The case in which two Zambia Air Force officers were allegedly discharged from work due to their HIV positive status closed finally on 27th May 2010, with a precedent setting judgment.
The petitioners, Stanley Kingaipe and Charles Chookole, claimed they were tested for HIV without their consent during an annual medical check-up in 2001. Without knowledge of the positive result, both men were placed on Anti-Retroviral Drugs (ARVs) without being informed of the nature of the medication they were given nor of the consequences of not regularly taking the medication.
Before their dismissal they had appeared before a Medical Board which found them to be permanently unfit to perform all forms of military duties and recommended their discharge on medical grounds pursuant to Regulation 9 (3) of the Defense Force ( Regular Force) (Enlistment and Services) Regulations. They had desk jobs at the time of their dismissal. The officers argued that their dismissal was based on their HIV status. The officers were also suing the military for damages to their mental and emotional health and until recently were seeking reinstatement.
Before the case came to trial, scientific opinions were gathered from a Microbiologist, Psychologist and Physician among others, and these experts were engaged to furnish the court with expert opinions.
The three primary legal issues in the case were:
1. The mandatory HIV testing of Chookole and Kingaipe and the failure to inform them of the results of their HIV test.
2. The failure to provide them adequate information prior to placing them on anti-retroviral treatment.
3. The dismissal of Chookole and Kingaipe from the ZAF due to their HIV status.
Judgment was passed by Honorable Mrs. Justice Muyovwe in Open Court on the 27th May, 2010 and the holding was that it was not in dispute that after appearing before the Medical Board the petitioners were among those who were ordered through a Station Routine Order to submit to a medical check up which included a blood test. That although the Employment Act (CAP 268) in section 34(1) allows applicants for employment to undergo compulsory medical examinations, if any test is done without a person's consent, then it means that the test is mandatory.
The High Court recognized that extracting a blood sample from any person without his or her consent infringed individual rights.
It was clear that mandatory testing violated Zambia's international and regional legal obligations. It was also very likely that the ZAF's decision to provide the clients with ARVs without informing them of their test results, the side effects of the drugs, and how often to take them, among other things, violated their right to life.
In this regard, the High Court was convinced and found that the petitioners were subjected to mandatory testing without their consent and that no pre and post counseling was done. As such the court determined that the petitioners' right to protection from inhuman and degrading treatment under Article 15, and the right to privacy under Article 17 of the Constitution of Zambia were violated. The Judge also ruled that mandatory HIV testing was unconstitutional. The officers’ demands were however unsuccessful on the issue of reinstatement and on whether they were discriminated against based on their HIV status.
After two years of petitioning the High Court, it was finally determined that the Petitioners be awarded damages for the mental anguish and emotional distress that they were subjected to as a result of the Zambia Air Force's decision to subject them for compulsory HIV testing.
The judgment was well received by both the petitioners and the organizations that supported them. The Legal Resource Foundation (LRF) litigated the case while the following organizations were actively involved and provided technical support: The Network of Zambian People Living With HIV (NZP+), Human Rights Commission, Treatment Literacy Campaign (TALC), Southern African Litigation Center (SALC), SALAN and the Zambia AIDSLaw Research Advocacy Network (ZARAN).
On the day of the judgment, well wishers, including representatives of these organizations, gathered in support of Kingaipe and Chookole. Clad in black T-shirts the supporters sang songs of solidarity. After the judgment ended, the supporters marched to the Zambia National Broadcasting Corporation (ZNBC), Livingstone, where a statement was read by the NZP+. The Law Association of Zambia (LAZ) in a brief statement said they were happy with the judgment as it was a good starting point in the protection of the Constitutional and Human Rights of people infected and affected by HIV and AIDS.
LAZ stated that though the judgment did not meet the full expectation of the claimants in terms of what was being sought, it remained a great tool in the fight against HIV and AIDS and served to enrich the jurisprudence of the nation on the subject.
For ZARAN, this judgment is a landmark one for the HIV response in Zambia and sets precedence in terms of mandatory testing as well as the right to confidentiality and privacy for all Zambians, and in this particular case for people living with HIV. We are happy that the two have been awarded damages for violation to their constitutional rights.
