In its work on HIV/AIDS around the world, Human Rights Watch has encountered numerous women living with HIV/AIDS who said in their lifetimes they had had sex only with their partner in a long-term marital or nonmarital union. The tragedy of high HIV transmission risk among monogamous women has begun to gain attention in Africa but continues to go unnoticed among policymakers. That African men in long-term unions face little or no social constraint in engaging in sex outside those unions is well documented. Decision-making on when and how sex will be had in long-term unions—to say nothing of decisions related to conception and contraception—is too rarely within women’s control in African communities. Combined with economic dependence on men, this lack of sexual autonomy puts women in long-term unions at grave risk.
The degree to which men resort to violence to maintain control over sex in long-term unions is little understood and woefully neglected as a research question. Human Rights Watch recently investigated this category of abuses in detail in Uganda and concluded that even in the country most frequently cited as an AIDS “success story,” women are becoming infected with HIV in large numbers because the state is failing to protect them from domestic violence.
For many women in Uganda, as in much of Africa and the world, domestic violence is not an isolated and aberrant act, but arises from and forms part of the context of their lives. Too many African women confront an environment that sustains unequal power relations, contend with persistent social pressure to tolerate violence, and are routinely subjected to coercion and emotional abuse from husbands or partners and members of their extended family. Many of the women interviewed by Human Rights Watch in Uganda had been raped in marriage, were unable to protect themselves from infection, and were prevented from utilizing HIV/AIDS services because their husbands physically attacked, threatened, and intimidated them, and did so with impunity. Sules K., a widow in Tororo, Uganda, described her situation:
Human Rights Watch’s investigation showed that Ugandan women become vulnerable to HIV infection as a result of domestic violence in complex and intertwined ways. Most women interviewed saw domestic violence as innate to marriage, and viewed sex with their husbands as a marital obligation. Traditional attitudes that dictate that women are the physical property of their husbands deprive them of any authority over marital sexual relations. Customs such as the payment of “bride price” (payment made by a man to the family of a woman he wishes to marry), whereby a man essentially purchases his wife’s sexual favors and reproductive capacity, underscore men’s socially sanctioned entitlement to dictate the terms of sex, and to use force to do so. The story of Sara K., thirty-one, reflected the idea of unsafe sex as a wife’s duty:
Violence, or the threat of violence, deprives women of bodily integrity by eliminating their ability to consent to sex, to negotiate safer sex, and to determine the number and spacing of their own children. In many cases, other forms of violence, such as abandonment or eviction from the home (which are often accompanied by physical violence), hold even greater terror for economically dependent women, who, confronted by a hostile social environment, ignore their husbands’ adultery, and acquiesce to their husbands’ demands for unprotected sex.
In an environment where the stigma of AIDS remains high in spite of the much vaunted openness around HIV/AIDS in Uganda, a fear of violence prevented many women from seeking and gaining access to HIV testing, information and other services. Some women attended HIV/AIDS clinics in secret, and were afraid to discuss HIV/AIDS with their husbands, even when they suspected that the men were HIV-positive and were the source of their own infection.
Elizabeth N., a married woman from Tororo, Uganda, said: “I told him I was going to get tested. He refused. There was only one center. . . . You had to produce a letter from your husband so I forged one.”64 Some HIV-positive women Human Rights Watch encountered had been evicted from their homes and abandoned, often after being physically attacked. Their in-laws stripped HIV-positive widows of their property and means of support when they were at their most physically vulnerable. Their lack of economic autonomy hampered their capacity to escape abusive relationships, thereby exacerbating their vulnerability to violence and HIV infection.
