Abstract

MALILA, Mumba. The dearth of the rights of HIV-positive employees in Zambia: A case comment on Stanley Kangaipe and Another v Attorney-General. Afr. hum. rights law j. [online]. 2012, vol.12, n.2, pp.579-598. ISSN 1996-2096.

Recent years have seen increased human rights litigation in Southern Africa in the areas of HIV and AIDS. Unfortunately, there has been virtually no litigation around the many human rights issues involving HIV and AIDS in Zambia. This has resulted in a virtual absence of relevant domestic jurisprudence around issues involving human rights and HIV and AIDS. The contribution comments on the first-ever successfully-litigated case in this area in Zambia. The case of Kangaipe v Attorney-General necessitates commentary because for the first time a Zambian court added its voice to the chorus of recent obiter dicta from several jurisdictions in the African region which declared that HIV testing without consent is a violation of human rights as set out in international human rights treaties and other normative instruments. The article argues that the Kangaipe case has contributed to the expanding frontiers of human rights litigation in Zambia, particularly as far as HIV and AIDS are concerned, and that it was the perfect opportunity for the Zambian courts to develop and refine problems related to the applicability of local and foreign authorities. Regrettably, the court failed to exploit fully these opportunities. The article shows that, while some aspects of the approach by the court in Kangaipe are encouraging in principle, on balance the protection of the rights of people living with HIV and AIDS in an employment setting remains contingent on an innovative and activist approach by a trial court. Obstacles faced by practitioners in such cases remain considerable.

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