On 20 May 2009, the High Court in Livingstone will hear a case, Kingaipe and Another v Attorney-General, regarding the alleged mandatory testing for HIV of two former Zambian Air Force employees, Stainley Kingaipe and Charles Chookole, and their eventual dismissal due to their HIV status.
The primary issues before the court in the case are:
- Whether Kingaipe and Chookole were subjected to testing for HIV, without their consent and knowledge and thus without pre- or post-test counseling, in violation of their rights to security of person, privacy and to be free from cruel, inhuman and degrading treatment.
- Whether Kingaipe and Chookole were dismissed from their positions in the Zambian Air Force due to their HIV status in violation of their rights to security of person, be free from discrimination and from cruel, inhuman and degrading treatment.
The Legal Resources Foundation of Zambia is representing the applicants with assistance from the Southern Africa Litigation Centre (SALC) and Zambian AIDS Law Research and Advocacy Network (ZARAN).
The facts
Stainley Kingaipe and Charles Chookole had worked for the Zambian Air Force (ZAF) since 1989, having joined the service when they were each 21 years old. At the time of their dismissal in October 2002, each had attained the rank of Sergeant. Throughout both of their careers at ZAF, they were employed in non-combat positions. At the time of their dismissal, Kingaipe was employed as a mechanic; Chookole was employed as a provost.
In 2001, they both went for their annual medical check-up as is required for all ZAF employees. According to both of them, the 2001 annual medical check-up included a previously unused procedure—a blood test. Following the medical check-up, they were placed on anti-retroviral treatment without being informed of the reasons for the medication or of their HIV status. Both men assumed the medication was for other illnesses. Neither was provided adherence counseling or informed of the importance of adhering to the anti-retroviral treatment.
For an entire year after the medical check-up, both men continued in their positions at ZAF, with neither of them taking a day of sick leave. Chookole was promoted during that period.
According to the documents provided by the ZAF, both Kingaipe and Chookole were determined to be permanently unfit for medical service by a Medical Board. Neither participated in the Medical Board nor was either informed of its meeting. It appears that the Medical Board made its decision with no input or independent assessment of either applicant. In October 2002, a year after the Medical Board’s decision, they were both informed of their immediate discharge on medical grounds.
The ZAF has denied testing Kingaipe and Chookole for HIV and claim that they were dismissed not due to their HIV status but on medical grounds.
Legal arguments
Kingaipe and Chookole have alleged a violation of their fundamental rights to liberty, security of person, be free from inhuman and degrading treatment, privacy, and be free from discrimination for their dismissal due to their HIV status and for subjecting them to HIV tests without their consent or knowledge. They are seeking reinstatement and damages for their lost wages and for mental anguish and emotional distress due to the unlawful termination of their employment and for testing them for HIV without obtaining their informed consent.
In addition, the applicants refer the Court to Zambia’s obligations under the directive principles of the Constitution to provide adequate medical and health facilities and adequate means of livelihood, and to regional and international law, including the African Charter on Human and People’s Rights and the International Covenant on Civil and Political Rights, ratified by Zambia and providing for the rights to liberty, security of person, be free from inhuman and degrading treatment, privacy and free from discrimination.
Conclusion
The trial is expected to last for at least three days. During the trial, in addition to the applicants, a number of experts will testify to the importance of pre- and post-test counseling and the medical nature of HIV in the employment context.
For regular trial updates you can access SALC’s blog on its website, www.southernafricalitigationcentre.org beginning 20 May.
