Inequality is Fatal

A Human Rights Perspective on African Women and HIV

Sixteen Days of Activism Against Gender Violence Zero Tolerance
Inequality is Fatal : A Human Rights Perspective on African Women and HIV - Kelly Jones


Human rights abuses in Sub-Saharan Africa are increasing the risk of HIV transmission to women and girls throughout the region: an overview of rights violations and relevant international law.

"Gender inequality is at the heart of the [AIDS] epi­demic ... We must address power imbalances if we seri­ously want to tackle this global challenge. It is not simply a matter of justice and fairness. In this case, gender in­ equality is fatal."

Noeleen Heyzer, Executive Director for UNIFEM


When AIDS made its first appearance on the world stage, it was largely associated with homosexual men and intravenous drug users. These assumptions, at that time, were well founded in epidemio­logical statistics. Women, especially married or sexually monogamous women were fringe cases of HIV infection. Today, women of all lifestyles, including teens and young girls are at the heart of this epidemic and now account for nearly 50% of cases worldwide. Clearly the rate of infection is increasing at a much faster rate among women than men.

This is particularly true in Sub-Saharan Africa, the only region of the world where the incidence of HIV in women exceeds that of men (58% of all cases). In some of the most severely affected countries, women in the 15-24 year age bracket alone constitute a staggering 66% of infections. By the year 2020, the female mortality in Sub-Saharan Africa will peak at 30-34 years of age, whereas for men it will be a full ten years higher.1

To what can one attribute this increased rate of infection among women? Biological as well as socio-cultural factors make women more susceptible to transmission. But most importantly, as this article will demonstrate, it is the violation of the basic human rights of women that is putting them at higher risk. Throughout the world, and particularly in Sub-Saharan Africa, women have long been denied some of their most fundamental rights as humans. The resulting diminished social and economic standing and lack of power over their own bodies greatly increase the risk of transmission. And while certain rights violations di­rectly increase women's vulnerability to HIV, every instance in which a woman is denied her rights devalues her as a person, weakens her sense of self-ownership, and thereby further reduces her ability to protect herself from infection. Key issues to be examined here regarding the denial of human rights are violence against women, marriage and reproductive rights, land and prop­erty rights, the use of wives as property, economic gender inequal­ity, access to education, and political participation. The obligations of States under relevant international instruments to protect the human rights inherent to these issues will be discussed in conjunc­tion with the overarching responsibility to protect the right to health.

The Problem With Tradition

There are innumerable issues present throughout Sub­Saharan African countries that contribute to an increasing inci­dence of HIV in women. Some of the most pressing include land tenure, education, reproductive rights and gender based violence. The plethora of human rights violations which give rise to these issues are also interrelated and often inseparable. In many cases, the arrow of causation points in both directions. In considering virtually any systematic violation of women's human rights in this region, issues such as African cultural traditions and customary law always arise. Before examining specific violations in detail, a brief look at the place of African tradition in the context of this issue is appropriate.

African culture and traditional practices are often cited as sources for rampant disregard of women's rights in Sub-Saharan Africa. Scholars and practitioners point to customary law and its ability to undermine modern governments' attempts to create gender equality. For example, the International Human Rights Law Group states,

"Customary laws, cultural practices and traditional norms are used to justify the disinheritance of widows and invoked to override statutory or constitutional pro­visions for women that may provide them with a legal right to inherit. In Nigeria, for example, customary law settles approximately So percent of land disputes at the expense of women's rights."2

As will be illustrated below, it is true that laws such as prohibition of female inheritance, the payment of bride price and other marriage laws now contribute to the prevalence of HIV in women. However, an exami­nation of historical record shows us that these "customary laws" are not the traditional African customs they are assumed to be.

In the efforts of the colonialists to create a standard, legal, social order in the African colonies, traditional customs were codified into "customary law." But this legalization was by no means accurate and unbiased. The customs were passed from the male leaders of the African communities, filtered through the cultural lens of the colonialists, com­bined with customs from neighboring but often very different tribes, and written into law as the "traditions of the indigenous peoples." Not only did this process greatly bias these laws, but in addition, what were once fluid cultural norms became rigid legal codes unable to adapt to changing social circumstances.

