A Critical Analysis of Efforts to Mainstream Gender Into Kenya's HIV/AIDS Strategy
By Juda Strawczynski
Introduction
“While HIV/AIDS is a health issue, the epidemic is a gender issue.”[1]
The HIV/AIDS pandemic was initially seen solely as a health issue. Many governments consequently developed policies aimed at protecting public health but that violated human rights.[2] HIV/AIDS laws and policies frequently violated civil and political rights; for example, compulsory testing and mandatory reporting requirements violated privacy rights, and compulsory treatment regimes violated rights to security of the person and principles of non-discrimination.[3] Many of these early legislative efforts either disproportionately negatively affected women, or targeted ‘high risk’ women, (such as female prostitutes or women engaging in sexual relations with men who had had more than one partner,) which re-enforced stigma and contributed to women’s discrimination and vulnerability.[4]
Since then, the gendered nature of HIV/AIDS has become increasingly recognized, which has led to an increased interest in using law as a means of addressing the pandemic’s effects on women.[5] It is generally held that law serves as one instrument that, combined with other initiatives, can be used to address women’s rights.[6]
Kenya recently recognized that both legal and extralegal measures are required to address the gendered nature of HIV/AIDS. A 2002 report, entitled Mainstreaming Gender into the Kenya National HIV/AIDS Strategic Plan 2000-2005 combines law reform with policy recommendations to develop a gendered approach to the pandemic.[7]
Mainstreaming Gender represents a gendered policy shift that was years in the making. During the late 1990s the government of Kenya asserted strong political leadership in the fight against HIV/AIDS. In 1999 the government established the National AIDS Control Council (NACC) to coordinate a multi-sectoral response to the HIV/AIDS crisis.[8] By 2000, the NACC published the Kenya National HIV/AIDS Strategic Plan 2000-2005 (KNASP). Many gender dimensions of HIV/AIDS were recognized while KNASP was being developed; however, the KNASP did not recommend gender-sensitive law reforms or incorporate programmes that explicitly focused on gender. In 2001 the NACC formed a Technical Sub-Committee on Gender and HIV/AIDS Task Force, which was asked to develop guidelines and a strategic framework to engender the 2000-2005 Strategic Plan, and in November 2002 the Technical Sub-Committee released Mainstreaming Gender. The report was supported by both the NACC and the Office of the President. It is accepted as aspirational government policy with respect to women’s rights and HIV/AIDS.
Mainstreaming Gender marked a major step forward in the recognition of the
gendered nature of the HIV/AIDS crisis. It has been used by the international donor community as a case study in integrating gender into national HIV/AIDS programmes.[9] However, the on paper commitments need to be assessed according to whether the commitments have translated into action on the ground. This paper critically evaluates both Mainstreaming Gender itself, and Kenyan efforts to implement the legal and policy reforms described within the document. It is argued that the Mainstreaming Gender document provides a strong first step towards engendering HIV/AIDS programming. It recognizes that legal reforms are necessary to recognize the gendered nature of the epidemic, and to protect vulnerable populations. Moreover, the document recognizes that law is only one tool to be used in the fight against HIV/AIDS, and that other policy tools should be used to compliment law reforms. However, it is also argued that the Mainstreaming framework has its shortcomings. In addition, problems in implementing both HIV/AIDS programming generally, and gender-sensitive initiatives specifically, have delayed and occasionally derailed the law reform process and the engendering of HIV/AIDS programs.
Part I demonstrates that Mainstreaming Gender was part of a broader regional and international legal movement towards the recognition of women’s health rights. The section also highlights the risk that formal commitments with strong aspirational value frequently remain unimplemented. Parts II provides an overview of the strengths of the Mainstreaming Gender. In Part III Mainstreaming Gender is critically assessed, and the weaknesses of the framework are outlined. Part IV contrasts the recommendations contained within Mainstreaming Gender to the mixed success in reforming HIV/AIDS programming to better reflect the gendered nature of the epidemic. Part V provides legal and policy recommendations to improve the development and implementation of gendered HIV/AIDS strategies within Kenya.
