In Africa, Courts Shape Views on AIDS

By Karin Brulliard
Washington Post Foreign Service
Saturday, September 12, 2009

LIVINGSTONE, Zambia -- As African countries still struggle to control the deadly AIDS epidemic, they are also grappling with debates over what rights and duties to give those 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, allow bosses to test workers for the virus, punish women who pass it to their babies and give constitutional protections to those with HIV.

Such questions are increasingly landing in courtrooms, presenting judges with cases that mix current science, individual rights and a devastating public health crisis. One, involving two Zambia air force members who say they were unfairly discharged because they have HIV, goes to trial here next month.

Similar questions 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 such a vast constituency, experts say, could help curb the epidemic -- or deepen a stigma that fuels its spread.

"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. "There's so many ways people with HIV are affected that it does require a whole set of rules."

But those rules are hotly debated. The United Nations and most health and human rights organizations 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 criminalizing 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' contention 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 -- an idea supported by observers 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's a very tricky situation, a catch-22," said the attorney general of the island nation of Mauritius, Jayarama Valayden, who successfully lobbied against a proposed HIV criminalization law that had popular support. African nations passing such laws, he said, are "reacting to public opinion."

In some places with unsettled HIV policies, African courts are weighing in, sometimes guided by colonial-era constitutions that never accounted for a large class of people with a deadly infectious disease.

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?

"There are those who feel it's the fault of a person who gets HIV to suffer the consequences . . . others say the best way to deal with HIV is to adopt a human rights approach," said Paul Mulenga, the airmen's attorney. "Zambian society is split."

The two men, Stainley 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.

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