For example, lobola was a tradition of gifts given from a man's family to the family of his bride, intended to create a broad network of reciprocal social relations. This often created a safety net for women to escape failed marriages and was in no way considered a commercial transaction. The codification of this practice made it legally mandatory rather than a socially beneficial norm and set a precedent for the use of cash in place of traditional gifts. The result was commercialization and objectification of women, severely limiting their social protection within the community.3

Because human rights are universal and not culturally relative, one cannot use traditional culture to justify human rights violations. And while there certainly remain cultural practices that violate women (i.e. female genital mutilation), it is important to realize that, in general, customary law was not, in fact, originally in conflict with women's human rights. Therefore, a sweeping condemnation of traditional African culture in favor of women's human rights is not appropriate.

Sexual Violence and Abuse


The issue of rape and sexual violence is extremely prevalent in the war-torn areas of Sub-Saharan Africa. In Eastern Congo, rape has been widely used as a tool of war since 1996, and most heavily in recent years. Military forces use sexual violence towards women to demonstrate power over the opposing forces and to punish dissidents. Rape can increasingly be attributed to police and other power figures who, like the troops and militia, generally enjoy impunity.4

The situation is similar in other conflict and post-conflict areas, such as Sierra Leone where it is estimated that one in eight women have suffered sexual violence at the hands of rebel, pro-government or even peacekeeping forces. The violent acts include rape, sexual torture, sexual mutilation and forced abortions, using a variety of weapons including metal rods, sticks and branches, and boiling oil. Women are beaten, caged, and threatened with death as a means of forcing them into sexual slavery.5

These atrocities are obvious violations of women's human rights according to widely accepted international law. Every person's right to liberty, security, and/ or integrity of person, regardless of his or her sex is guaranteed by the United Nations' International Covenant on Civil and Political Rights (ICCPR), Article 9, as well as the Charter of the African Commission on Human and People's Rights (ACHPR), Articles 4 & 6.

Additionally, protection from slavery, torture, and cruel, inhuman, or degrading treatment are guaranteed by the ICCPR, Articles 7 & 8, as absolute rights without option of derogation, and are protected by ACHPR, Article 5, as well. The Statute of the International Criminal Court, approved by the General Assembly of the UN in 1998, cites sexual slavery, forced pregnancy, forced sterilization and other forms of sexual violence as crimes against humanity or war crimes, equaling them to torture and genocide. 6 While many human rights instruments allow derogation from protecting certain rights during times of national emer­gency, certain absolute rights must be observed at all times.7 This statute puts freedom from such sexual violence in the category of absolute rights that, under no circumstances, may be violated.

Rape and sexual slavery put women at high risk of HIV transmission for several reasons. First, abrasions and tearing which are far more common in forced rather than consensual sex increase the portals of entry for the virus. Also, the likelihood is very high that the perpetrator will be HIV positive. Sierra Leone has a 7% infection rate in its adult population, but troops and militia have an infection rate of 42%. More drastically, 60% of militants in Eastern Congo are infected, compared to 7.2% of the total population.8 In Sub-Saharan Africa armed troops usually have infection rates two to five times higher than the civilian population, and up to fifty times higher during periods of conflict.9

In addition, women are generally unwilling to report rape or seek medical attention due to the heavy social stigma and unlikelihood of punishment for the perpetrator. When women do seek aid few medical facilities or practitioners are available and most have relatively high costs. In many conflict areas, the system of health services that was available disappears as a result of the war.

The impact of this crisis on women's rates of infection is clear. In Bakavu, Congo, 54% of women are HIV positive compared to a drastically lower rate of 32% of men.10 In Sierra Leone, women account for 60% of documented cases of HIV.11 Yet it is only recently that the significance of conflict-related sexual violence has been recognized as creating situations in which almost nothing is being done to prevent infection and promote the recovery of victims.


