Mandatory HIV testing: In light of the case of Stanley Kingape and Charles Chookole V. the Attorney-General

Abstract

This essay considers the mandatory testing of the human immunodeficiency virus (HIV) and how an individual's rights are protected following the decision in Stanley Kingaipe and Charles Chookole v. The Attorney-General.1 In that case it was held that the mandatory HIV testing of an individual without their informed consent was an infringement of that individual's fundamental rights provided for in the Zambian Constitution. Therefore, following this decision no individual in Zambia should be tested for HIV without their informed consent. The effect of this decision is explored against the backdrop of the HIV/AIDS epidemic in order to determine whose rights are actually protected. This is done firstly, by looking at four groups in society to whom this decision is particularly relevant, these are: a) People living with HIV and AIDS (PLWHA) b) Children in defilement cases c) Women in rape cases d) Offenders in the sexual offences of rape and defilement Secondly, the arguments against mandatory HIV testing as is stated in Stanley Kingaipe2 and also arguments for mandatory HIV testing by looking at the sexual offences of defilement and rape were considered. Such arguments were obtained by looking at other jurisdictions 1 Stanley Kingaipe and Charles Chookole v. The Attorney-General. 2009/HL/86. 2 Ibid. IV

such as that of South Africa, where there is a law imposing the mandatory HIV testing of offenders3, and also America where some States also have such a law. In conclusion, the essay argues that imposing mandatory HIV testing on offenders serves no purpose in protecting the victim's rights as was previously assumed. The essay is of the view that the decision in Stanley Kingaipe has good intentions in that according to that case, it is everyone's rights which should be protected when it comes to mandatory HIV testing. However as it is still a recent case its effects are yet to be seen. 3 The Criminal Law (Sexual Offences and