Victory for Women in Namibia

In a landmark decision, Namibia’s High Court has ruled that the government violated the rights of three HIV-positive women when medical personnel at public hospitals sterilized the women without their consent. This is the first case of its kind in southern Africa, and as multiple international news outlets reported, it could open the flood gates for similar lawsuits in countries across the continent.

The decision written by Judge Elton Hoff was the culmination of a fight that began in 2009, when the Namibian chapter of the International Community of Women Living with HIV uncovered the practice during a series of workshops. In those workshops, a number of women mentioned that they had been sterilized. They further shared that though they did not want to be sterilized, they did not see the sterilization as a violation of their rights since they believed that HIV-positive women did not deserve to have children.

Fast forward three years and it’s clear that that attitude has changed tremendously as more women have learned of their rights, thanks to this lawsuit. In anticipation of the court's decision, on July 31 the streets of Windhoek (Namibia’s primary city) and the courthouse itself were flooded with HIV-positive women demanding that health care workers treat them fairly and respect their fundamental rights under Namibian law. Their demands were affirmed by the High Court later that day.

The case before the High Court centered on three women who were coercively sterilized. The women were referred to in the court proceedings only by their initials to protect their privacy.

The first woman was 26 years old when she was sterilized. She had previously given birth to a healthy child. While she was in labor, she was given a number of forms to sign. One of the forms was a consent form for sterilization. She never received information regarding the nature and consequences of sterilization. She only learned of the sterilization after she delivered her child.

The second plaintiff had had two healthy children when she found out she was pregnant with her third. She was informed by medical personnel that she needed to have a caesarian section, but that that would only be performed if she agreed to a sterilization. She eventually went to the hospital and while in severe pain was provided a number of documents to sign by medical personnel. She was not aware of the contents of the forms.

The third plaintiff was in her 40s when she was sterilized. She was also made to sign consent forms while in pain and was not informed of the contents of the forms. She only learned that she was sterilized when she overheard two nurses discussing her sterilization.

The three women had argued before the court that this treatment violated their rights under common law and the Namibian Constitution. As the High Court stated in its decision, the primary issue in the case was not whether the public medical personnel “had obtained…the plaintiffs’ written consent but the plaintiffs’ informed consent prior to the respective sterilization procedures performed on them.” (emphasis added)

The decision spends a great deal of time on the factual issues, but very little time on the legal issues raised in the case. This is unsurprising given that the primary disagreement in the case was not about the legal standard—both parties agreed on the legal standard—but on whether informed consent had actually taken place in the three cases.

The court held unequivocally that consent for sterilization cannot be obtained when women are in labor or in pain. In reaching its decision, the court clarified what was needed for informed consent: consent must be given freely and voluntarily; the nature, consequences, and risk of the procedure must be understood and accepted by the patient; and the patient must be provided with information on the advantages and disadvantages of alternative methods of contraception. In these three cases, the court found that no informed consent was given for the procedures, and the women’s common law rights had been violated. The court failed to address a number of the constitutional claims raised in the case, only finding that there was insufficient evidence to find for the women regarding a claim that the practice was discriminatory as it particularly targeted women living with HIV.  

This decision is a victory for women living with HIV in Namibia. It makes clear that women living with HIV must be treated with dignity in public hospitals. However, much work still needs to be done to ensure this decision is implemented and has a broader impact. The Namibian Women’s Health Network has documented approximately 40 cases of other women living with HIV who have been subjected to coerced sterilization. The network, along with Harvard Law School’s International Human Rights Clinic and Northeastern Law School, recently released a scathing report examining a slew of sexual and reproductive rights abuses that women living with HIV continue to face in Namibian health facilities. Not only do other women in similar situations deserve justice, but the Namibian government must take steps to meaningfully investigate all claims, ensure those responsible are held to account, and work towards ending the coerced sterilization of HIV-positive women.

As the mass mobilization at the courthouse demonstrates, this case marks a turning point for women living with HIV in Namibia, who have courageously stood up to medical personnel and publicly demanded their rights. This will be the lasting legacy of this case.

6 Comments

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The only reason authorities would resort tothe barbarism of forced sterelization of women living positively is either their own ignorance or reluctance to take the longer route of developing and supporting PMTCT programmes in their countries!

It is unashamedly inhuman that human beings should be made to suffer the consequences of ignorance and attempts at quic win solutions by authorities-as in forced sterelization!

It is really not to be expected in the mdern day and age that these kind of practises are still tolerated in some countries.

Who is behind this practice ? Is this an implemantation of Kissenger's culling of the world population ?

It is a long time this case was presided,and it is nice that women can now fight for their rights,i will encourage other women in other part of africa to stand up an fight this scourge.viva nambian women

Congratulations to the brave women who were a part of this lawsuit! This court decision can't begin to right the wrongs that were done but hopefully it will help prevent this from happening to other women in the future.

The Uganda Public Rescue Foundation (UPRF) is a non-government organization that has its major objectives of fighting for Human rights of Minorities and indigent persons, improving access to justice for all those charged with criminal offences in fulfillment of constitutional requirements fight for children’s, men, Disabled, and women rights that has been infringed and sensitization of masses against HIV/AIDS infection in Uganda. The foundation strives to realize this important goal by offering legal services to poor people, especially those charged with serious and complex criminal offences in the higher courts and the chief magistrate’s courts.

The jurisdiction for UPRF is based on evidence that the majority of people who are held in Uganda’s prisons charged with criminal offences and those in police cells on suspicion of having committed crimes are not only indigent but also ignorant of their rights. Many of those on remand lack knowledge of how to apply for bail. In some instances police investigations are allegedly carried out for unnecessarily and often unconstitutionally long periods. The living condition of many prisoners leaves a lot to be desired. These prisoners are poorly fed and lack uniforms and blankets. They are subjected to have labour and other forms of violation of prisoners’ rights like living in congested cells. To be assured of justice under the above circumstances, the prisoners need legal services. However, available legal services from the private bar are expensive and therefore beyond the means of these poor people.

Congratulations to all involved on this landmark decision! It is indeed an inspiration for women living with HIV across the continent and beyond who have been sterilized without their consent and experience health facilities not as places of care and support, but rather of demeaning treatment and violation of basic rights. The Namibian High Court's ruling sends a critical message that this no longer can continue with impunity.

The Court's decision also affirms that consent is a process, requiring information and discussion with a patient, and that a signature on a piece of paper is not enough.

The Court, however, unfortunately did not hold that this practice was discriminatory and that it particularly targeted women living with HIV. This shortcoming echoes the two recent European Court of Human Rights decisions which found forced sterilization of Roma women in Slovakia to constitute a violation of freedom from torture and inhuman and degrading treatment, as well as the right to private life, but do not address whether there was a violation of the right to non-discrimination (please see http://www.soros.org/voices/vc-v-slovakia-step-toward-justice-roma-women). This misses an important dimension of this abuse.

Hopefully, the government of Namibia will see the Court’s decision as a call to action. Namibia can lead the way for other countries in taking responsibility for current mistreatment of women living with HIV by putting in place measures preventing sterilization without consent and proactively investigating and addressing violations. We hope to then see a world where ALL women enjoy full sexual and reproductive rights.

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