Certainly not limited to conflict areas, sexual violence against women is prevalent throughout Sub-Saharan Africa. In most countries in this region, there are no laws against marital rape, which is common due to imbalance of power relations in marriage. Young women are also at high risk of sexual abuse. In Zambia, girls are up to six times more likely to be infected than boys. Often occurring within the family unit, sexual abuse is particularly hard to combat, as it is frequently unreported due to cultural taboos of speaking about rape or incest. Orphaned girls are also at risk, as they may have to rely on distant relatives who demand sex in return for school fees or other financial support. Sometimes, as a result of the AIDS epidemic, boys are allowed to sexually abuse their sisters as a way to "keep safe within the family."12 In addition, the victims of abuse are increasingly younger; likely a result of a common myth that sex with a virgin will cure one of HIV.

The UN Committee on the Elimination of Discrimination Against Women has established that violence against women violates the prin­ciple of nondiscrimination and equality enumerated throughout the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), adopted by the UN General Assembly in 1979.13 Such violence, even within the family, constitutes the same violations of liberty and security of person as mentioned above. Additionally, sexual child abuse violates Article 34 of the UN Convention on the Rights of the Child (CRC) that protects the child from all forms of sexual exploitation and sexual abuse.

These issues obviously put women at an elevated risk of HIV trans­mission. Rape and abuse, even when the perpetrator is a domestic partner or family member, not only biologically increase risk, but also psychologically reduce a women's sense of self-ownership and her ability to negotiate safe sex in the future. In addition, there is evidence that in 'HIV discordant' couples, in which the man is HIV positive and the woman is not, there is an even higher prevalence of violence and rape.14 As Noeleen Heyzer, Executive Director of UNIFEM stated on World AIDS Day, 2003, "Only when we recognize the interrelationship between violence against women and HIV/A IDS can we tackle both pandemics and reverse their progression."15

Marriage and Reproductive Rights

Marital rape, as mentioned above, is part of a greater issue of over­all imbalance of power in marriage. African women, often raised to be obedient and subservient to men, are chained to their subordinate status, unable to assert themselves. According to Spike Peterson and Anne Runyan in Global Gender Issues, there exists a pervasive gender di­chotomy that divides women and men into life-givers and life-takers, thereby putting power in the hands of the men. Traditional views of gender roles as soldier or mother, protector or protected, and aggressive or passive translate into batterers and victims, and powerful and power­less.16 The image of men as powerful is exacerbated by men's superior entitlements to ownership, child custody, and power to dissolve mar­riage.

Women's powerlessness in marital relations has huge implications for their ability to protect themselves from HIV. Reproductive rights, first defined in the 1994 Cairo Programme of Action from the UN Confer­ence of Population and Development, state that reproductive health includes the capacity to enjoy a satisfactory sexual life without risk, and the freedom to decide whether or not to have children, when, and how often.17 While directly specified in CEDAW Article 16(1)(e), these rights are also descendants of the right to found a family, as guaranteed in ICCPR, Article 23(2), that goes beyond contraception, gestation and delivery, and extends to planning, timing and spacing births to protect the health of the child and the woman.18 This obviously requires that women have access to information on and methods of family planning as well as the ability to acquire contraception. A woman's right to informa­tion is delineated in Article 9 of the ACHPR, and is laid out in detail as a right to information and counseling on family planning in Article 19 of CEDAW. Additionally, the Platform for Action from the UN's 4th World Conference on Women stated that the right to liberty and security of person stated in the ICCPR, Article 9, carries with it the obligation to provide women with control over their sexuality so that they can decide freely and responsibly matters related to sexual and reproductive health free from coercion, discrimination or violence.19

