Clemencia Jacobs
3 July 2009
Windhoek — The 22 people who are taking their former employer to court for having been tested for HIV without their consent, wants to be compensated for the damage they suffered, said Linda Dumba Chicalu, project lawyer at the Legal Assistance Centre's (LAC) AIDS Law Unit, which will represent them in court.
"Basically they want to be heard in court. They want to set an example in court that they cannot just test people without their informed consent and that they have to respect people's human rights," said Chicalu.
In February 2000, they were tested for HIV without their consent while working at a lodge in the Oshakati district, the 22 people said.
The lodge owner hired a medical doctor to conduct HIV tests on all his employees. At that time, the employees were unaware of the nature of these tests, according to the LAC.
"When some of the employees enquired about the nature and purpose of the test, they were told the purpose of testing was for general hygiene and was not of a serious nature. While most of these incidents happened in private, one employee was tested in full view of the general public," said the LAC in a statement.
According to these workers, no pre- or post-test counselling was provided. At a later stage, test results were displayed publicly and the names of all employees who tested HIV positive were displayed on a notice board of the kitchen and reception area of the lodge, according to the LAC.
"There is very little jurisprudence in Namibia relating to the issue of testing for HIV without informed consent. We believe that this is a very strong case. Should the court rule in favour of the employees, this case would set [a] very important precedent domestically and for the region as a whole, said Chicalu.
She said the case will be groundbreaking as it will set a precedent on a number of issues such as testing without informed consent, provision of both pre-test and post-test counselling, maintaining of confidentiality and the right to bodily integrity.
It will also shed light and renew debates on the fast eroding ethics amongst the health care professionals, said Chicalu.
She said it has taken this long to bring the case before court, as a large number of people are involved.
"It is quite challenging to get all the people together as one lives in Luderitz, another in Oshakati and some are even studying in South Africa. It takes a lot of time to litigate if people are this many and a lot of court procedure was also involved. But at least we are finally going to court," she said.
This is the first time that a case of testing for HIV without consent will be heard by the Namibian courts. The case will be heard in the High Court from 20 to 30 July.
The human rights organisation hopes the case will result in a change of attitudes, behaviour and legislation.
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