Women in Africa who seek to flee violent marriages through divorce face enormous obstacles. Ugandan marriage and divorce laws, for example, discriminate against women and contravene constitutional provisions providing for nondiscrimination,65 equal protection of the law,66 and equal rights in marriage, during marriage, and at its dissolution.67 In 1999, the government admitted, “[I]n the laws of marriage, divorce or inheritance, there is no gender equity or fairness to date. The woman is always in a subordinate position. This position is aggravated by the requirement in most marriages, that bride price be paid to the parents of the female so that the family and clan of the husband tend to take the woman as property.”68
Statutory divorce laws in Uganda, in particular, provide little in the way of protection for battered women. The grounds for divorce available under the Divorce Act impose an inequitable burden on women attempting formally to terminate their marriages.69 Under the act, a woman cannot simply accuse her husband of adultery but must couple her claim with either cruelty or desertion, or claim that the adultery has been incestuous or bigamous or is accompanied by (polygynous) marriage.70 There is no such legal requirement for men. As the “aggrieved party,” only husbands may claim damages for adultery from co-respondents,71 implying that only the husband’s rights have been violated and underscoring women’s subordinate position in marriage. In general, under customary law, husbands have numerous grounds for divorce available to them, including infidelity, infertility, adultery, witchcraft, or insubordination. The grounds available to wives are limited to impotence, excessive cruelty, and desertion.72 Laws to protect the interests of women in nonmarital unions are even less helpful. The situation in Uganda is similar to that in a number of other countries in the region.
Many governments in Africa have failed to ensure that domestic violence is adequately investigated by the police and prosecuted in the courts. Interviews conducted by Human Rights Watch in Uganda showed that the belief that domestic violence is a private concern that should not involve the state was prevalent within the police force and at the local council level. Interviews with police and state prosecutors indicated that women’s economic vulnerabilities made efforts to pursue domestic violence cases difficult, and that although a small number who filed charges followed their cases through to their conclusion, most ultimately withdrew their complaints in order that their partners could return home and provide for the family. Often this resulted in further violence. One state prosecutor told Human Rights Watch that biased attitudes in the police force and economic constraints meant that those cases that were prosecuted were usually the most egregious, often those that resulted in the woman’s death.73
The Ugandan government has taken steps to improve the police response to family matters. Family protection units have been established in thirty-three out of forty-eight districts,74 and a domestic violence unit has been established at Kawempe police station. However, Superintendent of Police Helen Alyek at the Child and Family Protection Unit at Nsambya Police Station pointed out that sensitization was largely restricted to the urban areas and there was little funding for it.75 Although women were increasingly employed in the family protection units, the numbers of male officers continued to far outstrip their female counterparts.
Lawyers described the level of police response to domestic violence cases in Uganda as erratic and dependent on the particular station. A number of lawyers referred to complaints of domestic violence being treated lightly and on occasion even with scorn. Martha Nanjobe at the Legal Aid Project told us, “Women complain about the police when they report domestic violence. I have those complaints. The police are unsympathetic, jeering at the women even.”76 Joanne Apecu of the Law Reform Commission stressed: “The police look at it [domestic violence] as a domestic issue. The perception [is] that the man has discipline rights. They should be looking at it as a criminal assault. Most times they will send the woman back home.”77
Economic constraints are an obstacle to obtaining medical evidence to support domestic violence allegations. In principle, outpatient health care at government clinics is free;78 numerous NGO representatives reported that, in practice, women have to pay. In addition, hospitals charge high fees for physical examinations that most women cannot afford. The police surgeon is based in Kampala, which is often too far and too expensive for many women to reach. There is also an official fee for the forensic examination. In a 2003 investigation, Human Rights Watch found that in South Africa, where forensic examinations are supposed to be free, some rape survivors were told by police that a fee was required to open the case before they could be examined.79
The absence of a specific domestic violence statute in Uganda, as in many other countries, leaves in the hands of police officers the discretion to classify the offense and decide whether victims of domestic violence will receive medical attention. Officer Salongo told us, “We are the ones to categorize the offence because domestic violence is not stipulated by law… We decide based on her injuries whether she goes for a medical examination. There is common assault where there is a slap. That does not get a medical form.”84 The absence of a standardized investigation protocol makes for a haphazard response to domestic violence, and risks serious injuries being ignored by less committed officers.