It is hoped that this paper will highlight the role that law and legal institutions can play in combating the gendered nature of HIV/AIDS, and that the proposed legal and policy recommendations will assist in the preparation of Kenya’s next HIV/AIDS Strategic Plan,[10] and in improving efforts to engender the fight against HIV/AIDS both in Kenya and globally.
PART I – SITUATING MAINSTREAMING GENDER WITHIN AN INTERNATIONAL FRAMEWORK
Mainstreaming Gender reflects an international movement towards the recognition of a right to health free from gender-based prejudice or discrimination. Alicia Ely Yamin’s overview of the international right to health is particularly helpful.[11] She suggests that international legal sources have recently “gone far in clarifying the normative content of the right to health and in eroding arguments that the right to health cannot be a fundamental, and enforceable, principle in law and policy making”.[12]
Yamin notes that international law has established a right to life that requires the state to eliminate epidemics.[13] This right imposes a positive obligation on states to fight the spread of HIV/AIDS. In addition, Yamin demonstrates that the authoritative statement for the right to health found in Article 12 of the International Covenant on Economic, Social, and Cultural Rights (ICESR) has been further developed by General Comment 14 of the Committee on Economic, Social and Cultural Rights.[14] Yamin further notes that the general right to health is also found in Article 16 of the African (Banjul) Charter.[15]
Yamin also explores how the principle of non-discrimination has recently developed to protect HIV/AIDS patients from stigma, and to secure their right to access treatment and medication regardless of gender.[16] The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) establishes that state parties must eliminate discrimination against women in the area of health care.[17] Yamin explains that the CEDAW Committee’s General Recommendation on “Women and Health” requires that State Parties ensure that women are free from discrimination in accessing health information, education and services.[18]
In addition to the sources of protection noted by Yamin, the CEDAW Committee General Recommendation 15: “Avoidance of Discrimination against Women in National Strategies for the Prevention and Control of Acquired Immunodeficiency Syndrome” should be stressed.[19] Recommendation 15 calls on state parties to pay particular attention to the needs of women and other vulnerable groups, and makes wide-ranging recommendations, from having states collect information on the effects of AIDS on women, to developing safeguards to ensure that women participate in the primary health care system, to developing means of preventing discrimination against HIV-positive women. This General Recommendation is worth highlighting as it relates directly to National HIV/AIDS Strategies, and Mainstreaming Gender acts as Kenya’s method of incorporating gender into theKenya National HIV/AIDS Strategic Plan.
It is clear that sources of international law including UN Resolutions, international Treaties, regional agreements and recommendations from UN Treaty-Monitoring Bodies have developed a right to health that increasingly recognizes the rights of people suffering from HIV/AIDS. Kenya is a party to the above-mentioned international legal instruments.[20] Although Mainstreaming Gender does not specifically incorporate any international legal materials, as the section below indicates, the document builds on the rights being espoused and developed through international mechanisms.
Yamin suggests that, “it can no longer be argued that the content of the right to health is unduly vague for implementing legislation or enforcement, or that it sets out merely political aspirations.”[21] This comment reflects how the right to health has been criticized as being aspirational rather than being a non-derogable right. When examining Mainstreaming Gender, it must be asked whether the Technical Sub-Committee has developed a framework that is likely to become a non-derogable, actionable framework, or whether the recommended strategies are aspirational in nature.
PART II – STRENGTHS OF MAINSTREAMING GENDER
This section provides an overview of Mainstreaming Gender and its successes.
i) A Successful Process
The process of creating Mainstreaming Gender can itself be regarded as a success story. First, a group of technical experts needed to be established. The very task of assembling the necessary “core group” was seen as a success in itself.[22] Both the Technical Sub-Committee and the editorial committee were composed of members of the domestic government, the University of Nairobi, local non-governmental organizations (NGOs), as well as representatives from international institutions such as the United Nations and the World Bank.[23] In addition to constituting a committee of relevant expertise, the mixture of international and domestic participants created an environment that would allow for two-way information exchange.
