Changes to HIV and sex work laws in Malawi

Africa Regional Correspondent

A Member of Parliament in Malawi, Frank Mwenifumbo, has urged the government to legalise sex work and ensure there are different support systems around it. The MP claimed a lot of people in the country rely on the sex trade. “We see young ladies and young men standing along our streets for this purpose. Why can we not legalise it? We are in denial and yet it is there in the open that we have people depending on commercial sex” he said.

The MP added that, with legalisation, Malawi would have a designated area for registered sex workers who, in turn, would undergo periodic health tests as one way of controlling new HIV infection. He said the country should legalise sex work “so that for them to be given a certificate to be a sex worker they must agree to compulsory testing”. Mwenifumbo made the remarks while contributing to the HIV and AIDS (Prevention and Management) Bill however, his proposal was not included in the Bill that was passed into law.

Sex workers around the world have voiced their concerns about the negative impact of the legalisation of sex work, including condemning mandatory testing and treatment as a breach of human rights.

Mr. Mwenifumbo also urged Ministry of Health and to create a database for those who are on anti-retroviral treatment (ART) to be captured in the ministry’s database with the national IDs, which he claims would help curb the spread of HIV. 

The MPs demand that the government recognise and legalise sex work was opposed by the members of HIV sector. During the commemoration of the  World AIDS DAY that falls annually on December 1st, Priest Mpemba and Police model station HIV/AIDS Coordinator said that legalisation of sex work is a policy issue which the county’s leadership must treat carefully in terms of how the society perceives sex workers.

On 2nd December, Malawi’s Parliament passed a Bill removing the criminalisation of HIV, which was met with praise from women’s and sex worker-led groups in the country. Clara Banya of the International Community of Women Living with HIV (ICW) Malawi, said: “mandatory testing and treatment, and criminalisation of HIV transmission and exposure, are counter-productive to reaching the goals of the HIV response in Malawi. We are glad our voices have been heard through the work of organizations like ICW Malawi, the Coalition of Women Living with HIV/AIDS (COWLHA), the Female Sex Workers Association, the Women Farmers Coalition, and others. Human rights have prevailed today in Malawi”.

The Members of Parliament debated amendments to the Bill advanced by Members and its HIV Committee. Minister of Health, Hon. Atupele Muluzi, urged Members to endorse these endorsements, emphasising that criminalising HIV had negative public health implications. Parliament voted to support all the amendments proposed by the HIV Committee and, in addition, voted to delete a contentious provision relating to “deliberate infection” with HIV. After a second reading, the Bill was passed subject to these amendments.

Even though the activists acknowledge the urgent need to work closely with key populations, in order to advance human rights and the HIV response in Malawi, and also acknowledge that the Bill does not speak to key population directly, they celebrated the Bill as it removed the legal barriers that were initially proposed.

“While some provisions remain that are perplexing and of which we should remain wary (such as those placing duties on people living with HIV to adhere to treatment), Parliament’s acceptance of the amendments in the Act is a victory for citizens and supporters of human rights in Malawi who resisted efforts to enact the Bill in its original form at all costs,” said Annabel Raw, health rights lawyer at the Southern Africa Litigation Centre (SALC).