Yet despite the binding nature of reproductive rights under three major conventions that have been ratified by most Sub-Saharan Africa States (ICCPR, ACHPR and CEDA W), women's human rights in the sexual and reproductive sphere are stripped from them and placed completely in the hands of their husbands. Women are certainly not afforded the right to enjoy a sexual life without risk. There exists a general perception of a marital obligation for unprotected sex. When women are unwilling to comply, sex is often forced upon them under threat of eviction, abandonment, or violence. 20 The International Center for Research on Women reports that less than 25% of Zambian women believe tl1ey can refuse sex with their husband even if he has been un­faithful and is infected. 21 This lack of self-ownership or empowerment in marriage makes women unable to negotiate condom use. In fact, of women infected while in long-term, stable relationships, 80% are in­fected as a result of their partner's infidelity.22

The imbalance of power in favor of the husband also strips women of their right to decide whether to have children, when, and how often. Though perhaps seemingly unrelated to HIV transmission, it may in fact have quite an impact on a woman's risk factors. Certain types of contra­ception, such as condoms, greatly reduce the risk of transmission; but women in Sub-Saharan Africa rarely have enough equality in their marriages to make the decisions about family planning on which the use of such contraception hinges. Additionally, according to a Human Rights Watch report, husbands often prevent women from attending clinics to learn about family planning, where they may also learn about and be tested for HIV.23 Women unable to learn about their options for birth control are not being afforded their right to information and are thereby less empowered to protect themselves from transmission.

Due to established gender roles and women's subordinate status in marriages, men have commandeered ownership and control of women's reproductive and sexual rights. The result is a higher risk of HIV trans­mission for women through lack of condom use in marriage and reduced access to information on family planning and protection from HIV.

Women Without Property

Closely tied to the imbalance of power in marriage is the issue of land tenure and property ownership. In many Sub-Saharan Africa countries, women are not allowed to hold property in their names, and have no right to land tenure. A woman may have the right to use land (secondary land tenure), but even this is based on her connection to her husband, and she cannot lend, sell, or heir the property that she uses. In addition, her secondary land tenure may be revoked based on divorce, widowing or failure to have sons. 24 Any claim that a woman might have to belongings, her home, or the land on which she lives only exists through her husband. Upon the dissolution of a marriage, or the death of a husband, a woman may be stripped of all her belongings and evicted from the land on which she has spent her life working.

In Zimbabwe in 1997, Venia Magaya, a 52-year-old seamstress was evicted from her home in Harare by her half-brother. Although the community court had designated her the heir after her father's death, the younger half-brother appealed to the magistrate court and won. Magaya appealed to the Supreme Court and lost by a unanimous decision based on 'customary law' that only men can inherit property. Supreme Court Justice Gibson Muchechetere said of the case, "Women's status is basi­cally the same as that of a junior male in the family."25

In Kenya, following the death of a husband, a woman is only allowed to remain on her land if she is either inherited by her brother-in-law (as discussed in the following section Women as Property), or "cleansed" by having sex with a social outcast to break her connection with the de­ceased partner. If a woman refuses both of these, she is expelled from her land to live in a slum and scavenge or prostitute herself for survival. Following a divorce or separation, a woman can lose not only her land, but the entire household, plus any money, livestock, or valuables she may have.26 The case is similar in Zambia, where tradition dictates that the husband's family take responsibility for his land after his death; origi­nally a way of taking care of his widow. In modern times this tradition has morphed into "property grabbing," in which the widow is often evicted and the family lays claim to everything, including the children.27

In some cases, modernization is hindering rather than helping the situation. In parts of East Africa, movements toward land titling and registration are reducing the few traditional rights that women have had to land through their marriage. Once the land is officially registered in a man's name, the few situations in which widows could have retained their land are nullified since women are not allowed to inherit property.28 In Kenya and Rwanda, the rising number of women marrying without bride price creates many 'unofficial' unions. In these situations, women lack the official right to secondary land tenure, and may be "chased away" at any time.29 Even in societies where women can traditionally own and heir land, this issue is increasingly relevant. For instance, Zambia's Akan people are increasingly ignoring the tradition of heiring to daughters and are instead passing on land to sons.30

