Abstract
Violence against women (VAW) is a human rights violation under international law, and human immunodeficiency virus (HIV) is regarded as a global public health concern necessitating a human rights response. In the Kingdom of Eswatini (formerly Swaziland), violence and HIV infection are higher among women. In this chapter, the link between VAW and HIV as it affects HIV-positive women in Eswatini is investigated. Many countries have enacted legislation that invokes criminal and civil law to address intimate partner violence (IPV)—including Eswatini through the recent enactment of the Sexual Offences and Domestic Violence Act of 2018. Although there is much literature on the use of the criminal law to punish people who infect others, there is a minimal discussion on the use of the criminal justice system to address violence against HIV-positive women, in particular, violence that interrupts their access to medical treatment. There is also very little discussion in Eswatini on violence against HIV-positive women by healthcare workers. This chapter answers the questions: What obstacles do HIV-positive women face in getting a protection order against a partner who throws away her antiretroviral treatment in Eswatini and what are the remedies for an HIV-positive woman who has been sterilised without informed consent. The study found that HIV-positive women seldom use legal remedies or turn to the criminal justice system. They are largely distrusting of these systems and see them as ineffective. The study is necessitated by the fact that the abuse of women living with HIV inhibits their rights to health, life, and bodily integrity, and the scant attention given to violence that interrupts treatment. This chapter adopts a qualitative methodology comprising of empirical and desktop research methods.
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Notes
- 1.
Joint united nations programme on HIV/AIDS (UNAIDS), Global HIV & AIDS Statistics—2021‚ https://www.unaids.org/sites/default/files/media_asset/UNAIDS_FactSheet_en.pdf.
- 2.
World Health Organisation (WHO), Violence against women key facts (2021), https://www.who.int/news-room/fact-sheets/detail/violence-against-women.
- 3.
Amita Basu, & Ratna Menon, Violence Against Women, HIV/AIDS Vulnerability and the Law. Working Paper prepared for the Third Meeting of the Technical Advisory Group of the Global Commission on HIV and the Law, 7–9 July 2011 (2011): 1. See also Johanna Kehler et al., ‘Gender and HIV violence: Perceptions and experience of violence and other rights abuses against women living with HIV in the Eastern Cape, KwaZulu-Natal and Western Cape, South Africa’ (2012).
- 4.
Neil Andersson, Anne Cockcroft, & Bev Shea ‘Gender-based violence and HIV: Relevance for HIV prevention in hyperendemic countries of Southern Africa’ 74 AIDS (2008): 22.
- 5.
Government of the Kingdom of Eswatini. Swaziland HIV Incidence Measurement Survey 2 (SHIMS2), 2016–2017, April 2019.
- 6.
The Swaziland health sector response to gender based violence guidelines march 2010.
- 7.
Ibid.
- 8.
Shazia Qureshi ‘The recognition of violence against women as a violation of human rights in the United Nations system’ 28 A Research Journal of South Asian Studies (2013): 187–198.
- 9.
Faith Kasiva, ‘Robbed of choice forced and coerced sterilisation experiences of women living with HIV in Kenya’ (2012), https://profiles.uonbi.ac.ke/kihara/files/report-on-robbed-of-choice-forced-and-coerced-sterilization-experiences-of-women-living-with-hiv-in-kenya.pdf.
- 10.
Seth Kalichman, ‘Gender attitudes, sexual violence, and HIV/AIDS risks among men and women in Cape Town’ 42 Journal of Sex Research (2005): 299.
- 11.
Johanna Bond, & Robin Phillips, ‘Violence against women as a human rights violation: International institutional responses’ in Sourcebook on Violence Against Women edited by Claire M. Renzetti et al., (2001): 481–499.
- 12.
Ibid.
- 13.
Human Rights Watch, Just Die Quietly: Domestic Violence and Women’s Vulnerability to HIV in Uganda, (2003): 2–40.
- 14.
