Sterilisation case in court tomorrow

THE case in which 15 HIV-positive women are taking the Government to court for allegedly sterilising them without their consent will start in the High Court tomorrow.

The women – represented by the Legal Assistance Centre (LAC) – are accusing the Government and the Ministry of Health and Social Services of violating their rights by having them sterilised without their consent, and of discriminating against them based on their health status and because they are women. Each of the women is suing the Government for more than N$1 million in damages.But before evidence and arguments regarding their sterilisation can be presented in court, another issue has to be dealt with first.When the matter was first brought to court last month, the Government had raised the legal point that according to the Public Service Act of 1995, the women should have taken legal action within 12 months after the operations.Government argued that because most of the sterilisations had taken place more than a year before legal action was taken, the women did not have a case.But Norman Tjombe, Director of the LAC, argues that the Act doesn’t apply in this case, as it regulates the employment affairs of public servants, and not disputes between the public and the Government.He adds that if it turns out that the Act does apply, ‘then we will argue that the provisions of the Public Service Act are unconstitutional as it violates our clients’ rights to a fair trial and to equality.’Tjombe says that the Public Service Act question is an important one for all court actions that may arise against Government, as under the present argument by Government, ‘most, if not all, cases which are not labour matters (civil servants suing the Government for labour disputes), would not have complied with the provisions of the Public Service Act, and the Public Service Act severely limits ordinary person’s right to approach a Court to the extent it is a violation of the constitutional right to a fair trial.’He says that for this reason, ‘these provisions should not survive in a constitutional democracy.’It is only after these arguments have been heard in the court tomorrow, and only once judgement has been delivered in this regard, that the LAC can proceed to present its case on the sterilisation of the women. nangula@namibian.com.na