In countries that do legally provide for female ownership, there is little hope for women to realize this right. When women attempt to secure their right to ownership in court, they are typically sent to courts of "customary law" where they are denied an overwhelming 80% of the time.31

On a most basic level, this violates the human right to own property as protected by not only the UN Universal Declaration of Human Rights (Article 17) but also by the ACHPR (Article 14), in which it is "recognized and guaranteed without distinction... such as... sex" (Article 2). Addition­ally it is a gross violation of the right to be protected against discrimina­tion as laid out in many human rights instruments including the ICCPR (Article 26), as well as the ACHPR which provides for equality before the law and protection from discrimination against women (Articles 3 and 18.3). More specifically, CEDAW (Article 15) dictates not only equality before the law, but additionally the right to conclude contracts and administer property. Finally, the inability to own property also consti­tutes a violation of marital rights. ICCPR (Article 23(4)) guarantees equal rights as to marriage, as well as during and at the dissolution of marriage. The Human Rights Committee, the UN body created to monitor the implementation of the ICCPR, has commented, in particular, that women should have equal inheritance rights to those of men upon the death of a spouse.32 Again CEDAW is even more specific, stating that states both spouses have the same rights as to ownership, acquisition, enjoyment and disposition of property (Article 16(h)).

The violation of these rights with respect to land tenure in Sub­Saharan Africa is creating a significant increase in women's vulnerability to HN transmission. Certainly women reduced to abject poverty who, in desperation, turn to prostitution are in the greatest danger. Other op­tions of "cleansing" and wife-inheritance, discussed below, are obviously risky alternatives as well. In addition, if a woman knows that leaving her husband will rob her of everything, she is much more likely to stay in an a marriage where domestic violence, lack of bargaining power for protected sex, or outright rape may be greatly increasing her risk of transmission. Though lack of property rights may seem unrelated to the AIDS epi­demic, it contributes to other issues such as wife inheritance, ritual cleansings, and economic and social insecurity that directly put women at risk. In areas where land tenure issues are most prevalent, HN infection rates are six times higher in young women than young men.33

Women As Property

The issue of wife inheritance mentioned above is not only a question of land tenure, but points to a much greater problem of the view of women as property. In many Sub-Saharan Africa countries, the tradi­tional practice of giving a dowry upon engagement for marriage is no longer the token of appreciation it once was, but has become so commer­cialized as to be called "bride price." Once used to strengthen familial ties, it now amounts to literally purchasing a bride as property. This analogy persists not only before, but also during and after marriage.

The concept that a wife has been purchased significantly increases domestic violence as a woman may be beaten or otherwise punished for unsatisfactory behavior. Women, once purchased, may be unable to leave violent or unsuccessful marriages unless the bride price is repaid by her family. This is obviously highly unlikely considering the financial situation of many families in the developing areas of Sub-Saharan Africa. Following the death of a husband, the fact that his family (all of whom contributed to the bride price) now "own" the wife, combined with the traditional view that a woman should have a husband, creates a situation in which the widow is taken as a wife or second wife by the deceased's brother, cousin, or uncle, etc. Originally a system created to protect a widow and her children from becoming homeless or without a breadwinner, today it has become a way for the men to lay claim to a woman and do with her as they please.34 If a woman is unwilling to be taken by the next-of-kin, she may be ostracized socially and economically or evicted from her land as discussed above.35

These practices violate international human rights laws protecting consent to marriage,36 equal rights as to marriage,37 and equality before the law.38 The Human Rights Committee has specifically interpreted the equal right to be a person before the law (ICCPR, Article 16) as prohibit­ing the inheriting of women as property by the family of a deceased husband. It has also stated that "equality of treatment with regard to the right to marry implies that polygamy is incompatible ·with this principle. Polygamy violates the dignity of women. It is inadmissible discrimina­tion against women. Consequently it should be defiantly abolished wherever it continues to exist."39

These violations are placing women at increased risk of infection. Women trapped in violent marriages, often subject to marital rape, are in danger as discussed above (Sexual Violence and Abuse). The issue of wife inheritance combines this potential for domestic violence with the increased sexual exposure to a second husband, often practicing po­lygamy. Consequently the tradition of wife inheritance is playing a large role in the spread of HIV in Sub-Saharan Africa.