Second, and perhaps more importantly, the document grew out of a highly participatory consultative process. Siparo notes that the Technical Sub-Committee met with 48 stakeholders, ranging from government ministries and donors to NGOs and people living with HIV/AIDS, and meetings varied from workshops to grassroots consultations.[24]
The document serves both as a clear recognition of the gender aspects of the HIV/AIDS pandemic, as well as a road map for the development and implementation of “proactive engendered” programs to be administered under the Kenya National HIV/AIDS Strategic Plan for 2000-2005.[25]
ii) Recognizing the Gendered Nature of HIV/AIDS
Gupta suggests that the essential first step towards overcoming gender inequality is, “to recognize, understand, and publicly discuss the ways in which the power imbalance in gender and sexuality fuels the epidemic.”[26] Mainstreaming Gender is Kenya’s recognition of the gendered nature of the HIV/AIDS pandemic, and of the power imbalances that drive the pandemic. Itserves as a clear, forthright account of the disproportionate effect of the HIV/AIDS pandemic on women and girls. It also explains how a lack of gender sensitivity in government policies can lead to a further feminization of the HIV/AIDS crisis. Although academics and advocates had previously noted the gender dimensions of HIV/AIDS,[27]Mainstreaming Gender represents a major policy piece that documents and accepts gender inequalities as a major issue to be addressed.
The document provides HIV/AIDS data by gender to reveal that by numbers alone the pandemic disproportionately affects women and girls. The paper’s Background section notes the barriers of sexual violence, discrimination based on gender, and cultural norms may place women at greater risk for HIV/AIDS.[28] The paper further suggests as an introductory note that women bear the greatest burden of the pandemic, as women serve as caregivers, and girls are forced to leave school to help in the home.[29] By taking these gender roles as given, the Technical Sub-Committee was able to then advance the discussion of the effects of gender on the pandemic. The report provides a succinct overview of gender and vulnerability to HIV/AIDS. The Technical Sub-Committee noted that gender vulnerability factors to HIV/AIDS include social, cultural, economic, and religious factors.[30] It was acknowledged that women face several overlapping barriers to sexual autonomy.[31]
The Technical Sub-Committee relied on two field studies (conducted in 2001 and 2002) which served to reveal the determinants of gender vulnerability to HIV/AIDS in the Kenyan context.[32] These studies indicated that although there are several determinants of gender vulnerability that always are at play, gender-based policies will have to be tailored to be effective, as the lead determinants may vary by region and by community groups within a given region.[33] The case studies were an important first step as they bridged the theoretical concepts of the interconnection between gender and HIV/AIDS with actual communities and regions within Kenya. These studies can be seen as another means by which the Technical Sub-Committee affirmed that gender issues permeate the HIV/AIDS pandemic not just in a theoretical academic sense, but in a sense that affects Kenyan society at all levels.
Mainstreaming Gender recognizes that gender roles, including power imbalances between men and women, contribute to the spread of HIV/AIDS, and that the containment of the pandemic will require that gender issues be incorporated into HIV/AIDS strategic planning. To that end, the Technical-Subcommittee provided recommendations for developing engendered policy decisions.
iii) Providing a Road Map for Engendering HIV/AIDS Programming
The Mainstreaming Gender analysis recognized that Kenyan society is shaped at all levels by gender. Men have greater power both within heterosexual relationships and within broader economic, political and social spheres. But the authors also noted that since gender is learned it can also be unlearned.[34]Mainstreaming Gender therefore sets out both legal and extralegal policies that aim to redefine gender within Kenyan society.
The paper notes that breaking the present gender roles will require a “partnership of responsibility” between men and women.[35] Men will need to use their current positions of power in order to advocate for changes in gender roles, while women will need to become economically and socially empowered.[36] Major societal changes will be necessary in order to respond to the gendered HIV/AIDS pandemic.
