On July 30, Judge Elton Hoff ruled in favour of three women who sued the Namibian state for being forcibly sterilised. Whilst this has been heralded as a positive development, the court also deemed that there was inconclusive evidence that the procedure was carried out due to the women’s HIV-positive status.
The case has highlighted a worrying trend in Namibia whose roots lie not just in rights-infringing policies but in a deeper culture of gender inequalities.
Since 2008, the Legal Assistance Centre (LAC) of Namibia has documented 15 individual cases of women with HIV being sterilised without informed consent.
One of the three women who received the positive ruling from the Namibian High Court recounted her traumatic experience. During her stay in hospital, the woman was told that a Caesarean section was necessary to deliver her child. The medical staff then reverted to talking in Afrikaans, a language she does not understand, while she was anaesthetised and operated on. She later heard a nurse confirm “this one has also been sterilised”.
In another case – one not brought before the court – a pregnant woman went to give birth in a hospital in Namibia’s capital of Windhoek. She was similarly told that she would require a c-section and was asked to sign papers to consent to the operation. A month later, she was told by a nurse at a family planning clinic that she couldn’t have access to family planning as she was already sterilised.
A report in March 2009 by the NGO the International Community of Women Living with HIV/AIDS (ICW) cites further ways in which HIV-positive women have been coerced or deceived into sterilisation. These include failure by medical staff to obtain consent, demanding consent for sterilisation without explaining alternatives, providing misinformation in order to gain consent, and denying access to medical records.
The Namibian High Court, however, ruled that the prosecution failed to prove the women had been sterilised because they were HIV-positive. Judge Elton Hoff concluded that “there is no credible and convincing evidence that the sterilisation procedures had been performed on the plaintiffs due to the fact that they are HIV positive”.
This conclusion is contentious. Two of the three women testified that they were told by medical personnel that there was a policy in place that all HIV-positive women should be sterilised.
A significant yet under-discussed question is who is ultimately responsible for these policies if they do exist. Jennifer Gatsi-Mallet, founder and director of the Namibian Women’s Health Network (NWHN), explained to Think Africa Press her efforts to find the origins of the practices:
“In one of our meetings in the northern region at Onandjokwe hospitals, two doctors and the HIV programme officer told us they were following the Ministry of Health’s guidelines. When we asked them to share with us the guidelines, they referred us to the Ministry in Windhoek.
“When we went on to ask what influenced these guidelines, they told us it was from the guidelines which were developed by the World Health Organisation (WHO) when the first information of HIV in heterosexuals was reported. The guidelines were to ensure that women getting infected would not get pregnant and infect their babies.”
According to Gatsi-Mallet, the NWHN approached the Ministry of Health in Windhoek to request the guidelines in August 2008. Although the ministry consented to sending a copy, the NWHN never received them. The NWHN then asked Namibia’s Legal Assistance Centre to request the guidelines, but this time the Ministry of Health simply failed to respond.
Questions must be asked of the validity of the Ministry of Health’s claims that the guidelines came from the WHO. It is true that the sterilisation of HIV-positive women without consent is not merely a Namibian or even solely an African problem; there are currently ongoing legal cases in Kenya, Swaziland, and Zambia but there have also been reported incidents of forced sterilisation in Chile, Indonesia, Puerto Rico, Mexico, Venezuela, and elsewhere.
However, it is also the case that only one WHO publication on HIV/AIDS speaks about sterilisation in any significant detail, and it simply states that “health care workers should ensure that women are not pressured or coerced to undergo the procedure and that the decision is not made in a moment of crisis”.
The 2009 ICW report concluded that the “government of Namibia is complicit in the unethical practice of sterilising positive women”. Minister of Health Richard Kamwi denied that the involuntary sterilisation of HIV-positive women is a pattern in Namibia, but said that the ministry is “looking into it”.
If forced sterilisation of HIV-positive women has been a policy pursued from within the Namibian government, it would represent another infringement of the rights of an already vulnerable section of the country’s citizenry.
Namibia is inflicted with deep-rooted gender inequalities, and women have minimal control over sexual practices. In Unravelling Taboos: Gender and Sexuality in Namibia, Lucy Steinitz and Diane Ashton describe “a widespread belief that men are superior to and should dominate women”. They explain that “Women are especially at risk for contracting HIV because, as a rule, their relatively weak social and economic positions inhibit them from avoiding sex with an infected partner or enforcing the use of condoms”.
In a report by the NWHN, Northeastern University Law School, and the International Human Rights Clinic at Harvard Law School, every member of a focus group in a suburb of Windhoek had heard of women being beaten for asking their partners to use condoms.
In Oshikwanyama, a regional language in Namibia, the saying Oxuxwa yo ghadi iha ilili (a hen does not crow) is used to explain that it is the man who determines the nature of a sexual encounter.
The Namibian Planned Parenthood Association (NAPPA) interprets coerced sterilisation as a connected to such gender imbalances, saying: “This particular area is falling at an interesting intersection. It doesn’t qualify as your usual domestic violence/rape within marriage…however this is a form of gender-based violence.”
Forced sterilisation underscores the perception of a woman’s body not being her own property, establishing it as something that men or the state can control.
If cases of forced sterilisation are to be properly addressed, groups such as the NGO International Women’s Development Agency (IWDA) and UN Women – whose 2012 Commission on the Status of Women failed even to discuss the topic – must become vocal on the issue. Namibia’s problem lies not just in possible government policies which disregard women’s rights, but in deep-seated cultural perceptions of women and pervasive gender inequalities.
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