NEW LAWS PROMPTED BY AIDS

Swaziland’s Sexual Offenses Act of 2009 is part of a trend of new legislation that is being written in countries throughout Africa.  With AIDS a persistent dilemma on the continent, ways are required to slow the spread of HIV and criminalise people who knowingly pass on the virus or even do so unknowingly out of apathy.
As African countries struggle to control the deadly AIDS epidemic, lawmakers are also keeping in mind the rights of people living with the disease — a growing segment of the population that remains largely hidden.
Across the continent, lawmakers are considering whether to make criminals of those who infect others with HIV, while other legislation under consideration will allow bosses to test workers for the virus.  Some laws being sought would punish women who pass HIV to their babies, while countries like Swaziland give constitutional protections to those with HIV.
All these matters need to be addressed by new laws because they have all ended up in African courtrooms, presenting judges with cases that mix current science, individual rights and a devastating public health crisis. This month the court case that has received the widest attention involves two Zambia air force members who say they were unfairly discharged because they have HIV.  The case goes to trial next month.
Legal questions concerning AIDS are raised worldwide but nowhere do they carry more weight than in a region where as many as one in five adults has HIV and in an era in which anti-retroviral drugs are keeping more people alive. Laws crafted to deal with this medical emergency could help curb the epidemic but may also have the unintended consequence of deepening the stigma that fuels the spread of HIV.
problem
“HIV is a systemic issue in southern Africa.  It’s a huge social problem and it inevitably becomes a legal one,” said Adila Hassim, head of litigation at the AIDS Law Project in Johannesburg to the Washington Post newspaper in an article that is the primary source for today’s column. 
The United Nations and most health and human rights organisations back policies that emphasize rights for people with HIV, an approach that has generally been favored by officials in African nations, at least a dozen of which have passed or are considering HIV-specific legislation.  But those officials also face pressure to protect the uninfected.
Laws criminalising the transmission of HIV have been adopted from western to southern Africa, for example, with backing from some women’s groups despite human rights advocates’ insistence that they deepen stigma. 
In Botswana, protests by activists have failed to stop employers from testing and excluding infected job applicants. A recent proposal in Rwanda would require HIV tests for many people.  The idea is supported by medical officials who say that relying on people to seek testing “can deprive other people of their right to life,” as one University of Pretoria researcher wrote in South Africa’s Star newspaper.
“It is a very tricky situation,” said the attorney general of the island nation of Mauritius, Jayarama Valayden, who successfully lobbied against a proposed HIV criminalisation law that had popular support.  African nations passing such laws, he said, are “reacting to public opinion.”
The case of the Zambian airmen, lawyers involved say, could help answer contentious questions in a nation where 15 percent of adults have HIV: Is discrimination on the basis of HIV status unconstitutional?  Can the military test recruits or members for HIV and ban those who are positive?
The two men, Stanley Kingaipe and Charles Chookole, joined the Zambian air force in 1991 and began as members of the band. Kingaipe, 40, eventually transferred to the mechanical fleet, while Chookole, 41, became an academy instructor and armory guard.
Over the next decade, both men said, air force doctors treated them — Kingaipe for a swollen leg; Chookole for leg pain, a fungal infection and tuberculosis. The men said they and a group of other airmen were summoned in 2001 for a medical checkup where, for the first time, their blood was drawn. Days later, Kingaipe and Chookole said, doctors instructed them to take three white pills twice a day but did not say what they were for. A year later, they were told they were permanently and medically unfit for service and discharged — though both felt healthy and said they had been fulfilling their duties as normal.  Chookole, in fact, had been promoted to sergeant two months earlier.
unable
“I was confused,” recalled Chookole, who said that his boyhood dream was to join the military and that he has been unable to find work since.  “Somebody is telling you that you are unfit. But I was dressed in full uniform. I did not come before them on a stretcher.”
Upon their discharge, the two men said that they discovered the pills were anti-retroviral drugs to treat HIV — and that they were HIV-positive.
They want their jobs back and have filed a lawsuit alleging that they were subjected to HIV testing without their knowledge, violating their rights to privacy and protection from inhumane and degrading treatment and unfairly dismissed.
In court filings, the Zambian government said the men were not tested for HIV and were discharged because Kingaipe had Karposi’s sarcoma, largely an AIDS-related form of cancer, and Chookole had tuberculosis.
At the time of their discharge, the Zambian military had no policy on HIV. In 2003, it announced a draft policy banning HIV-positive recruits, which one military official called necessary because “defense is not kindergarten or Red Cross. We need people who are fit.”  However, the policy, finalized last year, does not allow the military to discharge those who contract the virus after recruitment.
Some Western militaries, including that of the United States, bar potential recruits who are HIV-positive.  But the topic of HIV and the military has generated more debate in Africa, where strapped governments offer infrequent medical care.  A 2004 study of Zambia’s 22 000-member military found a 29% prevalence rate, according to a US Defense Department report.
“In this society, unless you want to go and look for people from Sweden for your armed forces, you’re not going to get away from HIV,” said Hassim of  the AIDS Law Project.