The South African National Defence Force should within weeks finalise its new policy regarding the deployment of personnel who have tested positive for the Human Immunodeficiency Virus (HIV).
AIDS Law Project (ALP) head at the University of the Witwatersrand, Mark Heywood, earlier this month told defenceWeb the SANDF would have the policy, under development since last May, ready “fairly soon”… within “the next month”.
Polity.org reported in May 2007 that the ALP, acting on behalf of the South African Security Forces Union (Sasfu), had that month challenged the military on its use of HIV testing with regards to employment, deployment, promotions and transfer, saying that the policies discriminated against HIV-positive (HIV+) members.
“Over the years the SANDF has justified its HIV testing policy and its implementation on such grounds as, the military has a duty to protect the Republic, there is a need to keep HIV prevalence low in the military, people living with HIV are medically unsuitable and unable to withstand stress, physical exercise, adverse climatic conditions, etc, foreign deployment conditions are too harsh for people living with HIV, HIV+ members pose a risk to others the need to comply with the United Nations regulations with regard to deployment of peacekeepers,” Sasfu said in a statement announcing its court bid.
The ALP added that there was no basis for the assumption that HIV infection in itself renders a person physically unfit or mentally unstable.
When the matter went to court before Judge Claasen in the Gauteng North (Pretoria) High Court in May last year, the SANDF unexpectedly capitulated on a 14-year-old position and conceded its position was unconstitutional.
The ALP application was thus made an order of court. The ALP afterwards said the order meant the SANDF could “no longer automatically exclude HIV positive people from recruitment, external deployment and promotion”. The military was further given six months from May 17 to amend its health classification policy to allow “for individualised health assessments of recruits and current members of the armed forces”.
Heywood says the SANDF “only provided us with a copy of the draft in late November.
We then made submissions on that draft that seem to have sat on someone`s desk for the last few months.
“Now SASFU wants the entire matter dealt with urgently…”
SA Military Health Service spokesman Lt Col Louis Kirstein says the SANDF cannot currently comment as “we are in a consultative process and awaiting feedback from various role players.”
Heywood also avers the contents of the policy was “confidential at this point”, but adds the “bottom line is that we are looking for a policy that is reasonable and based on medical science in terms of the fitness and capability of people who are asymptomatic with HIV and on antiretroviral treatment to perform the function of a member of the military outside of SA.”
He adds once there is consensus on the new policy, it will go to the SA National Aids Council, “the highest advisory body to the SA government on all issues related to Aids”, for approval “and if agreement is reached there it can be forwarded to the minister of defence and Cabinet for approval.”
The position elsewhere
University of Stellenbosch sociology professor Lindy Heinecken and law lecturer Michelle Nel in an article prepared for publication in the Journal of Human Rights on the matter estimate the SANDF`s HIV infection rates at between 22-25%, “approximately 3% above the national average”.
Heinecken and Nel add that by 2006 most of the armed forces in the region openly stated that AIDS accounted for over half of in-service mortality. “The impact is so severe that in some cases, certain African armed forces have been unable to deploy a full contingent or even half of their troops at short notice.
“In March 2003 the Malawi Defence Force reported that troop strength was down by more than 40% due to HIV deaths and in Mozambique it is reported that “the country is no longer able to recruit and train police officers fast enough to replace those dying of AIDS”.
Heinecken and Nel say there are numerous reasons why armed forces are particularly badly affected and infected by HIV/AIDS. “In the first instance, they generally employ and deploy precisely the age group most susceptible to infection. Most are young, male and sexually active, are deployed for lengthy periods away from home, subject to peer pressure, exposed to opportunities for casual sex, prone to risk taking and often free from behavioural restraints imposed upon them in their home environment.
“Furthermore, bachelor conditions, alcohol and drug abuse, regular pay and the possibility of exposure to blood through direct contamination, or through unscreened blood transfusion add to their vulnerability.
“Across the globe military leaders pay close attention to the health and fitness of their personnel. High HIV-infection rates within the military have particularly negative consequences for national and international security as every soldier infected affects the capacity of the military to execute their mandate. HIV/AIDS erodes the command cadre of armed forces, increases operational costs, delays deployments to international peacekeeping operations and diverts funds away from other sectors – such as training and maintenance as health costs escalate.
