Livingstone High court declares mandatory HIV testing unconstitutional

A Zambia High Court in Livingstone has set a precedent by declaring that mandatory testing of HIV/AIDS is illegal and unconstitutional.

This was in a case in which Judge Elizabeth Muyovwe was hearing a matter in which two soldiers complained that they were subjected  to HIV testing without their consent  by the Zambian Air Force (ZAF).

Paul Mulenga, the lawyer who represented the soldiers has explained to the Watchdog that the High court today ruled in favour of Sergeants Stanley Kingaipe and Charles Chookole.

He said the two have been awarded K10 million each  as compensation as the court found that the soldiers’ right to privacy and human rights were infringed.

But the court said that the dismissal of the two from ZAF was  not illegal and that they were not dismissed on the basis of their HIV status, according to lawyer Mulenga, who works for the Legal Resources Foundation.

Mulenga explained that following this ruling, it is now illegal to test someone for HIV without their consent.

The case in court was that, Kingaipe and Chookole worked for the ZAF for 13 years as a mechanic and provost, respectively.

In 2001, both went for medical exams and, unlike in prior routine exams, they were given a blood test and were subsequently placed on anti-retroviral medication, without receiving any information as to the results of the test or the purpose of the medication. Although both continued to work for a year after the initial exam, during which time neither took any sick leave and Cookole was promoted, the ZAF Medical Board assessed both men as unfit for service and discharged them. The ZAF claims that the men were dismissed because Kingaipe has cancer and Chookole has tuberculosis; however, this assertion is doubtful because when both men later volunteered for HIV testing, they were informed that they were already being given anti-retrovirals. A current ZAF policy passed in 2003 bans HIV-positive recruits, but does not allow the military to discharge those who are already employed due to their HIV-positive status.

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