The Botswana Network on Ethics, Law and HIV/AIDS (BONELA) appreciates and is highly encouraged by the passing of the Public Service Act of 2008 by the Parliament of Botswana on the 11th of December 2008 which was assented to by the President of Botswana, H. E. Lieutenant General Seretse Khama Ian Khama on the 26th of December 2008.
Although the Act is still to come into effect, what is of particular interest and relevance to BONELA is Section 7 (e) that prescribes that:
“In making decisions in respect of the appointment, or other matters affecting human resource management, every appointing authority and every supervising officer shall…not discriminate against any employee on the basis of sex, race, tribe, place of origin, national extraction, social origin, colour, creed, political opinion, marital status, health status, disability, pregnancy or any other ground…”
The practical effect of this provision is that no employee shall be given unfavourable treatment or prejudice because of an HIV positive status. Hence, employees will not be denied promotions or opportunities for further education because they are HIV positive. Furthermore, the provision entrenches the job security of employees living with HIV.
The Act is remarkable in the sense that job seekers are also protected from discrimination as their HIV status will not be used as a basis for discrimination. Uyapo Ndadi, BONELA Acting Director/ Legal Officer said the Act also extends to the protection of non-citizens who are presently subjected to pre-employment HIV testing as a pre-condition for employment in that those who are found to be HIV positive are denied employment in the public service. It can not be denied that this practice is discriminatory and BONELA is happy that the government has acknowledged it. He added that “this provision of the Act is a move in the right direction and will certainly improve Botswana’s human rights standing.
Ndadi said that the Act is also commendable as it deals with employees who have the propensity to disclose confidential information of other employees, including HIV status, as the culprits or perpetrators will be liable to a fine not exceeding P500 or imprisonment for a term not exceeding 6 months or both through Section 63 (1).
Ndadi however laments that the Public Service Act has inherent limitations as it only applies to public service servants and excludes private sector employees who are in the majority of cases victims of wanton abuse, prejudice and discrimination in the workplace because of their actual or presumed HIV positive status. This gap therefore needs to be plugged by amending our Employment Act to be consistent with the new Public Service Act. In this regard, BONELA shall therefore continue steadfastly with its HIV Employment Law Campaign.