According to one 2008 research paper some 27 countries have mandatory testing of new recruits, most of them in Africa. “Only one in 23 countries in Europe test potential recruits, compared to 7 out of 9 in the Americas and 10 out of 17 in Sub-Saharan Africa.”
The testing of recruits for HIV, whether mandatory or voluntary, as a condition for enlistment is the norm in Botswana, Kenya, Tanzania, Malawi, Swaziland and Zimbabwe.
“The position is somewhat different for those who test HIV+ while in-service in most African armed forces. Generally, such members are not dismissed, although they could be downgraded based on their medical classification, not accepted for certain military courses (especially foreign military courses) or not deployed on international missions.
“In Zambia, for example, soldiers are tested if offered a course financed by a foreign donor or if the course lasts three years or more. This is quite common and the obvious call here is return on investment.”
Heinecken and Nel also found that despite “the fact that the UN recommends that armed forces test peacekeepers before, during and after deployment, it is not mandatory…” which contradicts SANDF claims on the matter.
“As a result, the UN does not know whether countries are sending HIV+ individuals to peacekeeping operations, or how many are infected. In fact, information regarding HIV+ individuals deployed on peacekeeping missions has never been requested or volunteered in any mission.”
“Even where such information exists, national armed forces are not inclined to make this public as it may be considered a strategic weakness, may jeopardise their standing as a troop-contributing nation and affect the revenue they receive for participation in such missions.”
The two authors add that research conducted by UNAIDS in 2001 largely discredited HIV testing as a deployment criterion. In its final report the organisation “concluded that HIV status is not an appropriate indicator for the recruitment, deployment or retention of peacekeepers. The infection itself does not mean the individual is unfit to work. The standard is fitness to perform the duties of peacekeepers during deployment. The HIV test on its own does not establish fitness to perform duties. Such fitness can only be determined by an individualised medical assessment.”
UNAIDS also found many arguments made against the deployment of HIV+ personnel were not supported on the basis of medical evidence, including the line of thought that mandatory testing is needed to protect the health of HIV+ peacekeepers, or others in terms of blood safety issues, cognitive impairment, vaccinations, or conditions of deployment.
“Medical evidence does not support the contention that asymptomatic HIV infection marks cognitive impairment… The question of whether HIV+ members can be vaccinated with live vaccines, or whether the stress of deployment has a negative affect on the health of HIV+ peacekeepers, is also not conclusive…”
Then there is the issue of protecting host or civilian populations from infection by peacekeepers. “Here too, no evidence exists to show that mandatory testing is effective in achieving public health goals in preventing the spread of HIV.
UNAIDS also notes a positive test does not have any bearing on a person`s right or fitness to work, “as in most cases neither the CD4 count nor the viral load are taken into consideration in the recruitment or deployment of HIV+ individuals. Most consider that persons are deemed fit until their CD4 count falls below 200 or their viral load reflects an increase of over 100 000.”
Looking at Sasfu`s case, Heinecken and Nel say its “main legal argument rested on the contention that although health status and fitness levels are relevant in the SANDF for certain posts, a blanket exclusion is unreasonable and not based on medical authentication. The policy does not take into account the continuing longevity and health status of HIV+ individuals, advances in treatment, the health and strength of asymptomatic individuals, nor those under treatment. The SANDF`s policy assumes that all HIV+ individuals, irrespective of the CD4 count or viral load are unable to work under harsh conditions.”
“Over and above this, SASFU argued that the SANDF`s policy was contrary to the National Policy on HIV/Aids and the Cabinet`s position on pre-employment testing as grounds for exclusion in the SANDF.”
They footnote that in March 1997 Cabinet made a decision that the public service, irrespective of the department would not test for HIV. Cabinet on 16 April 1997 adopted a document titled “Physical fitness in the SANDF – Testing for HIV” which contained the decision that no exclusions from appointments to positions in the public service will be made where a person is HIV positive, except in the case of the SANDF where exceptional physical fitness is required. On 5 August 2004 the Minister of Health, Dr Manto Tshabalala-Msimang denied that there is a policy of pre-employment testing within the SANDF, a statement contradicted by the facts.
