Ground breaking HIV AIDS case in Livingstone High Court

Livingstone High Court on May 20 heard a ground-breaking case to determine whether mandatory testing for HIV and discrimination based solely on HIV status of an individual is constitutional in Zambia.

The case, Kingaipe and Another v Attorney-General, involves two former Zambian Air Force (ZAF) employees, Stainley Kingaipe and Charles Chookole, who were allegedly subjected to mandatory testing for HIV without their knowledge and were dismissed due due to their HIV status. The two men are seeking reinstatement and damages for mental and emotional anguish suffered as a result.

Priti Patel, a lawyer with the Southern Africa Litigation Centre (SALC) says: “As decisions in South Africa and Namibia make clear, there is no legitimate medical or policy reason for discriminating against HIV positive persons in the military and subjecting them to testing without their consent. Zambia should send a clear message to the military that such unlawful treatment will not be tolerated.”

Both applicants in the case worked with the ZAF for over 13 years, having joined the institution when they were 21 years old. They held non-combat duties throughout their careers at ZAF and in 2001, they were allegedly subjected to an HIV test without their consent or knowledge and given anti-retroviral treatment without their knowledge. In October 2001, without their knowledge or participation, a Medical Board reviewed their medical records and declared them permanently unfit for service. They both continued to work at the ZAF for a full year after the Board decision, performing so well in their jobs that one of the applicants was promoted during that time. Neither of them took a day of sick leave during that one-year period but in October 2002, they were both dismissed.

A paralegal working with Zambian AIDS Law Research and Advocacy Network (ZARAN) Dimuna Phiri, stated: “The testing of individuals without their consent not only violates fundamental rights guaranteed in the Zambian Constitution, but also has harmful public health consequences because it increases stigma.”

SALC and ZARAN are assisting the Legal Resources Foundation of Zambia in prosecuting the case.