The Economic Factor

The economic marginalization of women and girls is a violation of many rights guaranteed by the UN's International Covenant on Eco­nomic, Social and Cultural Rights (ICESCR), adopted by the General Assembly in 1966, and is contributing to the increased prevalence of HIV and AIDS in women. Both legal and de facto restrictions on women's employment exist in Sub-Saharan Africa, often relegating women to non­monetary sectors of the economy. This may impede a woman's right to economic independence, further locking her into a potentially dangerous relationship.

Employment restrictions may also force unmarried women, as well as those driven to poverty through land tenure or marriage issues, into prostitution. The dangers of this lifestyle are immense. Beyond the risk present in the sheer number of partners, is a common practice for men to pay more for unprotected sex. The result is extremely high infection rates of sex workers. Compared to a 22% infection rate in the general adult population of Zambia40, sex workers have an infection rate of over 68%.41 An overwhelming majority of women working in this industry do so out of economic despair. As Tomas Philipson and Richard Posner point out in their 1995 article "The Microeconomics oft he AIDS Epi­demic in Africa," "efforts to lessen the economic inequality between men and women in Africa could, by reducing the incidence of prostitution and strengthening the ability of women generally to bargain for safe sex, reduce the spread oft he disease."42

The impact of poverty on girls is hazardous as well. The concept of "sugar daddies" places a young woman in the arms of an older man in exchange for gifts, often as basic as food for her family. This problem is so prevalent that it is often included in AIDS education programs as a serious danger. These men, who frequently enjoy multiple partners, are seeking younger and younger girls as a result oft he spread of HIV. The risk for these young women is apparent, teenage girls are infected at rates five to six times higher than their male counterparts in many Sub-Sa­haran Africa countries.43 Girls are also at risk when they are orphaned or flee from terrible domestic situations. Ending up either with distant relatives or living on the street, these girls are at risk of abuse, rape and prostitution.

While measures could be put in place to prevent these dangerous situations, violations of economic and social human rights place women and girls at continued risk. An equitable right to work, as guaranteed in the ICESCR, Article 6, and the ACHPR, Article 15, and provided as well by the right to protection from discrimination in ICCPR Article 26 and ACHPR Article 18(3), would allow women to work towards economic independence thereby fostering the freedom to make decisions about their own protection from HIV. An adequate standard of living including food, clothing and housing, as protected by ICESCR Article 11 and CEDAW Article 14(2)(h), as well as social insurance as required by ICESCR Article 9 would prevent the need for women to stay in dangerous relationships for economic reasons or turn to prostitution for survival. With respect to girls at risk, ICESCR Article 10.3 and CRC Article 34 prohibit the sexual abuse or exploitation of children, including prostitu­tion. If girls were afforded these rights of protection from exploitation, as well as their right to State protection and care as orphans (CRC, Article 20), then the rape and abuse of street children, prevalence of child prostitution, and exploitation of girls by sugar daddies would not contribute so substantially to the spread of HIV.

Fighting Back

In addition to the substantial effects of the violations of women's human rights discussed here, other factors also contribute to women's infection with HIV by limiting their ability to fight for the recognition of these rights. A key example of this is discrimination in education. Within Sub-Saharan Africa, there seems to be acceptable gender equality in schooling up to level four (about age 8). However, beyond this point, female attendance is drastically lower than that of males for a variety of reasons. Often, when there is not enough money for school fees, families will choose to send only boys to school. When there is an ailing family member, as is increasingly the case with the AIDS epidemic, a girl is kept home to care for the invalid. In Zimbabwe, 70% of children pulled out of school for this reason are girls, with studies showing that they are in­creasingly called upon to become the primary caregiver of the house­hold.44 In addition, if a girl becomes pregnant she is not allowed to return to school, even after the birth, whereas if the father of the child is a student, his education remains uninterrupted.45

Women's lack of access to equal education, especially in the primary years, violates a number of international human rights conventions. The ACHPR simply states the right to education for every individual (Article 17). The ICESCR in Article 13 protects equal rights to education for all, and in Article 14 guarantees compulsory primary education. Article 10 of CEDAW does the same, additionally including in section (h) a provision for the reduction of female student dropout and the creation of programs for girls and women who have left school prematurely.