Delia Lang, & Laura Salazar, ‘Associations between recent gender-based violence and pregnancy, sexually transmitted infections, condom use practices, and negotiation of sexual practices among HIV-positive women’ 46 Acquired Immune Deficiency Syndrome (2007): 46.
- 15.
Ibid.
- 16.
Lang, & Salazar, Supra, Note 14.
- 17.
Basu, & Menon, Supra, Note 3.
- 18.
Ibid.
- 19.
Shirley Wang, ‘Violence and HIV/AIDS: Violence against women and girls as a cause and consequence of HIV/AIDS’ 17 Duke Journal of Gender Law & Policy (2010): 314.
- 20.
UNICEF, Gender-Based Violence and HIV/AIDS in South Africa Organisational Responses (2003): 15.
- 21.
Zaynab Essack, & Ann Strode, ‘I feel like half a woman all the time’: The impacts of coerced and forced sterilisations on HIV-positive women in South Africa’ 26 Empowering Women for Gender Equity (2012): 24–34. See also, Open society foundations, Against Her Will, Forced and Coerced Sterilization of Women Worldwide (2011), http://www.soros.org/sites/default/files/against-her-will-20111003.pdf; Ann Strode et al., ‘She made up a choice for me: 22 HIV-positive women’s experiences of involuntary sterilisation in two South African provinces’ 20 Reproductive Health Matters (2012): 1–9.
- 22.
Simangele Mavundla, ‘Battered, dejected, ejected, and rejected: The rights of HIV positive women to be protected from violence, a critical analysis of the legal framework in Eswatini’ (Unpublished PhD Thesis UKZN July 2020).
- 23.
Virginia Braun, & Victoria Clarke ‘Using thematic analysis in psychology’ 3 Qualitative Research in Psychology (2006): 16.
- 24.
International Planned Parenthood Federation (IPPF) Research Dossier on HIV Prevention for Girls and Young Women in Swaziland (2007).
- 25.
Ibid.
- 26.
Eswatini Constitution, Section 20.
- 27.
Zakhe Hlanze et al., Customary Practices, the Laws and Risky Behaviours—A Concern for the Increased Prevalence and Vulnerability to HIV and AIDS Among Women and the Girl Child: A Rights-Based Approach (2008): 155.
- 28.
SODV Act of 2018, Section 77(1).
- 29.
Ibid., Section 78–103.
- 30.
Ibid., Section 126.
- 31.
Ramadimetja S. Mogale, Kathy K. Burns, & Solina Richter, ‘Violence against women in South Africa: Policy position and recommendation’ 18 SAGE (2012): 580–594.; Gadinabokao Keaorata, ‘Shortcomings of the South African domestic violence act 116 of 1998 in comparative perspective’ (Unpublished LLM dissertation, University of Pretoria 2016).
- 32.
The Vienna Declaration of 1993.
- 33.
General Assembly Resolution 32/130 of 1977 explicitly states that ‘all human rights and fundamental freedoms are indivisible and interdependent; equal attention and urgent consideration should be given to the implementation, promotion and protection of both civil and political, and economic, social and cultural rights.
- 34.
Johanna Bond, & Robin Phillips ‘Violence against women as a human rights violation: International institutional responses’ in Sourcebook on Violence Against Women edited by, C. M. Renzetti, J. L. Edleson & R. K. Bergen (2001): 481.
- 35.
UN, Declaration on the Elimination of Violence Against Women of 1993.
- 36.
Bond, & Phillips, Supra, Note 32.
- 37.
UN International Covenant on Civil and Political Rights of 1966—See article 17 on privacy, article 10 on inherent dignity, article 26 on equality and non-discrimination and article 12 of international covenant on economic, social and cultural rights of 1966.
- 38.
Ibid.
- 39.
Audrey Chapman ‘Violations Approach for monitoring the international covenant on economic, social and cultural’ rights’ 18 Human Rights Quarterly (1996): 23–66.
