A landmark court case in Zambia is sure to reignite a debate about the pros and cons of mandatory testing for HIV. Zambia Air Force (ZAF) officers Stanley Kingaipe and Charles Chookole say they were tested and treated for the virus without their knowledge. ZAF has now been ordered to pay them compensation for mental anguish.
The controversy about compulsory testing has been smouldering for some time. It was a stray remark by the minister of health, Kapembwa Simbao, at an HIV conference late in 2008 that started it.
Simbao was reported as saying that too few Zambians were voluntarily going for an HIV test and that they should be compelled to do so. He said, knowing their HIV status would help them to make informed decisions about their lives. â€œBurying our heads in the sand like ostriches will get us nowhere. Only when you know your status can you access treatment.â€
It is estimated that one in seven Zambian adults have HIV, yet only around 15% have gone for voluntary counselling and testing (VCT).
The ministerâ€™s suggestion drew scorn, anger and concern. â€œYou canâ€™t drag people to a testing site. Itâ€™s never been done anywhere in the world,â€ argues Elizabeth Mataka, the UN secretary generalâ€™s special envoy for Aids in Africa. â€œI know we have a crisis on our hands, but I donâ€™t think this is the best way of dealing with it. Itâ€™s a violation of the personâ€™s rights.â€
Human rights activists like lawyer, Abraham Mwansa agree, saying: â€œ This is an issue of privacy and of the dignity of an individual.
â€œWhere mandatory testing is imposed by law, where the issue of record-keeping is suspect, where the confidentiality of the results is an issue, it will just encourage stigmatisation.â€
He fears families which are the backbone of Zambian society will be destroyed as a result.
â€œHereâ€™s a person who is happily married, not aware of their partnerâ€™s HIV status,â€ Mwansa says. â€œIf they find out, thereâ€™s a likelihood the marriage will just crumble. But if they donâ€™t, chances are they will stay together.â€
Wives are more vulnerable than their husbands, according to Malala Mwondela, executive director of the Zambia Aids Law Research and Advocacy Network (Zaran).
â€œSometimes when women inform their partners that they are HIV positive, they face violence and some are abandoned,â€ she says.
If testing were mandatory, Mwondela believes that women would be among the easiest targets. Most will attend a clinic when pregnant and could then be forced to undergo a test.
Some think families, including Stanley Kingaipeâ€™s, risk being broken up by mandatory HIV testing. In fact, expectant mothers are already being routinely checked for HIV, though they can; and sometimes opt out.
Dr. Swebby Macha, a former president of the Zambia Medical Association, favours using a similar approach across the board. It would mean some people would not go for treatment for fear of learning their status.
Mwansa believes conducting routine HIV tests on patients would end up making the health situation worse: â€œIn my view, it would mean some people would not go for treatment for fear of learning their status. And the end result would be that the purpose of the law would not be achieved.â€
Dr. Macha disputes that: â€œI donâ€™t think any well-meaning person would shun a hospital, because thatâ€™s where salvation is. There might be a bit of resistance initially but I think people will accept routine testing as time goes on.â€
Would people avoid going to hospital to learn their HIV status? But what would it achieve? Testing the nation would be a mammoth exercise and, some argue, a futile one.
â€œOne can be HIV negative now and engage in risky behaviour the same evening. What is there to stop the transmission of HIV?â€ questions Mataka.
She explains that HIV can be in the bloodstream for three months before being detected, which means a comprehensive plan would involve testing the entire population every 12 weeks.
â€œThat would be a very expensive exercise,â€ Mwondela points out.
There is a psychological factor to consider, too. Many doctors are convinced that a person has to be mentally prepared to accept a positive test result and to commit to taking anti-retroviral drugs.
They stress the value of going voluntarily for a blood test and the importance of the pre- and post-test counselling.
Even then, people can be reluctant to tell their partners about their status. â€œWe have no way of policing those who are positive,â€ says Mataka.
â€œSo how are you going to protect the public? Unless you are going to stamp it on their foreheads. That would be a terrible, draconian measure to take against people.â€
The lure of mandatory testing is that it looks like a quick fix to a devastating problem.
But the ruling in Stanley Kingaipe and Charles Chookoleâ€™s case will bolster the arguments of those who believe compulsory HIV testing is too blunt an instrument for such a complex issue.