In addition to restricted access to education, women are also not afforded their right to participate in the State polity. As Shirin Rai points out in her article "Women and the State in the Third World," women in developing countries are separated from the State for many reasons. When States do not provide the healthcare, education, child-care and employment protections that Western welfare States do, women have far less interaction with the government. Information dissemination about the events in State politics is varied and unreliable so women tend to be unaware of areas of State legislation that may affect them. And lack of infrastructural power creates situations in which said legislation may never be fully implemented. For all these reasons, the State figures only marginally in the lives of Sub-Saharan Africa women.46 Even for women who do desire to become involved, there are often legal restrictions on women holding office, or even voting.

The ICCPR, Article 25, protects the right to take part in the conduct of public affairs, to vote and be elected, and to have equal access to public service. The ACHPR also ensures the right to participate freely in one's government and public service (Article 13). CEDAW, Article 7, ensures a woman's equality in political and public life as well, and Article 8 protects her right to represent her government internationally. Both legal restric­tions, as well as de facto psychological separation from the State prevent women from fully realizing these rights of participation.

Women's restricted access to education and limited participation in politics are profoundly hindering their fight for equal rights and the campaign against HIV/ AIDS. While education is shown to directly reduce the likelihood of contracting the virus, more importantly it pro­vides women with knowledge of their rights, empowerment for decision­making, and the ability to achieve economic independence, all of which impact infection rates exponentially. When women are denied these opportunities, they are even less likely to participate in politics or activ­ism to better their situation. Pervasive sexism and "customary law" remain strong, as women are not educated concerning their rights. Without the proper education, economic stability, infrastructural support and availability of information, women see their options for recourse with the State and their ability to achieve change as very limited.47 Ac­cording to Human Rights Watch, even those that try to fight are often ignored by their governments and traditional leaders who refuse to "interfere with traditional culture."48 If women are not empowered to demand their human rights, the violations will continue and will consistently create higher levels of HIV infection.

States' Obligations

It is now clear that the rampant spread of this epidemic is closely tied to violations of the human rights of women. States cannot make progressive strides toward abating this disease without fulfilling their obligations to protect these rights.

Within the international instruments mentioned here, each guaran­tee of a right is accompanied by obligations of the State not only to respect the right and create the infrastructure and institutions that make full realization of the right possible, but also to protect citizens' rights from being violated by others. According to international law, States are held accountable for rights violations by private citizens if the State fails to prevent the violation or carry out a proper response with due diligence.

States are obliged to ensure that all laws governing property, inher­itance, education, public service, and marriage and reproductive rights are non-discriminatory and to abolish all existing laws, regulations, customs and practices that discriminate. These include, inter alia, wife inheritance, sexual obligation in marriage, prostitution, property rights, and restrictions on employment and political participation. States must also criminalize all violations of bodily integrity committed by an inti­mate partner or otherwise, such as abuse and rape as well as implement the infrastructure to enforce such legislation. Judicial systems need to be made aware of the issues facing women and must abide by impartiality so that violated women have proper recourse and perpetrators are pun­ished. Regulatory agencies must be created to ensure that common discriminatory rules are abolished such as the requirement of a husband's permission for a woman to attend a reproductive or HIV clinic, or the expulsion of pregnant girls from school.

Yet legislation, criminalization and regulation are not enough.

