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The dearth of the rights of HIV-positive employees in Zambia: A case comment on Stanley Kangaipe and Another v Attorney-General

Mumba Malila

Lecturer in Law, University of Zambia; State counsel and Advocate of the High Court of Zambia

SUMMARY

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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* LLB (Zambia), LLM (Cambridge); mumbamalila@yahoo.com
1 (2009) HL/86 (unreported) decided by Justice Elizabeth Muyovwe of the Livingstone High Court. At the time of writing this comment, the judge had been elevated to the Supreme Court of Zambia.
2 The Constitution of Zambia, ch 1 of the Laws of Zambia sets out the Directive Principles of State Policy in part IX. According to art 110, these principles shall guide the executive, the legislature and the judiciary in the development of national policies, the implementation of those policies, the enactment of laws and the application of the Constitution and other laws. According to art 111, these Principles are not justiciable.
3 Pursuant to sec 12 of the of the State Proceedings Act, ch 71 Laws of Zambia.
4 (1998) ZR 79.
5 (2003) 2 BLR 409.
6 The Universal Declaration, adopted in December 1948, is considered to be an 'authoritative interpretation of the Charter of the United Nations' and 'the common standard to which the legislation of all the member states of the United Nations should aspire'; LB Sohn 'The new international law: Protection of the rights of individuals rather than states' (1982) 32 American University Law Review 10 15 (citing Prof Cassin, one of the principal authors of the Universal Declaration).
7 Monism in international law denotes those states in whose systems international law by domestication or otherwise transforms into national law. The act of ratifying an international treaty immediately incorporates that international law into national law. In dualist states, national implementing legislation is necessary.
8 [1995] ZMHC 1.
9 (1993) 1 All ER 821.
10 (2004) 4 All ER 587.
11 (1993) 1 NZLR 235.
12 (2000) 4 All ER 961.
13 1996 4 SA 292 (T).
14 Art 112(d) of the Constitution reads: 'The following Directives shall be the Principles of State Policy for the purpose of this part: ... (d) The state shall endeavour to provide clean and safe water, adequate medical and health facilities and decent shelter for all persons and take measures to constantly improve such facilities and amenities.'
15 IC 166 of 2004, Botswana (Industrial Court).
16 1979 4 SA 793 (T).
17 Adams (n 16 above) 801.
18 J Dugard 'The judicial process, positivism and civil liberty' (1971) 88 South African Law journal 181,         [ Links ] as quoted in D Kleyn & F Viljoen (eds) Beginners' guide for law students (1995) 44.
19 Kleyn & Viljoen (n 18 above).
20 See eg the dissenting judgment of Lord Akin in Liversidge v Anderson 1942 AC 206 HL, when he said: 'I view with great apprehension the attitude of judges who on a mere question of construction when face to face with claims involving the liberty of the subject show themselves more executive-minded than the executive', quoted in PJJ Olivier 'Executive-mindedness and independence' in B Ajibola & D van Zyl (eds) The judiciary in Africa (1998) 172.
21 Case 515/2004 [2005] ZASA 68 26 August 2005, Supreme Court of Appeal, South Africa.
22 This contrasts very sharply with the Zimbabwean case of S v jM (HC 2845/07) [2007] ZWBHC 86; HB 86/07 9 August 2007, Zimbabwe High Court, where the Court held that the defendant's HIV-positive status and likelihood that she would be a burden to the prison authorities are not a proper basis for reconsideration of her prison sentence, as these are administrative issues.
23 Civil Case 38 of 2003 (decided in 2004) Kenya High Court.
24 The Court also considered the prevalence of stigma and discrimination on the basis of one's HIV status and protected JAO's identity by allowing the use of her initials as a pseudonym. This matter was eventually settled out of court with court approval. Home Park Caterers and the doctor ended up paying JAO compensation in the order of KAS 2 250 000.
25 IC 166 0f 2004, Botswana (Industrial Court).
26 See Centre for Reproductive Rights, Toronto, Canada Legal grounds, reproductive and sexual rights in commonwealth courts (2010) 92.
27 2000 2 SA 628 (CC).
28 High Court, AIR (1997) 406.
29 AIR 1997 Bom 406 (High Court of Judicature, 1997).
30 Constitutional Court of Colombia, Judgment SU-256/96 (1996).