There was a report in the paper where two wannabe police recruits allege that they were denied entrance to the force because they refused to take a CD4 count (a test related to HIV-AIDS) (HERE). Nominally, this test is supposed to be strictly optional. It seems that the police force has admitted that this was the reason that they were denied recruitment. This obviously throws into doubt the claim that the section is ‘optional’.
This is stunning discrimination. What legitimate public purpose is served by the police force knowing a recruit’s HIV- or CD4-status? The police PRO claims that it is necessary to assess fitness. Isn’t that what a fitness test is for?
But does this violate the constitution?
I can think of at least four sections it potentially violates: s 18 protection from degrading treatment; s 20 equality before the law (protection from discrimination); s 22 protection from arbitrary search; and s 32 rights of workers.
The problem with s 20 is that it does not specifically protect from discrimination on grounds of health status, although this does not necessarily mean that a claim could not be made under this section. The problem with s 32 is that it does not protect (potential) employees from ‘unfair treatment’ but instead requires parliament to enact laws to this effect. (Does anyone know what this type of constitutional clause is called?)
The shocking thing for me has been the lack of activity on this matter from attorneys or the Law Society. Or are they waiting around for an appearance fee from an NGO? And before you accuse me of cynicism, bear in mind that the Law Society has actively prevented the establishment of legal clinics (community law centres) in Swaziland.
