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Windhoek (AFP) July 30, 2012
A Namibian court ruled Monday that three women with HIV were sterilised without their informed consent, but dismissed their claim that the operation was performed because of their condition.
"The first claim by the three plaintiffs, (that) they were sterilised without their consent, succeeded," Judge Elton Hoff said in a landmark ruling.
But the claim that "they were sterilised because they were HIV-positive, is dismissed."
"The onus is on the plaintiffs to prove this," Elton added in the court room packed with women, and men, wearing T-shirts with the slogan "Non-negotiable - my body, my womb, my rights."
The three plaintiffs are among 16 women suing the Namibian government for 1.2 million Namibian dollars ($145,000 US, 118,000 euros) for allegedly sterilising them without their consent because they are HIV-positive.
The tubal ligation procedures were conducted between 2005 and 2009.
Damages will be awarded to the three, whose ages range from the mid-20s to the 40s. The amounts will be decided at a later date.
In the first such court case in Africa, one of the women recounted during the hearing how while in labour she was approached by a nurse who handed her a document to sign, saying it would authorise a Caesarean section.
The woman, whose name has not been divulged at the court's order, said she only found out later that she had been sterilised when she overheard two nurses discussing her case in the hospital ward.
She claimed the nurses had explained she had been sterilised because she carried the AIDS virus, which infects about 13 percent of Namibians aged 15 to 49.
Legal rights activists hailed the court's decision, saying the three cases were just "a tip of the iceberg" as dozens of other cases had been documented of coerced sterilisation in public hospitals in violation of the women's rights.
"This decision is the first step in ensuring that no other women will be coercively sterilised in public hospitals in Namibia," said Priti Patel, a deputy director with the Southern African Litigation Centre (SALC).
The women's lawyers argued that the sterilisation was discriminatory on the basis of their HIV status.
This "sterilisation amounted to discrimination," said Nyasha Chingore of the SALC told AFP.
"It is unfortunate that the judge did not find the sterilisations were done specifically because they were HIV-positive," as many cases had been told that it was procedural to sterilise women who are HIV, said Chingore.
"We are satisfied with the outcome of the court case in principle because we proved that women in Namibia were sterilised without their consent," one of the women's lawyers, Amon Ngavetene of the Legal Assistance Centre (LAC) told AFP after the ruling.
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