Today, the Livingstone High Court held that the Zambian Air Force’s decision to mandatorily subject Stanley Kingaipe and Charles Chookole to an HIV test violated their rights to privacy and to be free from inhuman and degrading treatment under the Zambian Constitution. The Court further awarded them damages for the violation to their constitutional rights.
Priti Patel, HIV/AIDS Programme Manager, stated: “This decision sends a clear message to all services within the military as well as other sectors of Zambian society that HIV testing without consent is unacceptable under the Zambian Constitution.”
Charles Chookole and Stanley Kingaipe were employed by the Zambian Air Force in non-combat positions for almost two decades. In 2001, they were tested for HIV without their consent, and dismissed from employment in 2002. They instituted suit against the Zambian Air Force, arguing that this treatment violated their rights under the Zambian Constitution, including the right to be free from cruel, inhuman and degrading treatment and privacy.
Chookole and Kingaipe also argued that they were dismissed due to their HIV status. This was rejected by the Court, which found that the decision for dismissal was made based solely on their medical health and not their HIV status. The Court did not reach the question of whether dismissal solely on HIV status would be unconstitutional.
In reaching its decision that mandatory HIV testing violated the Zambian Constitution, the Court referenced Zambia’s obligations under international and regional treaties, including the African Charter on Human and People’s Rights. The Court further noted that Zambia does not exist in isolation and decisions from other similarly situated countries can be helpful in assessing the breadth and depth of the rights enshrined in Zambia’s Constitution.
Patel noted: “Zambia has expressly agreed to fulfil specific obligations outlined in international and regional treaties by choosing to ratify these treaties. It is critical for Zambian courts to take those obligations seriously. The Court’s decision today makes clear that the High Court does take those obligations seriously.”