Mainstreaming Gender recommends the explicit incorporation of gender issues into all HIV/AIDS policies, and provides guidelines as to how gender can be mainstreamed into the five priorities identified in Kenya’s National HIV/AIDS Strategic Plan 2000-2005. The policy recommendations range from relatively minor alterations to existing policies, to complete social change.
Extralegal Reforms
In the area of Prevention and Advocacy, the report recommends, among others, the improvement of economic opportunities for women, support for girls’ education, and the engendering of all technical aspects of HIV/AIDS initiatives.[37] In the area of Treatment and Support Mainstreaming Gender recommends that policies be developed to provide equitable access to ARVs, and that men and women share the burden of home-based and community care.[38] The Mitigation of Social and Economic Impacts of HIV/AIDS on men and women is to be engendered by addressing stigma, and by supporting men who are working to mitigate the social and economic impact of HIV/AIDS.[39] It is further recommended that gender-sensitive indicators be included, that disaggregated data be provided, and that regular gender audits of HIV/AIDS programs are conducted to mainstream gender into the Monitoring, Evaluation and Research priority.[40] For the fifth priority area, Management and Coordination of HIV/AIDS programs, the Technical Sub-Committee recommended that gender training be provided to frontline HIV/AIDS workers and policy analysts, that the National AIDS Control Council engender all of its budgets, and that best practices be shared between partners.[41]
Legal Reforms
Mainstreaming Gender recommends legal reforms within the five priority areas. The Technical Sub-Committee recommends that property and inheritance rights be reformed to promote the economic independence of women.[42] It also proposes that the government engage in law reform in the areas of family law,[43] and in the area of prostitution and the human rights of sex workers.[44]
Mainstreaming Gender also recognizes the need to receive full consent from participants in HIV-programming, testing and research. The Technical Sub-Committee recommends the promotion of gender-sensitive voluntary counseling and testing, and that mother-to-child transmission programmes require fully informed consent for HIV testing.[45] The authors also recommend that protocols be developed to “ensure that all participants in all HIV/AIDS related research, especially vulnerable groups of women and children, have given informed consent and know that their rights are protected.”[46]
As the Critique section below will indicate, the general nature of these recommendations is a shortcoming of the Mainstreaming Gender document.
iv) Gupta’s Framework for Evaluating Gendered Intervention
Gupta developed a framework for evaluating the gender components of HIV/AIDS interventions. Interventions that reinforce existing stereotypes likely lead to further stigmatization, vulnerability and sexual violence, and should therefore be avoided.[47] Gender neutral strategies make no distinction based on gender. While Gupta suggests that these strategies are likely to be ineffective, they are “better than nothing” and do no harm.[48] Tallis, however, suggests that gender neutral strategies may cause harm.[49] She returns to Gupta’s examples of gender-neutral messages such as ‘stick to one partner’. Tallis suggests that these messages could increase women’s vulnerability to HIV infection. She presents the case of a woman who is faithful to her partner and believes that she is safe from infection, when this may not be the case.[50] Gupta’s remaining three responses positively incorporate gender. Gender-sensitive programming, such as providing women with female condoms and microbicides, meets the different needs of different genders.[51] Transformatory responses seek to reduce vulnerability and stigma, and address underlying beliefs in order to transform gender relations.[52] An example is Men as Partners programming that involves men in open discussions that allows for understanding of women’s sexuality and gender, and thereby reduces violence against women.[53] Approaches that empower aim to reduce power imbalances between men and women by providing vulnerable groups such as women with information and opportunities to participate in decision-making.[54] As an example, Gupta refers to an Indian program in which sex workers developed their own group identity and became decision-makers.[55] Gupta notes that gender-sensitive, transformatory, and empowering approaches are not mutually exclusive; rather, they must occur simultaneously.[56]