Heinecken and Nel report a case similar to Sasfu`s was contested in Australia. In X v Commonwealth of Australia an applicant from the Army General Reserve tested positive for HIV during his entry examination to the Australian Defence Force (ADF), and was subsequently discharged.
He challenged this dismissal as unlawful discrimination under disability legislation, as asymptomatic HIV is classified as a disability under Australian law. The ADF argued that deployment was an inherent requirement of service and that the dismissal could not be seen as discrimination on the grounds of disability because HIV+ recruits were unable to carry out the inherent requirements of defence force employment. They added that according to Australian disability legislation, discrimination was not unlawful where a person is unable to carry out the inherent requirements of his job and where this imposes unjustifiable hardships on the employer.
Upon hearing this case, the Human Rights Commission found that deployment was not an inherent requirement, but rather an external requirement set by policy and found the dismissal to be unlawful. Subsequently, the case was referred to the Federal Court of Australia which ruled that “inherent requirements” of employment related to both the capacity and ability to perform said duties in a specific environment. Thus, inherent requirement related to both the ability to do the job, but also anywhere where the employer needs the job to be performed.
Another court case relating to HIV-testing within the military was in Canada in Thwaites v Canadian Armed Forces. Thwaites, a master seaman, filed a complaint against the Armed Forces with the Canadian Human Rights Commission alleging that the Armed Forces had discriminated against him by terminating his employment and restricting his duties and opportunities because he was HIV+.
The Commission ruled that the Armed Forces were by law required to assess a person`s risk to himself and others and weigh his capabilities. They found that a person should be assessed individually and not be excluded as a “class”.
“Based on the preceding international cases it is clear that HIV-testing per se is not
the issue, but the consequences thereof for the individual,” Heinecken and Nel add.
“Such foreign case laws serve as important precedents, but as indicated, cannot be judged in isolation from existing national legislation.” In South Africa, for example, an important case that relates to the military is Hoffmann v South African Airways. They say as with pre-employment testing for military recruits, the cabin attendant was found unsuitable for employment based on his HIV status alone.
“Although the High Court first ruled in favour of the SAA, it was later overturned by the Constitutional Court which found that an asymptomatic HIV+ person can perform the work of cabin attendant competently. The risks to passengers and colleagues are inconsequential and vaccinations for over-seas duties are possible. This is an important case, especially in terms of the arguments against vaccinating persons against diseases such as yellow fever.”
“For the SANDF to fulfil its mandate it requires a force that is fit, healthy and readily deployable,” the authors assert. “Hence, to exclude or restrict persons that are unable to perform the inherent requirements of the job is justifiable. Across the world, the practice of screening recruits for chronic, debilitating, progressive and fatal diseases as well as excluding such persons from employment in the military is accepted practice.
“Militaries, particularly those with high infection rates claim that should exceptions be made in terms of HIV-status, it endangers the principle of only employing and utilising healthy and fit soldiers and opens the door to other health compromised individuals. Negation of this principle implies that the military has to accept all with similar chronic ailments, thereby compounding the health integrity of the military even further.
“…medical support during peacekeeping missions may be limited. The SANDF, for example, experiences an acute shortage of medical staff and [in 2006 reported] a critical vacancy rate of 11% for medical professionals and 24% for nursing staff. Thus, medical support during operations and the field hospitals have limited capacity. For this reason, the Medical Services Division of the UN Office of Human Resources Management has recommended that personnel with HIV not be deployed on foreign missions as they cannot be assured the proper medical care.
“Even very basic ailments, such as diarrhoea and the common cold, could prove life-threatening to such individuals where health care is limited. Although little scientific evidence exists on the exact impact immunisations such as yellow fever have on the HIV compromised person, it is claimed that live attenuated viruses pose a health risk to HIV-compromised individuals.
“Practice follows that these immunisations are not recommended, which makes deployment of such persons problematic in peacekeeping operations where yellow fever and tuberculosis are prevalent. HIV+ persons are undeniably more susceptible to a host of opportunistic infections, which further weakens their immune systems and compromises their ability to perform their duties optimally.
“A third concern is that the presence of HIV+ peacekeepers poses the risk of transmission to medical personnel and fellow peacekeepers, especially where protective measures may not be available to prevent accidental transmission. Then there is the issue of HIV transmission to the civilian population by peacekeepers, which has sensitive diplomatic and political implications.