Often it is necessary, as stated in CEDAW, Article 5, to "modify the social and cultural patterns of conduct" to eliminate all practices based on the idea of inferiority of either sex. This is particularly relevant to the rights violations discussed here and may include widespread information campaigns to create awareness, promotion of new ideals of equality, and other behavior modification tactics. As the UN Special Rapporteur on Violence against Women stated, truly protecting women from violence will require, inter alia, the documentation of incidences, education and training of State personnel, and funding of shelters and other direct services.49 Awareness and education campaigns will also be necessary to change cultural perceptions of the balance of power in marriage, women's rights to their reproductive health, and the concept that women are not property to be bought, sold, or inherited.

In some cases States may be obliged to provide goods and services beyond such awareness and social change programs. For instance, in order to promote certain economic rights, States must implement, progressively and to the best of their abilities, social welfare and food programs, shelters for orphans, and employment programs for women to facilitate their economic independence that is so crucial to their protec­tion. Only when States fulfill these responsibilities, along with the legal and social awareness obligations, will they begin to realize the ability to protect the most crucial right in the face of HIV, the right to health.


Because the human rights violations discussed here contribute to HIV infections, each violation is also an affront to the right to health. The human right to health is delineated in several major international instruments. The ACHPR, Article 16, enjoins States Parties to take necessary measures to protect the health of their peoples so that every individual can enjoy the best attainable state of physical and mental health, the right to which is guaranteed also by ICESCR, Article 12. Section 2( c) of this Article specifically obliges States to take steps to prevent, treat and control epidemic, endemic, occupational, and other diseases. Additionally, CEDA W requires States Parties to ensure equal access to health care for men and women, including family planning and pregnancy services, granting free services when necessary (Article 12). The UN Committee on Economic, Social and Cultural Rights, the moni­toring body of the ICESCR, interpreted the right to health within the context of HIV/ AIDS to include the availability, acceptability, and acces­sibility of health care centers, goods, services, and functional public health States are clearly obliged to create the conditions necessary to assure women's access to healthcare and health education that are so vital to combating the spread of HIV in women. The Commis­sion on Human Rights, one of the six major functional commissions of the UN, even calls upon States to pursue policies that would promote the availability of pharmaceutical products related to HIV/ AIDS as a funda­mental part of promoting the right to health.-51 Presently, even the wealthier Sub-Saharan Africa countries, such as South Africa, fail to provide the anti-retroviral prophylaxis that is crucial particularly for victims of rape.52 But again, legislation and the availability of supplies is not enough. In order to truly combat this epidemic as is mandated in these instruments, States must ensure that women have access to health information, as well as training health professionals to respond to marginalized groups, promoting and supporting institutions providing counseling, and disseminating information concerning harmful tradi­tional practices.

All of the State's obligations to respect, protect and promote women's human rights are clear precursors to each State's responsibility to ensure the health of its citizens. Certainly protecting health requires promoting social determinants of good health such as gender equity.53 Efforts to control the AIDS epidemic hinge on States fulfilling all obliga­tions related to women's human rights. Only when women achieve a fuller realization of their rights will they be able to defend themselves against the spread of HIV and AIDS.


Women are often viewed as transmitters of the HIV virus, either as prostitutes or through mother-to-child transmission. In this way, their vulnerability to infection based on their status as women and their human right to health become invisible. Only recently has it come into international focus that HIV/AIDS is a women's human rights issue. The Havana Declaration 2003, published during the International Forum on HIV/AIDS/STDs in Havana, Cuba, concluded that even after 20 years of the AIDS epidemic, a human rights perspective still has not been in­cluded in public policies. The Declaration calls on governments to integrate a human rights framework in dealing with the HIV/A IDS epidemic54. Within this framework, we see that the need to end discrimi­nation and violence against women is crucial to national strategies of preventing and fighting AIDS.55 Political, educational and economic marginalization of women, sexual exploitation of women and girls, inequality in marriage and property rights, and violence in all its forms are pushing the female population of Africa directly to the center of the AIDS crisis. Only when States recognize the importance of and fulfill their obligations to women's human rights will they have the tools to truly combat this increasingly fatal epidemic.