In Africa, Courts Shape Views on AIDS - washingtonpost.com

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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.

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.

"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 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.

A military spokesman did not respond to requests for comment, and a Zambian air force lawyer reached by telephone would say only that Kingaipe and Chookole's case is "nonsense." 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." 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 percent prevalence rate, according to a U.S. Defense Department report.

Those kinds of figures have stirred concerns that the virus is weakening African militaries, and that HIV-positive peacekeepers on the continent might fall ill or spread the virus while deployed, either through wounds or sexual activity -- a particularly sensitive subject given accusations of rape that have long plagued U.N. peacekeeping forces.

"My taxpayer money is paying for the defense force, which is supposed to be providing security. That's also a right," said Lindy Heinecken, a military sociologist at the University of Stellenbosch in South Africa. "The military is a unique organization . . . the circumstances that you are asking them to live and work in are different to going to a factory."

Activists say those arguments are outdated, given the advent of anti-retroviral drugs that can keep people with HIV healthy, and only fuel stigma. Militaries, they say, should not ban all HIV-positive soldiers but should assess fitness for duty through general health exams. That is also the view of the United Nations, which does not require HIV testing for peacekeepers.

"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. "You must have a nuanced policy."

That view has been backed by recent court rulings in Namibia and South Africa, which found blanket bans unconstitutional. Mulenga said the case of Kingaipe and Chookole could pave the way for a similar challenge to the Zambian military's ban on HIV-positive recruits.

But that would require excluded recruits to come forward, and in a society in which HIV is still considered shameful, he said, few are as brave as Kingaipe and Chookole.

Indeed, the two men said neighbors and acquaintances sometimes whisper that their HIV status makes them "already dead," as Kingaipe put it. He thinks the air force also thought as much.

"Maybe they thought because of my status, I was also hopeless," said Kingaipe, who now works as a security guard, earning half as much as he did in the military. "It's not true."

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