- 40.
UN convention against torture and other cruel inhuman or degrading treatment or punishment of 1984, ratified in 2004.
- 41.
International Covenant on Civil and Political Rights of 1966, ratified in 2004.
- 42.
Dina Bogecho ‘Putting it to good use: The international covenant on civil and political rights and women’s right to reproductive health’ 13 Southern California Review of Law and Women’s Studies (2004): 229–272.
- 43.
Ibid.
- 44.
ICCPR, article 3, provides that state parties undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights.
- 45.
ICCPR, article 6, provides that every human being has the inherent right to life; that this right shall be protected by law and that no one shall be arbitrarily deprived of his life.
- 46.
ICCPR, article 7, provides that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
- 47.
ICCPR, article 26, provides that all persons are equal before the law and are entitled without any discrimination to the equal protection of the law and prohibits discrimination.
- 48.
Bogecho, Supra, Note 41.
- 49.
UN convention on the elimination of all forms of discrimination against women (CEDAW) of 1979, ratified in 2004.
- 50.
Ibid., article 16 provides that states parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations.
- 51.
- 52.
World Health Organisation, world health assembly, resolution 40.26, global strategy for the prevention and control of AIDS, Geneva, May 5, 1987. See also, Sofia Gruskin et al., ‘Human rights and HIV/AIDS’ (2002), http://hivinsite.ucsf.edu/InSite?page=kb-08-01-07.
- 53.
Ibid.
- 54.
African Charter on Human and Peoples’ Rights of 1981, ratified in 1995.
- 55.
Protocol to the African charter on human and peoples’ rights on the rights of women in Africa (Maputo protocol) of 2003, ratified in 2012.
- 56.
African commission, 260: Resolution on involuntary sterilisation and the protection of human rights in access to HIV services Banjul, The Gambia: Adopted during the 54th ordinary session of the African commission held from October 22, to November 5, (2013), https://www.achpr.org/sessions/resolutions?id=280.
- 57.
Paragraph ii of African commission, resolution 260 of 2013 (ACR).
- 58.
Ibid., Paragraph iii.
- 59.
Ibid., Paragraph vii.
- 60.
Ibid., Paragraph viii.
- 61.
African Commission on Human and Peoples’ Rights, General Comments on Article 14 (1) (d) and (e) of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (2012).
- 62.
- 63.
UNAIDS, ‘Declaration of commitment on HIV/AIDS: Global crisis—Global action,’ United Nations General Assembly Special Session on HIV/AIDS, (2001).
- 64.
Gruskin, Supra, Note 51.
- 65.
Ibid.
- 66.
Supra, Note 61, Guideline 1.
- 67.
Supra, Note 61, Guidelines 2.
- 68.
Supra, Note 61, Guideline 3.
- 69.
Supra, Note 61, Guideline 4.
- 70.
Supra, Note 61, Guideline 5.
- 71.
Christine Chinkin, ‘Violence against women: The international legal response’ 3 Gender Development (1995): 25.
- 72.
UNAIDS Gender Matters: Overcoming Gender-Related Barriers to Prevent New HIV Infections Among Children and Keep Their Mothers Alive (2014): 7.
- 73.
Participant 7, WLH.
- 74.
Participant 30, WLH.
- 75.
Participant 39, KI.
- 76.
Participant 38, KI.
- 77.
Participant 36, KI.
- 78.
Participant 33, KI.
- 79.
First 90: Percentage of people living with HIV who know their HIV status; Second 90: Percentage of people living with HIV who know their status and who are on treatment; and Third 90: Percentage of people living with HIV on treatment who have suppressed viral loads.
- 80.
The name of the sterilised woman blocked, to ensure anonymity.
- 81.
Participant 3, WLH.
- 82.
Participant 26, WLH.
- 83.
Participant 34, KI.
- 84.
Participant 37, KI.
- 85.
