Inter Press Service - October 14, 2003
Ferial Haffajee

We abide by international law to the extent it is in keeping with the constitution but it is our view that UN recommendations don't constitute international law," Mark Heywood of the AIDS Law Project told IPS.

Lawyers say that government's plan is unconstitutional because it violates the anti-discrimination clause in the constitution.

Defence Minister Mosioua Lekota dropped a bombshell last week when he said that "Anybody with the condition (of HIV) cannot be recruited into the defence force. There's no point. You can't take in ill people into positions in the army. It's not useful".

Lekota's comments have raised a storm among people living with HIV/AIDS, as well as among AIDS activists who plan to now take government to court for what they allege is widespread discrimination in the army.

South Africa's national defence force (SANDF) is primarily involved with peace-keeping on the rest of the continent, mostly under the aegis of the United Nation. These missions are under orders not to accept HIV-positive soldiers into the army, says Jackie Cilliers of the Institute for Security Studies in Pretoria.

"So Minister Lekota's was a good policy statement because he has no option, it is a requirement of all deployments under the UN. If soldiers volunteer for a UN mission, then you work for the UN," explained Cilliers. He added that infection was difficult to prevent in warfare.

But Heywood disputes that the UN imposes a blanket ban. He says their preliminary research has found that UNAIDS recommends that "HIV status should not be a precondition for exclusion from peace-keeping operations. The SANDF has chosen to ignore this".

Soldiers can be HIV-positive and still serve their continent, say doctors because infection does not equal sickness or disability. The National Association of People Living with HIV/AIDS agrees. "Science has demonstrated that HIV-positive people can live long. Even senior people who should be looked upon for direction do not understand the basic facts about HIV," said Nkululeko Nxesi in media reports.

Quoting an anti-discrimination case brought against the Namibian army, Dr. Fundile Nyati said the court found that HIV status alone was not sufficient grounds for medical exclusion.

If the applicant's various immune indicators (like CD 4 counts and viral loads) indicated disabling weakness, this could be grounds for exclusion. Writing in The Star newspaper, Nyati recommended that this was a better way for South African government to proceed than through a blanket ban.

About one in five soldiers are HIV-positive and while Lekota pledged support and care for them, he added that "able-bodied" peace-keepers were needed to serve on missions in the Democratic Republic of Congo (DRC) and Burundi, among other countries.

Civilian duty in the army would not exclude entrants who are HIV-positive, said Lekota's office.

While Lekota's statement has come like a bolt from the blue, Heywood says this has happened in practice for the past decade. "The army has never stopped excluding since apartheid ended. Testing is mandatory and refusal follows. There is no actual analysis of the actual state of health and no distinction of what the person will be doing". Among the cases that civil society will bring against the army are those of a chaplain refused duty and of a nurse.

"We will start a campaign because we believe a ban is constitutionally impermissible," said Heywood.

Around 5.3 million people have HIV/AIDS in South Africa, one of the highest in the world.(END/IPS/AF/SA/EA/HE/HD/SD/FH/MN/03)

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