By Desie Heita
The victory attained in the South African courts over that country’s policy of excluding HIV-positive people from recruitment, external deployment and promotion may prompt the Legal Assistance Centre of Namibia to mount a similar challenge here, unless the Government starts a voluntary review of its policy.
Human rights lawyers ask whether there is a real need to submit applicants for a career in the defence force to a mandatory HIV test.
“The question is: ‘Should we require quasi-mandatory HIV tests.’
This is not because we have a problem with HIV testing per se, but with the conclusion thereafter that an HIV-positive person is unfit to carry out the assigned duties simply because of being HIV-positive,” members of the AIDS Law Project South Africa said in the presentation of their case in Windhoek.
“This disregards the scientific evidence that an HIV person can be physically fit,” said the AIDS Law Project South Africa, which suggests that the HIV test be individualised to check for the fitness of a person in accordance with the requisite duties.
Acting on behalf of the South African Security Forces Union and three individual people with HIV who have been denied recruitment or promotion in the South African National Defence Force, the AIDS Law Project took the top chiefs of the army, the Minister of Defence, and South African President
Thabo Mbeki as army commander-in-chief to court. South African courts have ordered the South African National Defence Force employ the HIV-positive persons and promote or externally deploy them, and to formulate a new health policy within six months. One of the victims represented by the AIDS Law Project was a drummer whose desire was to join the South African National Defence force army band. And they point to the advertisement of the Namibia Defence Force, which clearly tells the aspiring defence force recruits that candidates should be willing to undergo a comprehensive medical test, including an HIV test.
“We do acknowledge that members of the defence force are required to be fit.
However, sickness is sickness. Why is HIV at the forefront of all other sickness? The policy [of testing for HIV and fitness] should not be there to discriminate,” they said.
During the court case, the AIDS Law Project argued that the HIV-testing policy of the South African National Defence force is “unconstitutional, unreasonable and infringes on the rights of the HIV-positive members of the society”.
They also used the argument from other members of the defence force with chronic illness such as severe hepatitis B who were deployed externally and went on to become decorated soldiers. “Why discriminate against HIV, while we all know there is treatment for it,” they argued.
In its arguments, the South African National Defence force said the presence of HIV-positive soldiers might put fellow officers at risk if wounded in combat and that access to medication in foreign territory might be difficult for HIV-infected soldiers.
AIDS Law Project argued otherwise, saying why is the defence force able to deploy soldiers to malaria-prone foreign territories, complete with malaria precautions and medications. The same can also be said for deploying soldiers with chronic illness such as hepatitis B or diabetes that require regular medication.
The AIDS Law Project also took exception to Namibian cabinet ministers who said recruiting HIV-infected people is tantamount to the cripple leading the blind, and that it has potential to be a war starter. They found the statements to be “irrational, unfair and discriminatory.”
AIDS Law Project said while it indeed has potential to be a war starter, it cannot reach that stage if there is a comprehensive health monitoring and treatment programme. “Chances are you would not reach that situation,” said the Aids Law Protect. The basis of the AIDS Law Project arguments was that the policy violates the four sections of the South African constitution that guarantee non-discrimination, rights to privacy and dignity, a violation of the provision of fair labour practices and administrative justice. Likewise for Namibia the constitutional provision that “all persons shall be equal before the law,” which to a certain extent made its way in the Government’s national policy on HIV.