In many African countries, aside from a few convictions in particularly heinous cases, few complaints of domestic violence reach the courts. Uganda, again, is a case in point. As one government prosecutor told Human Rights Watch, “We get some cases of domestic violence. Certainly not many. From my experience the cases are hardly prosecuted. [You’d] be lucky if the man is charged in court in the first place. Prosecution hardly happens . . . . The majority of domestic violence cases go unreported. What is reported I think is less than 10 percent.”85 In the few cases that may be reported and prosecuted, women and girls may encounter discriminatory or hostile attitudes. Ugandan lawyer Maureen Owor described the judiciary’s attitude towards domestic violence cases as “very negative.”86 In 1999, the Ugandan Ministry of Gender found that, “Despite the efforts to be impartial and objective, members of the judiciary are affected by societal-based prejudices and stereotypes with regard to property ownership, standards of proof in criminal cases especially relating to sexual offences or violation of the person such as rape, defilement and domestic violence.”87
Numerous factors combine to limit African women’s access to justice. A lack of access to formal education, limited legal literacy, and a lack of familiarity with the language of the courts may make court navigation difficult. Women’s low economic status often makes it impossible for them to meet court expenses, while nepotism and corruption in the courts may favor their more economically powerful husbands. Women’s lack of awareness of court and police procedures exacerbates the problem. Martha Nanjobe of the Legal Aid Project in Kampala noted too that many women in Uganda, for example, were not even aware that domestic violence was an offense.88
Lawyers interviewed by Human Rights Watch in Uganda explained that many cases were lost at the outset because women relied on their husbands for money and permission to travel to the court. Martha Nanjobe recounted the difficulties for women in getting access to their services: “Our branch in Jinja covers more than ten districts. There is one advocate and one volunteer. [The area from Jinja] up to Mbale [is covered] by one office. Women from Mbale cannot run to Jinja! The legal officer leaves the office to go to another district. Clients find the office empty. People can walk seventy kilometers to get to it.”89 She argued, “We need clinics at the district level. This must involve the government. This is their problem. The least they can do is partner with people providing the services.”90
In summary, government failure to identify and tackle the role of violence within long-term unions in the transmission of HIV to women is proving fatal to women. The fight against HIV/AIDS is not conceived to include combating domestic violence and rape within marriage as important determinants of HIV risk. Current approaches focusing on fidelity, abstinence, and condom use do not address the ways in which domestic violence inhibits women’s control over sexual matters in marriage, minimize the complex causal factors of violence, and incorrectly assume that women have equal decision-making power and status within their intimate relationships.
The CEDAW Committee has established that violence against women violates the principle of nondiscrimination and equality enumerated in the Convention.91 A state’s responsibility to protect women from nondiscrimination extends to ensuring “that public authorities and institutions shall act in conformity with this obligation,”92 and to “take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise.”93 CEDAW requires States to: “take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women.”94 Discriminatory marriage and divorce laws, unequal property and inheritance rights, and the unequal treatment of women within the justice system violate the principle of nondiscrimination.
International human rights law recognizes state accountability for abuses by private actors, such as domestic violence, and requires states to show due diligence in preventing and responding to human rights violations. In General Recommendation 19, the CEDAW Committee on the Elimination of Discrimination Against Women emphasized, “States may also be responsible for private acts if they fail to act with due diligence to prevent violations of rights or to investigate and punish acts of violence.”95 In other words, the fact that domestic violence is committed in the privacy of the home does not absolve states of their responsibility to remedy it. The privacy of marriage is not inviolable, and states are legally obligated to ensure that laws governing marital relations are nondiscriminatory, and to criminalize violations of bodily integrity, whether committed by an intimate partner or otherwise. States are obliged to guarantee that victims of domestic violence have recourse to laws that protect them from domestic violence, and that perpetrators of domestic violence are punished.
The duty of the state goes beyond the enactment of laws prohibiting domestic violence. The U.N. Special Rapporteur on Violence Against Women has noted that, “States must find other complementary mechanisms to prevent domestic violence. Thus, if education, dismantling of institutional violence, demystifying domestic violence, training of State personnel, the funding of shelters and other direct services for victim-survivors and the systematic documentation of all incidents of domestic violence are found to be effective tools in preventing domestic violence and protecting women's human rights, all become obligations in which the State must exercise due diligence in carrying out.”96 The United Nations Declaration on the Elimination of Violence Against Women also calls on States to exercise due diligence to investigate and punish acts of violence against women, whether committed by the State or by private actors.97 A state’s consistent failure to do so amounts to unequal and discriminatory treatment, and constitutes a violation of the state's obligation to guarantee women equal protection of the law.98
CEDAW explicitly acknowledges social and cultural norms as the sources of many women’s rights abuses, and obliges governments to take appropriate measures to address such abuses. Article 5(a) of CEDAW provides for a State’s obligation to “modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.” The ICCPR also provides that “Everyone shall have the right to recognition everywhere as a person before the law.”99 The U.N. Human Rights Committee, the body that monitors compliance with the ICCPR, has interpreted this to prohibit the treatment of women “as objects to be given together with the property of the deceased husband to his family,”100 which clearly proscribes the practice of widow inheritance.
