Banda v. Lekha

The Respondent, Lekha, dismissed the Applicant, Banda, from employment for reasons related to the Applicant’s health. The Applicant was dismissed “immediately and without any formality” after she attended “HIV Voluntary Counselling and Testing” and tested positive for HIV.

The Applicant claimed that during her employment she had never been incapacitated as a result of her HIV status and had consistently performed her job duties to the satisfaction of the Respondent. The Respondent did not attend court during the proceedings.

The Court found that the Applicant was unlawfully discriminated against and dismissed on the basis of her HIV status in violation of her constitutional rights to equality and fair labour practices. The Court explained that the burden of showing that the reason for the Applicant’s dismissal was valid lay with the Respondent. It noted that the Respondent did not appear in court during the proceedings and that the only reason proffered for the Applicant’s was dismissal was her HIV status.

The Court stated that “[i]ncapacity due to ill health is a ground for dismissal where the person is so sick that she cannot perform the functions for which she was employed.” The Court noted, however, that the Applicant testified that she was healthy and at no time unable to perform her job duties. The Court therefore held that the Applicant was dismissed solely on account of her HIV status.

The Court noted that section 20 of the Constitution prohibits unfair discrimination in any form, including on the basis of an individual’s HIV status. The Court cited the South African case Hoffman v. South African Airways, (10) BHRC 571 (2001), in which the Constitutional Court of South Africa held that the petitioner’s right to equality had been violated when he was declined employment on the basis of his HIV status. The Court stated that the Applicant “was unfairly discriminated against for exactly the same reasons as those in the Hoffman case.” The Court adopted the reasoning in Hoffman, noting that it was empowered to do so under section 11 (2) (c) of the Constitution, which allowed it to rely on comparable foreign case law. The Court noted that in Hoffman the Constitutional Court of South Africa relied partly on South Africa’s obligation under the African Charter of Human and Peoples’ Rights, which Malawi had also ratified, “to dismantle all of forms of discrimination.” The Court further noted that Malawi had formulated a national AIDS policy, which, among other things, aims to ensure that all people living with HIV “are equally protected under the law.”

"In the instant case the applicant averred that she was healthy and that at no time had she failed to perform her functions to the satisfaction of the respondent. In any case the respondent did not ask the applicant for a clinical examination to verify her employment suitability. The court finds therefore that the only reason that the respondent dismissed the applicant was because she had tested HIV positive." (p. 3)

"The position on anti discrimination enunciated in the [South African] Hoffman case fits squarely with the situation in Malawi. Malawi ratified the African Charter which came into force on 21 October 1986 and it also ratified Convention 111 on 22 March 1965 both of which, place a constitutional duty on the State to pass protective legislation and formulate national policy that give effect to fundamental rights entrenched in the Charter and the Convention. Malawi has formulated the National AIDS policy, which among other things is aimed at ensuring that all people affected or infected with HIV are equally protected under the law." (p. 3)

"In the instant case, the applicant was unfairly discriminated against for exactly the same reasons as those in the Hoffman Case. This court can adopt the reasoning in that case because in applying provisions of the Constitution, this court is empowered by section 11 (2) (c) of the Constitution to use comparable foreign case law. The reasoning leading to the finding of the Constitutional Court is in pari materia with the situation in Malawi, in terms of Malawi’s international obligations under anti discrimination Conventions; the Constitution; and national policy." (p. 4)