In 2016, the Southern Africa Litigation Centre (SALC) supported a case before the Swaziland High Court of a women who sued the government of Swaziland for being forcefully sterilised in a government hospital. The Government offered a confidential settlement of 50 thousand emalangeni (US$ 3 850).
- 86.
Claudia Garcia-Moreno et al. WHO Multi-Country Study on Women’s Health and Domestic Violence Against Women: Initial Results on Prevalence, Health Outcomes and Women’s Responses (2005). See also, World Health Organisation (WHO) World Report on Health and Violence: Sexual Violence (2006). Also, Vikas Paudel, & Kedar Baral ‘Women living with HIV/AIDS (WLHA), battling stigma, discrimination and denial and the role of support groups as a coping strategy: A review of the literature’ 9 Reproductive Health (2015): 5. See also, Johanna Kehler, et al. Gender and HVI Violence: Perceptions and Experience of Violence and Other Rights Abuses Against Women Living with HIV in the Eastern Cape, KwaZulu-Natal and Western Cape, South Africa (2012).
- 87.
Chandreyee Roy, ‘Human Rights and HIV/AIDS with Special Reference to Women’ 35 Indian Anthropologist, (2005): 97–110.
- 88.
Jonathan Mann et al. ‘Health and human rights’ 1 Health and Human. Rights (1994): 7–23. See also Elizabeth Fee, & Manor Parry ‘Jonathan Mann, HIV/AIDS, and Human Rights’ 29(1) Journal of Public Health Policy (2008): 61.
- 89.
UNAIDS International Guidelines on HIV/AIDS and Human Rights of 2006 Consolidated Version, https://www.unaids.org/sites/default/files/media_asset/jc1252-internguidelines_en_0.pdf.
- 90.
Ying Li et al. ‘Intimate partner violence and HIV infection among women: A systematic review and meta-analysis’ 17 Journal of the International AIDS Society (2014): 4. See also Basu & Menon, Supra, Note 3.
- 91.
Anna Leddy et al. ‘Gender-based violence and engagement in biomedical HIV prevention, care and treatment: A scoping review’ 19 BMC Public Health (2019): 2.
- 92.
Joint United Nations Programme on HIV/AIDS (UNAIDS), Global and regional data 2019.
- 93.
Ibid. See also, Sally Field et al. ‘Domestic and intimate partner violence among pregnant women in a low resource setting in South Africa: A facility-based, mixed methods study’ 199 BMC Women’s Health (2018): 18.
- 94.
Abdol Karim, & Cheryl Baxter ‘The dual burden of gender-based violence and HIV in adolescent girls and young women in South Africa’ 106 (12) South African Medical Journal (2016): 1151–1153.
- 95.
Ibid., 1151.
- 96.
Kristen Dunkle, & Michele Decker ‘Gender-based violence and HIV: Reviewing the links and casual pathways in the general population and high-risk groups’ 69(1) American Journal of Reproductive Immunology (2013): 20–26.
- 97.
UNAIDS Gender Matters: Overcoming Gender-Related Barriers to Prevent New HIV Infections Among Children and Keep Their Mothers Alive (2014): 7.
- 98.
Zaynab Essack, & Ann Strode ‘I feel like half a woman all the time’: The impacts of coerced and forced sterilisations on HIV-positive women in South Africa’ 26 Empowering Women for Gender Equity (2012): 24–34. See also Open Society Foundation Against Her Will, Forced and Coerced Sterilisation of Women Worldwide (2011), http://www.soros.org/sites/default/files/against-her-will-20111003.pdf.
- 99.
Paul Farmer et al. ‘Structural violence and clinical medicine’ 3(10) PLoS Med (2006): 1686.
- 100.
Mduduzi Magagula, No babies for HIV + Women? Times of Swaziland November 17, 2013, www.times.co.sz/news/93328-no-babies-for-HIV-women.html.
- 101.
