The HIV/AIDS pandemic and the labour laws of Lesotho

• Author: Letzadzo Kometsi
• Date: 01 January 2013
• Published date: 01 January 2013
• Pages: 91-113
• DOI: 10.10520/EJC177233

THE HIV/AIDS PANDEMIC AND THE

LABOUR LAWS OF LESOTHO

Letzadzo Kometsi*

Abstract

Laws and policy documents have been developed in an attempt to

deal with the pandemic of HIV and AIDS. It is universally

recognized that HIV/ AIDS affects mostly the working

populations.

1

Hence the best place to concentrate efforts at

combating the disease is at the workplace. One of the methods of

dealing with this disease is through screening of HIV infection at

the workplace. This raises issues of discrimination where it may be

used as a yardstick to determine the employability of a person or

the mobility of an employee in the work ladder.

The Constitution of Lesotho provides that ‘Subject to the

provisions of subsections (4) and (5) no law shall make any

provision that is discriminatory either of itself or in its effect’

2

The

National AIDS Policy of Lesotho states in clear terms that to deny

a person employment on the basis of his or her HIV status is

tantamount to discrimination. Yet there are institutions which

have made it compulsory for any applicant to test HIV before

being employed. There seem to be very strong and persuasive

reasons for mandatory testing of HIV at all sections of the society

especially at the production sectors.

This paper argues that the path followed by Lesotho in policy

formulation seems to be heading towards making it mandatory for

every one to test for HIV/AIDS despite the constitutional

provisions and the principles of the policy. However, the solution

can be not to rely entirely on voluntary testing thus neglecting the

importance of knowing the HIV status of all employees in any one

organization-but reserve the power or right to demand mandatory

*Lecturer, Faculty of Law, National University of Lesotho. letzadzo@gmail.com

1

Monica Tabengwa: HIV/AIDS and the World of Work (Bonela. Botswana 2003, 3).

2

The Constitution of Lesotho 1993. Article 18

92 The HIV/AIDS Pandemic and the Labour Laws of Lesotho

testing for the employer where there are compelling reasons. In

other words, it is possible to have voluntary testing which relies

very heavily on availability of medication and other resources,

together with mandatory testing whenever a situation so

warrants-and this should apply to all sectors of the economy.

Introduction

The focus of this paper is on the application of the labour law of

Lesotho tocases of people affected by the HIV/AIDS pandemic in

Lesotho. This will be looked at by comparing two important sources

of employment in Lesotho, namely the National University of

Lesotho (NUL) and the Lesotho Defense Force (LDF).

3

These

institutions will be compared for purposes of demonstrating the

extremely varied legal approaches to the issue of HIV/AIDS at

work. While the NUL policy on HIV/AIDS seems to advocate a

gradual and resource based approach, the LDF approach is more

radical preventive, reservist and direct. Yet the NUL approach

ensures equality of treatment of all employees. From the perspective

of labour law it therefore is a very fair policy. On the other hand,

looked at from the perspective of labour law the LDF policy would

appear to be discriminatory.

This paper assumes that health is an important factor in the

productivity of any corporate entity. Dealing with HIV/AIDS

requires striking a balance between the interest of the employer and

the interest of the employee. One of the factors that should be taken into

account in dealing with the consequences of the HIV status of a prospective

or actual employee should be to ensure that productivity is assured by

ensuring protection of workers.

AIDS is an acronym for the Acquired Immune Deficiency Syndrome.

This means that the body’s immune system is no longer functioning

properly to defend itself against infections and other diseases. HIV

3

These institutions are reputed for high HIV infections and HIV/AIDS prevalence:

about 2% at the University and about 30% in the LDF (source interviews of

18/04/2011 and 16/03/2011respectively).