Kenya

Last updated on: 25 November 2015

Criminalisation of HIV transmission/exposure

Kenya
Whether Specific law enacted: 
Yes
Number of people prosecuted: 
-
Number of people convicted: 
-
Applicable law: 

HIV Prevention and Control Act 2006

ACT NO. 3 of 2006 - Sexual Offences Act

Key wording in the law: 

ACT NO. 3 of 2006 - Sexual Offences Act

26. (1) Any person who, having actual knowledge that he or she is infected with HIV or any other life threatening sexually transmitted disease intentionally, knowingly and willfully does anything or permits the doing of anything which he or she knows or ought to reasonably know -

(a) will infect another person with HIV or any other life threatening sexually transmitted disease;

(b) is likely to lead to another person being infected with HIV or any other life threatening sexually transmitted disease;

(c) will infect another person with any other sexually transmitted disease, shall be guilty of an offence, whether or not he or she is married to that other person, and shall be liable upon conviction to imprisonment for a term of not less fifteen years but which may be for life.

THE HIV AND AIDS PREVENTION AND CONTROL ACT, 2006

PART VI - TRANSMISSION OF HIV

24. (1) A person who is and is aware of being infected with HIV or is carrying and is aware of carrying the HIV virus shall a) take all reasonable measures and precautions to prevent the transmission of HIV to others; and

b) inform, in advance, any sexual contact or person with whom needles are shared of that fact.

(2) A person who is and is aware of being infected with HIV or who is carrying and is aware of carrying HIV antibodies shall not, knowingly or recklessly, place another person at risk of becoming infected with HIV unless that other person knew that fact and voluntarily accepted the risk of being infected.

(3) A person who contravenes the provisions of subsections (1) or (2) commits an offence and shall be liable upon conviction to a fine not exceeding five hundred thousand shillings or to imprisonment for a term not exceeding seven years, or to both such fine and imprisonment.

Key Cases: 

2015 Court nullifies section outlawing reckless spread of HIV

By Kamau Muthoni Updated Tuesday, March 24th 2015 at 00:00 GMT +3

http://www.standardmedia.co.ke/article/2000155804/court-nullifies-section-outlawing-reckless-spread-of-hiv

Kenya: The High Court has declared unconstitutional a section of the HIV and Aids Prevention and Control Act that sought to criminalise reckless spreading of the disease.

A three-judge bench comprising justices Mumbi Ngugi, Isaac Lenaola and George Odunga ruled Section 24, introduced by the State and criminalising the reckless spreading of HIV, was unclear and had no limits on which group of people was targeted.

"We so hold that Section 24 of the HIV and Aids Prevention and Control Act No. 14 of 2006 does not meet the principle of legality which is a component of the rule of law. The said section is vague and over-broad, and lacks certainty, especially with respect to the term 'sexual contact'," read part of the judgment.

As drafted, the section provided that a person who is aware of being infected with HIV or who is carrying and is aware of carrying HIV shall not, knowingly and recklessly, place another person at risk of becoming infected with HIV unless that other person knows that fact and voluntarily accepts the risk of being infected.

Further, the section read that the person shall take all reasonable measures and precautions to prevent the transmission of HIV to others; and inform, in advance, any sexual contact or person with whom needles are shared of that fact, failure to which one would be jailed, if convicted by a court, for a term not exceeding seven years or a fine not exceeding Sh500,000, or both.

Justice Lenaola ruled that the section of law failed to meet the legal requirement that an offence must be clearly defined in law.

"To retain that provision in the statute books would lead to an undesirable situation of the retention of legislation that provides for vague criminal offences which leave it to the court's subjective assessment whether a defendant is to be convicted or acquitted," said the judge.

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In the case, filed by a lobby group called Aids Law Project, the court heard that the same section had warranted other people surrounding an infected person to seek his or her status from a medical practitioner without their discretion or involvement.

The lobby group argued that such risk of unwarranted disclosure of confidential information was against the affected person's privacy.

 

Aids Law Project adopted the view that Section 24 of the Act was likely to promote fear and stigma as it imposed a stereotype that people living with HIV were immoral and dangerous criminals, and this would  negate the efforts being made to encourage people to live openly about their HIV status.

Discussion: 

From the information received, it appears that even though there are provisions in two Acts of Parliament criminalising the transmission of HIV, no one has yet been prosecuted for the offence.

From the information received and also from the scarcity of newspaper and other media articles, the Legislation did not receive much media attention. The one media article that the respondent saw on criminalisation was a follow up on the 2008 IAS Mexico conference. Under the Sexual offences Act, infecting a person with any other sexually transmitted disease is also a crime.

Under the Sexual Offences Act requires a person needs to have acted ‘intentionally, knowingly and willfully' where as ‘knowingly or recklessly' acting is culpable under the HIV and AIDS Prevention and Control Act.

Further information:

To provide specific guidance to Members of Parliament, Ministers, of SADC countries on the complex process of HIV legisla­tion, the SADC Parliamentary Forum, a consultative and advisory intergovernmental organization of national Parliaments in SADC countries, with the technical assistance of the AIDS and Human Rights Research Unit and the involvement of vari­ous stakeholders and regional civil society groups, has developed a model law on HIV to serve that purpose. The Model Law integrates the protection of human rights as a key element of an effective response to HIV. The Model Law has no provisions allowing criminalisation. As a member of the SADC region, it remains to be seen what impact the ‘Model Law' will have on the current Kenyan legislative provisions.

Survey respondents/Organisations working on HIV and the Law: 

 The AIDS LAW PROJEXT

http://www.aidslawproject.org/

 

Head Legal Adviser of NACC,
Ms. Magdelene Munyao
mnmgakeri@gmail.com

Organizations working on HIV and the Law

Oscar Foundation - Juma
P.O.BOX 9099-00200, Nairobi, Kenya
+254 20 2731964/5
oscarfoundation@justice.com

Further reading: 

An article in The Standard (Nairobi 22 August 2008) discusses legal questions with respect to HIV in Kenya, according to the Criminal HIV Transmission blog .

NEWS from the Guardian (UK) Novemebr 2015 http://www.theguardian.com/world/live/2015/nov/25/kenyan-lgbt-gay-rights-eric-gitari-any-questions

 

 

Other laws and policies with an impact on responses to HIV

Laws and regulations relating to entry, stay or residence in the country: 

The government of Kenya has not introduced any restrictive law regarding people with HIV or affected by AIDS.

Yellow fever vaccination is mandatory if arriving from endemic countries. 

Laws relating to same sex, sexual relations: 

Male to Male relationships: Not Legal

Punishments for male to male relationships: Imprisonment of 10 years or more

Female to Female Relationships: Legal

Marriage and Substitutes for Marriage: No law

For updated information, please go to: http://ilga.org

 

ALSO see NOVEMBER 2015 from the Guardian (UK) here

Laws relating to injecting drug use: 

Yes

Protective laws and policies for people living with HIV: 

No