LESOTHO has never been top of my list of countries with a sparkling human rights record. That’s despite its strong showing over corruption associated with the Katse Dam project.

So I was delighted this week to find a new judgment in which the high court there, sitting as a constitutional court, took the army to task over its treatment of a soldier with HIV-Aids.

The case, argued in August with judgment delivered at the end of October, concerns a soldier in the Lesotho Defence Force – the court asked that neither he nor the other soldiers whose medical histories were discussed in the case should be named.

During 2006 the soldier, a private in the army, tested positive for HIV. His vision deteriorated rapidly and he consulted an ophthalmic surgeon in 2007 who concluded that the soldier was ‘legally blind’. That same year he was ordered by officers in the Lesotho Defence Force to appear before a medical board which produced a report saying that the soldier was blind as a consequence of his HIV status with a viral invasion of the retina and complicated cataracts.

The army recommended that the soldier be boarded as he was ‘permanently unfit to continue with military duties’. He was discharged from his post with effect from February 8, 2008; he had to quit the army house where he’d been living and to return his uniform. He tried to object but six months later, after threats from the army, he finally left. From then on he received a monthly pension and he began attending rehabilitation programmes for the visually impaired. Now he claims he is so healthy that he could carry out any task which someone in a similar situation can do.

As he recovered he began to analyse the way he’d been boarded and concluded that his constitutional rights had been violated in the way his discharge had been handled. Most of all he was angered by the fact that he had not been given a hearing before the decision was made to board him.

He also remembered that other soldiers, who developed physical disabilities during the course of their employment, had not been discharged. In his subsequent court application, challenging the validity of the army’s process and final decision, he noted the story of a lance corporal who had become permanently blind but who was given a job in the stores department within the army and was trained to do other work such as sewing. Then there was a brigadier who had gone blind in 2010 but who was still serving as a senior officer in the defence force. Finally he mentioned another private whose left leg had been amputated at the hip, but who was kept on in the army until he died in 2006.

Of all these soldiers the one who had gone blind as a result of HIV-AIDS was the only one who had not been given a chance to put his case on whether he should stay on and whether there was alternative work he could do. And he was also the only one who had been discharged.

The court found the actions of army officials were made worse by the steadfast rejection of the soldier’s repeated requests to put his case to senior officers. The real difference between him and the other soldiers was the ‘HIV element’, as a result of which he was ‘regarded as an unwanted element within the army.’

He had been treated in an ‘inhuman manner’ by his seniors. In Lesotho, said the court, laws and policies that in any way whatsoever discriminated against people living with HIV would, on the face of it, be unconstitutional.

So what was to be done to compensate the soldier who had been discriminated against in this way?

Perhaps this is where the judgment falls down: though the soldier had been wrongly treated the court said it couldn’t order his reinstatement because of the ‘logical and financial problems’ involved and the fact that there was a new head of the army. The court also felt it couldn’t order that the boarded soldier be given back pay since he had been getting his monthly pension since his discharge. The only course, found the court, was to award the soldier ‘constitutional damages’ of R50 000 with interest.

Even in the mountain kingdom R50 000 won’t go far however and I imagine our unnamed soldier would be wishing that the court had been more generous.

* In view of the court’s request that the identities of all those involved in medical reports should not be disclosed, the judgment in this case has not been published here.