Lydia Guterman, ‘Women in Namibia fight back against forced sterilisation’ (2010), https://www.opensocietyfoundations.org/voices/women-namibia-fight-back-against-forced-sterilization.
- 102.
Essack, & Strode, Supra, Note 21.
- 103.
Ibid.
- 104.
Essack, & Strode, Supra, Note 21. See also, Open Society Foundations, Supra, Note 97.
- 105.
Supra, Note 75.
- 106.
Khabir Ahmad, ‘Swaziland debates sterilisation of HIV patients’ 356 Lancet (2000): 321.
- 107.
Geofrey York ‘HIV + women in Africa sterilised, stigmatised’ May 2, 2018, The Global Mail, http://www.theglobeandmail.com/news/world/hiv-women-in-africasterilized-stigmatized/article4262581/.
- 108.
African Union, Agenda 2063, 2015.
- 109.
Ibid., Aspiration 6, Paragraph 51.
- 110.
Supra, Note 4, 74.
- 111.
Ibid.
- 112.
Andersson, Supra, Note 100.
- 113.
Ibid.
- 114.
Ebenezer Durojaye, ‘Advancing gender equity in access to HIV treatment through the protocol on the rights of women in Africa’ 6 African Human Rights Law Journal (2006): 188–207.
- 115.
James Hodge et al., ‘A global assessment of the role of law in the HIV/AIDS pandemic’ 123(3) Public Health (2009): 260.
- 116.
UNAIDS Action Linking Initiatives on Violence Against Women and HIV Everywhere, ALIV(H)E framework (2017).
- 117.
Sophie Patterson et al. ‘The impact of criminalisation of HIV non-disclosure on the healthcare engagement of women living with HIV in Canada: A comprehensive review of the evidence’ 18 Journal of the International AIDS Society (2015): 1–15.
- 118.
Musara Lubombo ‘Re-thinking HIV disclosure as ubuntu: Towards a social theory of communicative responses to the sub-Saharan epidemic’ 15(3) African Renaissance (2018): 12.
- 119.
Phiri v S 2013 ZAGPPHC 279.
- 120.
Phiri v S 2013 ZAGPPHC 279 in Paragraph 15, the court found the fact that he worked in a clinic as an HIV counsellor an aggravating factor.
- 121.
Linda Mills, ‘Empowering battered women transnationally: The case for postmodern interventions’ 41 Journal of Social Work (1996): 261.
- 122.
Ibid.
- 123.
UN declaration on the elimination of all forms violence against women of 1993 article 4, Paragraph (d).
- 124.
Ebenezer Durojaye ‘The role of the African commission on human and peoples’ rights in developing norms and standards on HIV/AIDS and human rights’ Global Jurist (2017): 4. See also Chantal Badul, The coerced and forced sterilisation of women living with HIV in South Africa: A critical review of existing legal remedies (unpublished PhD Thesis, UKZN, 2018): 7.
- 125.
African Commission, Resolution 260 of 2013.
- 126.
Beth Goldblatt ‘Social and economic rights to challenge violence against women—Examining and extending strategies’ South African Journal on Human Rights (2019): 169–193.
- 127.
K. J. Amaka ‘The girl child and gender-based violence: Implication on education performance and women empowerment’ 3 International Journal of the Forum for African Women Educationalists (2015): 1–9.
- 128.
Goldblatt, supra, Note 16.
- 129.
Ibid.
- 130.
Keera Allendorf ‘Do women’s land rights promote empowerment and child health in Nepal? 35 World Development (2007): 1975.
- 131.
Mills, supra, Note 107.
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Mavundla, S.D., Strode, A., Essack, Z. (2022). Access to Justice for Women in Eswatini: HIV-Positive Women as a Vulnerable Population . In: Budoo-Scholtz, A., Lubaale, E.C. (eds) Violence Against Women and Criminal Justice in Africa: Volume II. Sustainable Development Goals Series. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-75953-7_12
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