially for girls. Most African governments have made commitments and formulated plans of action around the “education for all” goals established at the education summit in Dakar, Senegal in June 2000, but these have not been backed up by resources and political commitment. In many countries, girls and women face discriminatory barriers in access to health services and information, as noted above. Social service policies and supporting legislation are an essential area of action for redressing gender-based injustices that contribute to risk of HIV/AIDS. In particular:
- Governments should make equal access to education for girls an urgent priority and should understand it as a central element of fighting HIV/AIDS along with measures to ensure freedom from sexual and gender-related abuse in schools. UNICEF has noted that real progress will not be made in this area until governments and donors make a priority of and allocate more resources to education, including to schools in marginalized rural and urban slum areas and for better training and compensation of teachers in all areas. Until that happens, measures should be taken at least to ensure that girls are not discriminated against in education, including by ensuring equal access to school meal programs that may help children stay in school, stipends for secondary school girls who would otherwise be under pressure to become breadwinners, and legislation that prohibits marriage for girls under age eighteen. Public awareness of the importance of girls’ education, including its link to lower risk of HIV/AIDS, should be promoted.
- Governments should amend or repeal all policies and laws that pose discriminatory barriers to women and girls in access to health services and information. Women should not be required to provide evidence of their husbands’ permission for reproductive health services.
- Governments should provide training to health care providers to ensure that girls and women receive appropriate, discreet, and nonstigmatizing counseling and information on HIV/AIDS and reproductive health concerns. Health sector reform measures should make nondiscriminatory access to services a central part of their activities.
252 See South Africa, Domestic Violence Act, Act No. 116 of 1998, sec. 1 (defining complainant to include “any person who is or has been in a domestic relationship with a respondent and who is or has been subjected or allegedly subjected to an act of domestic violence” and “domestic relationship” to include marriage recognized by any law, custom or religion, and relationships “in the nature of marriage,” including same-sex relationships.