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Mandatory HIV testing unconstitutional – PePBy Mirriam Chabala on 17 Aug 2017
Patriots for Economic Progress leader Sean Tembo says the Constitution has to be amended for President Edgar Lungu’s compulsory HIV testing policy to stand.
And Tembo says the court should not have dropped Hakainde Hichilema’s treason charge before allowing the State to provide the evidence it has against him.
Speaking when he featured on Hot FM’s Hot Seat programme today, Tembo said if government wanted to go ahead with the new policy on HIV/AIDS, they had to amend the Constitution.
“We do appreciate and recognise the severity of the HIV/AIDS scourge and the number of people it has taken. However, we do not support the pronouncement that was made by President Lungu to make HIV testing compulsory because it basically violates the provision of the Constitution under the Bill of Rights which guarantees the right to privacy. The right to privacy cannot be violated by any government policy whatsoever. If the government in general and President Lungu want to enforce that policy, what they would need to do is to amend the Constitution. So I think that the issue of the President being able to be the one to decide on behalf of the general citizenry to serve the public interest in having compulsory testing outweighs the need for privacy, I think he doesn’t have that mandate to make that decision on behalf of all Zambians,” Tembo said.
And Tembo said HH’s treason charge should not have been discontinued without allowing the State to present its evidence.
“If Hakainde’s case was a matter of public interest then why didn’t the President or government think about it before being visited by international dignitaries like the former Nigerian president and the Secretary General of the Commonwealth? We should have thought about that ourselves, it didn’t require those external people to come and apply pressure on us in order for us to make such a decision. As Patriots for Economic Progress, we have always insisted from the day Mr Hichilema was arrested that the incident which happened in Mongu did not constitute a treasonable offence although the State has always argued in its defence that they have additional evidence to support the Mongu incidence, that’s why the a trial should have pushed through so that all citizens of this country see what evidence the State had in addition to that video clip we saw about Mongu,” Tembo said.
He also said that the police were overzealous to arrest people before conducting proper investigations on them.
“I think the police are quite overzealous when it comes to effecting arrests before they conduct investigations or before they conclude their investigations but I must be quick to point out that this is something that has always been there. I am sure on several occasions you have come across cases even non political cases where you find that an accused is appearing in Court and the State opposes bail on account that if the accused is believed is going to interfere with investigations because investigations are ongoing, so the question is. Why should a person be arrested when you haven’t concluded your investigations?” Tembo wondered.
“What is supposed to happen is that you are supposed to conduct your investigations as enforcement wings and after you have gathered the necessary evidence, that’s when you are supposed to effect an arrest. So you will find that this trend of the police doing partial investigations and rushing to make an arrest has been there for several years in the past what has basically changed is that we are now seeing this to be pronounced because it is applying to politically inclined persons and that is what is making it more amplified but it has always been a problem in terms of the dispensation of criminal justice in this country.”
Meanwhile, Tembo said government’s decision to introduce a Political Parties Bill was a deliberate attempt by to create a de facto one party state.
“If you look at the newly introduced Political Parties Bill, you are going to realise that the spirit is totally wrong. The bill basically says that the constitution of opposition political parties is going to be dictated by the Minister, so how can a Minister who is a member of the ruling party which is a political party in itself dictate the constitution of another political party? That is ridiculous. I understand the Ministry of Justice is going to conduct consultative meetings on the same and I hope they will hear our submissions,” said Tembo.
“If they are going to use the arrogance of their numbers in Parliament to impose this bill on us then this will be another stumbling block and if this bill is enacted in its current form, we are not going to follow it or respect it even if it means breaking the law, we are going to do so because we are not going to allow our political rights trampled upon. If you read that bill in its current form, it is a deliberate attempt by the government to create a de facto one party state,” said Tembo.
About Mirriam Chabala
Mirriam Chabala is a Zambian journalist who covers current affairs and writes in-depth feature articles on social issues.
Email: mirriam [at] diggers [dot] news
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