9 November 2009
Johannesburg — SA's AIDS lobby won a major victory last week when the Cabinet approved a new policy allowing the military to selectively recruit and deploy soldiers living with HIV. But critics say this will weaken the operational effectiveness of the South African National Defence Force (SANDF).
The new guidelines issued by the Cabinet outlaw discrimination against soldiers and aspiring recruits on the basis of their HIV status.
The policy was in compliance with a high court decision last year that declared the SANDF's existing practice unconstitutional. The court order was agreed to by both sides, which consented to producing new guidelines within six months.
"If the last draft that we looked at is the one approved by Cabinet then it's a very positive step," says Mark Heywood, executive director of the Aids Law Project which argued the case on behalf of the South African Security Forces Union (Sasfu) and three others.
He describes the Cabinet decision as "groundbreaking in the world, not only in SA".
The Aids Law Project rejected the initial draft policy early this year.
"It was a technical-medical dispute about what constituted sickness and what were the parameters of deployability and employability of people with HIV," says Heywood.
He describes last week's Cabinet decision as proof that "our constitution with its guarantee of equality can actually work to counter unfair discrimination".
Sasfu had argued that the old policy excluded HIV-positive persons from being recruited, being deployed outside the borders of SA, and receiving advanced training.
Foreign deployment is much sought after by soldiers because it allows them to earn higher pay.
Sasfu president Bheki Mvovo also welcomed the Cabinet decision, saying: "It's a triumph for human rights in the defence force."
But defence analyst Helmoed Heitman -- who is also South African correspondent for Jane's Defence Weekly -- says the decision was a mistake. "There seems to be no understanding among our political leaders -- and others -- that the armed forces are not like a municipality or a supermarket company," he says.
Soldiers and their units have to be able to function under "extreme conditions that the rest of us simply do not encounter", says Heitman. Military personnel were at risk of being wounded and were also expected to provide immediate aid to a wounded colleague, he says.
"It is primarily these factors that make HIV an issue that goes somewhat beyond any individual health assessment," says Heitman.
It was not yet clear how the new policy would affect the SANDF's participation in United Nations (UN) peace keeping missions.
But Naison Ngoma of the Institute for Security Studies, says the UN did not discriminate against HIV- positive soldiers. "What SA has done is nothing strange at all," he said. Armed forces in Africa struggle with HIV, the prevalence of which is usually higher among soldiers than in the general population.
Lindy Heinecken of the University of Stellenbosch sociology department said the new policy would place a heavier medical burden on the SANDF, while negatively affecting its operational effectiveness.
However, she said it would not oblige the SANDF to recruit anyone living with HIV, unless there was a shortage in a specific skill category.
"So if you get 35000 applicants and only need to take 3500 then you take the very best," says Heinecken. On deployment, the court had not provided for a blanket policy. "What will be interesting is to see how host countries will react to this as they may refuse to allow SANDF soldiers to serve in their country, given that soldiers are seen as vectors for the disease," she says.
The new policy came as one of the three original applicants in the case was finally deployed to Sudan last month after battling for such an opportunity since last year's judgment. Sipho Mthethwa is a firearms expert who himself prepared soldiers for foreign deployment.
Among the three applicants was an HIV-positive trumpeter in the military band whom the military was refusing to employ. The third was a soldier who, on account of his status, could not be promoted. He resigned before the case was finalised.
Since the original court order Mthethwa had missed out on deployment opportunities to the Democratic Republic of Congo and Burundi. "We were preparing to go to court again to force them to deploy him to Sudan," says Sikhumbuzo Maphumula, an attorney at Aids Law Project.
SA has one of the world's heaviest HIV caseloads and has been accused by activists of dragging its feet on the disease which kills an estimated 1000 people every day. Earlier this month, President Jacob Zuma called for urgent measures to fight AIDS and an end to the huge stigma surrounding it.
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