full of promise

July 14, 2004: A recent report emanating from the University of Pretoria reveals that the Malawi's National Policy on HIV/Aids (2002) holds much promise for LGBT legal reforms in relation to combating HIV/Aids.

The study, "HIV/Aids and Human Rights in Malawi" is an analysis, as part of a wider group of similar studies of other southern African countries, and seeks to inspire and encourage a rights-based approach to HIV/Aids management, as opposed to the failed policy-based approach that has previously been adopted in the region. The aim of the research project is to assist decision makers but not to establish the extent to which the Malawian government (among others) is implementing the provisions in place.

In relation to homosexuality the report points out that same-sex relationships are criminalised by the Penal Code of Malawi in sections 153, 154 and 156. However, the report also highlights that the National Policy document, in section 4.9, provides for the drafting of guidelines for an effective response to promoting prevention and care in terms of HIV infection for people in same sex relationships. "Government and partners shall put in place mechanisms to ensure that HIV/Aids/STI prevention and care services can be accessed by women, men and youth in this vulnerable group," states the National Policy on page 23. In section 7.1.2 the National Policy also addresses the involvement of traditional leaders in the issue. "Traditional leaders should be sensitised with a view that, in the long term, prostitution, sodomy and same-sex sexual practises may be decriminalised for proper management of the HIV/Aids epidemic," the report emphasises, adding that the National Policy also states: "The government shall promote the empowerment of commercial sex workers and same-sex sexual partners to enable them to make informed decisions about their sexual life."

With regard to commercial sex workers the National Policy applies to both male and female sex workers. Section 4.6 of the National Policy states: "Government and partners shall ensure that, as citizens of Malawi, male and female sex workers access their rights, including their right to freedom of association; and the Ministry of Health and Population shall ensure that sex workers have access to confidential and respectful health care, particularly sexual and reproductive health, life skills, female and male condoms and treatment and care in case of sex workers living with HIV/Aids."

While there seem to be many positive elements to the National Policy, as pointed out in the report, there are discernable cracks in the veneer. For example, in relation to condom distribution, free condoms are supposed to be made available in prisons - however, prevailing official policy claims that sex does not occur in prisons and therefore condoms do not need to be distributed there. The Department of Home Affairs has however kept true to its promise not to segregate HIV + prisoners from the rest of the prison population, which is in accordance with the National Policy.