Human rights law also requires that governments address the legal and social subordination women face in their families and marriages. Article 16(1) of CEDAW provides: “States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations.” In particular, states are required to afford to women the right to enter into marriage only with their free and full consent,101 equal rights with their spouses in marriage and during any separation or divorce,102 equal parental rights and responsibilities,103 equal rights with regard to the number and spacing of their children,104 and equal rights of “ownership, acquisition, management, administration, enjoyment and disposition of property.”105
International human rights law increasingly recognizes women’s right to sexual autonomy, including the right to be free from nonconsensual sexual relations. The right to sexual autonomy is reflected in a number of international declarations and conference documents.106 Sexual autonomy is closely linked to the rights to physical security and bodily integrity,107 the right to consent to and freely enter into a marriage, as well as equal rights within the marriage.108 When women are subjected to sexual coercion with no realistic possibility for redress, a woman’s right to make free decisions regarding her sexual relations is violated. Lack of sexual autonomy may also expose women to serious risks to their reproductive and sexual health. In many parts of Africa, women’s rights to sexual autonomy, physical integrity, and security of person are violated when women are forced to undergo traditional rituals like wife inheritance involving nonconsensual sex.
60 U.N. Population Fund, “Addressing gender perspectives in HIV prevention,” UNFPA Programme Briefs, no. 4, February 2002.
61 Human Rights Watch interview, Kampala, Uganda, December 10, 2002.
62 Human Rights Watch interview, Tororo, Uganda, December 16, 2002.
63 Human Rights Watch interview with Sara K., Naguru, Uganda, January 15, 2003.
64 Dr. Hitimana-Lukanika, executive director of the AIDS Information Centre, established in February 1990 to provide anonymous, voluntary, and confidential HIV testing and counseling services, confirmed that women are not required to provide letters of approval from spouses at AIC centers. E-mail message from Dr. Hitimana-Lukanika to Human Rights Watch, May 28, 2003.
65 Constitution of the Republic of Uganda, 1995, art. 21(2).
66 Ibid., art. 21(1).
67 Ibid., art. 31(1).
68 MGLSD “Third Country Status Report,” p.70.
69 Under the Divorce Act, neither spouse can claim cruelty as a sole ground of action. The Divorce Act, section 2(v), (Chapter 215, Laws of Uganda), 1st October 1904. The Customary Marriage (Registration) Decree says nothing about grounds for divorce, nor does it mention cruelty. The same holds true for the Marriage and Divorce of Mohammedans Act.
70 The Divorce Act, section 5.
71 Ibid., section 22(1). A co-respondent is the person charged as having committed adultery with one’s spouse.
72 Sylvia Tamale, “Law Reform and Women’s Rights in Uganda,” East African Journal of Peace and Human Rights, (vol. 1:2 1993), p. 173.
73 Human Rights Watch interview with Simon Byabakama-Mugenyi, deputy director of public prosecutions, Directorate of Public Prosecutions, Kampala, Uganda, January 8, 2003
74 Human Rights Watch interview with Helen Alyek, superintendent, Child and Family Protection Unit, Nsambya Police Station, Uganda, December 19, 2002. (According to the government, out of fifty-six districts, only forty-eight are “fully fledged.” See note 19.)
75 Human Rights Watch interview with Helen Alyek, superintendent, Child and Family Protection Unit, Nsambya Police Station, December 19, 2002.
76 Human Rights Watch interview with Martha Nanjobe, executive director, Legal Aid Project Offices, Kampala, January 8, 2003.
77 Human Rights Watch interview with Joanne Apecu, senior legal officer, Law Reform Commission, Kampala, January 7, 2003.
78 The Movement ended cost-sharing during the 2001 elections.
79 Human Rights Watch interview with Dr. V.B. Mohammed, Durban, South Africa, May 15, 2003.
80 Human Rights Watch interview with Maureen Owor, advocate, Owor & Co. Advocates, Kampala, January 6, 2003.
81 Throughout this report the exchange rate used is 1,969.64 Uganda Shillings to the U.S. dollar, the rate at which the Bank of Uganda was selling the U.S. dollar as at March 26, 2003. See Bank of Uganda, [online], http://www.bou.or.ug/majorates_260303.htm (retrieved March 31, 2003).