“Soldiers from other nations may also refuse to serve alongside infected forces from other nations if they consider that they may be placing their own safety and operational efficiency in jeopardy.
“Last, but by no means least is that military personnel are frequently deployed in alien biological environments, often in adverse physical circumstances that can place undue stress on members highly susceptible to opportunistic infections. This implies that if HIV+ members are to be utilised in peacekeeping operations the frequency of evacuations and the replacement of members are likely to increase, placing an additional burden on the financial and operational efficiency of militaries.”
“While these are some of the challenges facing the SANDF and other armed forces with high infection rates on peacekeeping operations, the greatest challenge lies in preparing and providing sufficient forces for these missions. The ability of the SANDF to sustain external deployments, even with regard to battalion strength, is decreasing due to the inability to terminate the employment of members who are not operationally deployable. This places an enormous strain on the personnel budget, as more people have to be trained to fill the gaps left by members who have either died or are no longer deployable.
“The SANDF acknowledges that it battles to provide sufficient forces for rotations to peacekeeping operations. Consequently ‘units are made up by fragments of other units due to health and welfare reasons, resulting in troops working under commanders they do not know with equipment that is neither theirs nor their responsibility`. Clearly this compromises force readiness and performance in the field.
“All indications are that the SANDF will find it difficult to obtain and provide enough qualified personnel to operate its technologically advanced equipment and have sufficient HIV-negative troops to deploy at short notice. Unlike some Western armed forces, which make extensive use of private military companies (PMCs) to increase their functional and numerical capacity to meet rising operational commitments, the SANDF has not adopted this practice. Within the current force design the option of using the private sector to boost its manpower deficits, or provide the necessary technical and logistical support, does not exist.
“The South African government may even have outlawed this as an option, due to the limitations placed on the use of private military companies in areas of armed conflict by the recently enacted Prohibition of Mercenary Activities and Regulation of Certain Activities in Country of Armed Conflict Act 27 of 2006.
“While the provision of antiretroviral (ARVs) medication to infected soldiers may slow down the skills loss, this is a short-term solution. Should HIV+ members be deployed this places an additional burden on the military health service to ensure that members not only have sufficient ARVs, but that adequate health and nutritional support is available whilst on deployment.
“In South Africa the military health care system is already buckling under budgetary constraints, as it provides health care for both military personnel and their dependents. The more money that is channelled from the defence budget to health care, the less for maintenance, training and deployment – all of which collectively undermine the operational capacity and effectiveness of the defence force.
“From the above it is clear that HIV places a tremendous burden on the military capability of countries severely affected by this disease. Not only does it push up recruitment and replacement costs, but training costs, deployment costs and not least, the cost of maintaining healthy deployable forces,” Heinecken and Nel assert. “HIV/AIDS has a seriously debilitating effect on armed forces. As mentioned personnel attrition, the loss of skilled personnel, the need for training and re-training, the impact on availability of personnel for deployment and rising military health budgets all erode the institutional capacity and efficiency of the military.”
They say the new policy needs to be formulated not only around the human rights of HIV+ personnel but around the ability of the military to execute its mandate to enable them to protect the human rights of others.
“Whose human rights should weigh more heavily – those of soldiers or those of innocent civilians who the military may not be able to protect because they lack the capacity, or who may even become infected by the peacekeepers sent to protect their lives. This is a classic case of weighing the rights of the individual against the rights of the community, more specifically the international community.”
Defence analyst Helmoed-Römer Heitman has described the SANDF`s capitulation to Sasfu as “imbecilic” and warns it “will result in soldiers losing their lives unnecessarily.
“We have become so besotted with being ‘progressive` and politically correct that we do not care if we kill people in the process,” he adds.
The Brenthurst Foundation`s Rear Admiral (Retired) Steve Stead adds the SANDF`s new position will likely unlock “another constitutional right and that is the right of protection against disease and infection.”
“How do you say to someone in the military that he/she will give assistance to anyone who gets injured in combat without concern for the fact they may have HIV/AIDS? What it means is that there is a very strong probability that wounded soldiers will die unnecessarily because their colleagues (who would normally assist them) are not prepared to take the chance.”