Army faces law over HIV sacking

A legal battle looms between the army and four South Africans who claim they have been shut out of the military because they tested HIV-positive.

It comes at a time when the South African National Defence Force (SANDF) has embarked on collaborative research with the United States Department of Defence on the effect of the pandemic on the battle-preparedness of the South African military.

The Aids Law Project (ALP), a local NGO, is acting on behalf of three South Africans living with HIV who applied for jobs in the army.
They were rejected from service because of their positive status.

Two of these are combatants who fulfilled all other requirements for the job, including passing fitness and psychometric testing. They were accepted into the physically demanding course, but then dismissed when their medical report came through.

The ALP’s other client is a woman who applied to be a chaplain in the defence force. The project claims that the SANDF’s rejection of these recruits is discriminatory and violates the constitutional provisions to equity.

The court action will challenge the South African military on whether human rights or human resources are its priority. Defence forces across Southern Africa are grappling with this question.

Liesl Gerntholtz, an advocate working for the ALP, says the army has a de facto policy that requires mandatory testing of new recruits, and excludes those who test positive. She believes this undermines their human rights.

‘‘What I can say is that we have received complaints from clients that they have been tested pre-employment routinely. We have documents from the South African Medical Health Services of the SANDF that indicates that the protocol that deals with HIV testing says explicitly that if you are sero-positive then you are automatically considered to be medically unfit for employment in the SANDF,’’ she says.

Recruits must be ‘100% healthy’

Sam Mkhwanazi, a spokesperson for the South African Minister of Defence, Mosiuoa Lekota, says all new recruits are obliged to submit to a comprehensive health assessment. If they fail it, for whatever medical reason, they are not admitted. However, he denies that this is tantamount to discrimination.

‘‘We look at eyes, teeth, high blood pressure, for all ailments including HIV/Aids. The media want to give a person suffering from HIV more weight than to a person suffering from high blood pressure. The bottom line is that the uniformed member must be 100% healthy,’’ he says.

Gerntholtz believes that the extent of recruits’ illness should be the consideration, not whether or not they are HIV-positive. She says not enough research has been done on the effect of HIV on combat-preparedness to justify instant rejection from the forces.

‘‘It’s a blanket exclusion; they don’t consider your actual state of health. There is no CD [blood] count, there is nothing that indicates where you are in terms of disease progression,’’ she says.

The ALP has written a letter to the Ministry of Defence asking for clarity on its policy, in light of discussions it says are taking place on this issue in the South African National Aids Council. The council was unavailable for comment.

The cost of Aids

The ALP perspective is controversial among some military commentators who fear the cost of a physically weakened defence force, both financially and its effect on regional stability. The deputy director of the South Africa Military Academy at the University of Stellenbosch, Lindy Heinecken, says she understands the SANDF’s dilemma from a human resources perspective.

‘‘The SANDF is falling apart as there are not enough financial resources. The only way to create leadership in the military is for the recruits to progress through the ranks, otherwise there is anarchy and poor leadership. It is hard then to see that investment in training falling away because of HIV/Aids,’’ she says.

Heinecken argues that HIV/Aids has the potential to compromise security in the Southern Africa region, and the handling of the pandemic in the military is of ‘‘utmost importance for national security’‘.

In a research paper on the effect of HIV/Aids on the military, she writes of the forces: “When they themselves become enfeebled by HIV/Aids, the state’s ability to stabilise, defend or protect their citizens weakens. Nowhere is this more evident than in the armed forces of Southern Africa where infection rates could be as high as 80%.’’

‘‘We are dealing with a situation that must be dealt with as a human resources challenge and not a medical one. Because the security organ has a specific mandate that it has to fulfil, the people employed must have a competency that should be viewed in terms of their physical capacity to do the job,’’ says Colonel Andre Loubser from the Centre for International Political Studies, a military commentator.

In a research paper on HIV/Aids and the military, Loubser says he believes that HIV-positive SANDF members should not be promoted to higher positions as that would not ensure continuity in command, control and leadership.

Southern African protocols not in place

The 13-nation Southern African Development Community (SADC) is currently debating a protocol that provides policy guidelines on the handling of the pandemic in military forces. However, the guidelines have not yet been finalised or accepted by SADC members, according to the SADC’s technical adviser on HIV/Aids, Dr Antonica Hembe.

Heinecken quotes 1999 HIV/Aids prevalence figures in the SADC forces in her research. Her statistics put the prevalence rate in the military in Angola, the Democratic Republic of Congo and Malawi at 50%, Botswana at 33%, Lesotho at 40%, Swaziland at 48% and Zambia at 60%. Zimbabwe has reportedly a 55% prevalence rate in its armed forces and Namibia 16%. South Africa stood at 21% in 2000 and is now at 23%. Attempts to get more up to date figures from member states have failed.

The SANDF is still responding to reports earlier this year that 89% of a group of its members, who volunteered for testing, was HIV-positive. Mkhwanazi say this figure distorts the true picture of HIV prevalence as it was taken from volunteers who elected to be tested as part of the SANDF’s relatively new clinical research programme, Project Phidisa.

Through the project, the volunteers would be given access to life-prolonging free anti-retroviral drugs (ARVs). Media reports from a conference where this research was discussed suggested that the SANDF was losing 400 000 working days a year due to the disease.

‘‘No data is available that would support any estimate of the number of days lost due to HIV disease. Any figures that are used are therefore purely speculative. The Phidisa project hopes to provide answers to some questions in this regard, but to date no information is available,’’ said Major NA Allie from the SANDF in response to questions on those figures. Minister of Defence Lekota is on record as saying that there is no crisis within the SANDF as a result of HIV/Aids.

Phidisa was launched late last year as a collaborative programme with the US Department of Defence to combat Aids in the military, along with the existing awareness programme, Masibambisane.

The research will evaluate the effects of the HIV epidemic on the SANDF, measure the impact of ARV therapy, in particular, and assess the efficacy of preventative measures in the military. It will also provide a basis on which to research the impact of HIV on the military preparedness of the SANDF, according to Lekota. It is being rolled out at six bases across South Africa. Little details are available at this stage.

The SANDF says 350 members have enrolled in Phidisa to date. This group has had access to ARV therapy since January this year. This is the extent of the ARV treatment provided by the SANDF to its members.

Peacekeepers also tested

Mkhwanazi said all SANDF members dispatched for peacekeeping are also required to submit to a comprehensive health assessment. Those who test HIV-positive will be excluded from peacekeeping duty in other countries. However, despite reports to the contrary, the United Nations does not require mandatory testing for HIV and will not necessarily exclude HIV-positive personnel from serving in a mission because of their status.

‘‘The sole medical criterion for the deployment and retention of a peacekeeper is fitness to perform peacekeeping duties during the term of deployment. In accordance with current medical and human-rights guidelines, the HIV status of an individual is not in itself considered an indication of fitness for deployment in a peacekeeping mission,’’ says the UN Department of Peacekeeping Operations.

The UN, however, requires all military forces to offer voluntary testing and counselling to peacekeepers before they depart on a mission. It also requires all potential peacekeepers to be assessed to see whether they are fit for the service required. If they are not, for example if they are showing symptoms of full-blown Aids, then they will be excluded from serving in the mission.

Many peacekeepers are posted to comparatively under-resourced areas where there is little medical support should they fall ill.—IPS

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