82 Human Rights Watch interview with Alice Namagembe, Entebbe, Uganda, December 13, 2002.
83 Human Rights Watch interview with Officer Chris Salongo, officer in charge, Child and Family Protection Unit, Kawempe Police Station, Kampala, December 12, 2002.
85 Human Rights Watch interview with Simon Byabakama-Mugenyi, deputy director of public prosecutions, Directorate of Public Prosecutions, Kampala, January 8, 2003.
86 Human Rights Watch interview with Maureen Owor, advocate, Owor & Co. Advocates, January 6, 2003.
87 MGLSD, “Third Country Status Report,” p. 65.
88 Human Rights Watch interview with Martha Nanjobe, executive director, Legal Aid Project, Kampala, January 8, 2003.
91 CEDAW Committee, General Recommendation No. 19, para. 6.
92 CEDAW, art. 2(d).
93 Ibid., art. 2(e).
94 Ibid., art. 2(f).
95 Committee on the Elimination of Violence Against Women (CEDAW Committee), General Recommendation 19, Violence against women, (Eleventh session, 1992), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI\GEN\1\Rev.1 at 84 (1994), (contained in document A/47/38), para. 9.
96 Special Rapporteur on Violence Against Women, its causes and consequences, “Report of the Special Rapporteur on violence against women, its causes and consequences, Ms. Radhika Coomaraswamy, submitted in accordance with Commission on Human Rights resolution 1995/85,” (Fifty-second session), U.N. Doc. E/CN.4/1996/53, February 6, 1996, para. 141.
97 Declaration on the Elimination of Violence against Women, G.A. res. 48/104, 48 U.N. GAOR Supp. (no. 49) at 217, U.N. Doc. A/48/49 (1993), art. 4.
98 See CEDAW, art. 15, and ICCPR, art. 26. For further discussions of international obligations with respect to violence against women by private actors, see Dorothy Q. Thomas and Michele Beasley, “Domestic Violence as a Human Rights Issue,” Human Rights Quarterly, vol. 15, no. 1 (February 1993), Human Rights Watch, Global Report on Women's Human Rights (New York: Human Rights Watch, 1995), pp. 39-44, and Ken Roth, “Domestic Violence as an International Human Rights Issue,” in Rebecca J. Cook, Human Rights of Women: National and International Perspectives, (Philadelphia: University of Pennsylvania Press, 1994), p. 326.
99 ICCPR art. 16. See also UDHR, art. 6.
100 Human Rights Committee, General Comment 28, Equality of rights between men and women (art. 3), U.N. Doc. CCPR/C/21/Rev.1/Add.10 (2000). para. 19.
101 CEDAW, art. 16(1)(b).
102 Ibid., art. 16(1)(c). See UDHR art. 16, for rights to marry, equal rights during marriage and at its dissolution, and requirement for free and full consent.
103 CEDAW, art. 16(1)(d).
104 Ibid., art. 16(1)(e).
105 Ibid., art. 16(1)(h).
106 At the U.N. International Conference on Population and Development held in October 1994 in Cairo, Egypt, and the U.N. Fourth World Conference on Women held in September 1995 in Beijing, China, governments explicitly endorsed women’s sexual autonomy. In the 1994 Cairo Programme of Action on Population and Development, delegates from governments around the world pledged to eliminate all practices that discriminate against women and to assist women to “establish and realize their rights, including those that relate to reproductive and sexual health.” In the 1995 Beijing Declaration and Platform for Action, delegates from governments around the world recognized that women’s human rights include their right to have control over and decide freely and responsibly on matters related to their sexuality free of coercion, discrimination and violence. See United Nations, Programme of Action of the United Nations International Conference on Population and Development (New York: United Nations Publications, 1994), A/CONF.171/13, 18 October 1994, para. 4.4(c) and United Nations, Beijing Declaration and Platform for Action (New York: United Nations Publications, 1995), A/CONF.177/20, 17 October 1995, para. 223.
107 ICCPR, art. 9. Article 9 of the ICCPR guarantees to everyone “liberty and security of person.” This right, although traditionally applied to conditions of arrest or detention, has been expanded over time to cover non-custodial situations.
108 ICCPR, art. 23 and CEDAW, art. 16. See also article 16 of the UDHR.