Kenya

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Video and written reports for Beyond Blame: Challenging HIV Criminalisation at AIDS 2016 now available

08 Sep 2016
On 17 July 2016, approximately 150 advocates, activists, researchers, and community leaders met in Durban, South Africa, for Beyond Blame: Challenging HIV Criminalisation – a full-day pre-conference meeting preceding the 21st International AIDS Conference (AIDS 2016) to discuss progress on … More

Global advocacy highlights against HIV criminalisation presented at AIDS 2016

22 Jul 2016
Yesterday, at the International AIDS Conference in Durban, the HIV Justice Network and GNP+ presented highlights relating to global advocacy against HIV criminalisation based on updated research from our Advancing HIV Justice 2 report. Advancing HIV Justice: Building momentum in … More

African HIV criminalisation achievements and challenges highlighted at ICASA 2013

11 Dec 2013
The African continent has more countries with overly broad and vague HIV-specific laws relating to HIV non-disclosure, exposure and/or transmission than any other global region, nearly all of which have been enacted in the past decade. Although North America is … More

East Africa: Move Towards Common HIV/AIDS Law (IPS)

05 Dec 2009
Another excellent piece from the Inter Press Service News Agency, whose mission is to give voices to the voiceless. EAST AFRICA: Move Towards Common HIV/AIDS Law by Wambi Michael ARUSHA, Dec 4 (IPS) – All HIV-positive east Africans could soon … More

Kenya: Opinion piece criticising AIDS Control Act

31 Mar 2009
Aids Control Act ‘a mere shell’ By COLLINS OMONDIMonday, March 30 2009 at 19:16Daily Nation In Summary Special Programmes minister has left out some key provisions of the Act which are at the core of fighting stigma Lack of consent … More

Kenya: Unease over new HIV transmission law

13 Dec 2008
IRIN/PlusNews has published an interesting article analysing the potential impact of Kenya’s new criminal HIV transmission law, which was passed in 2006 but has yet to be impemented. KENYA: Unease over new HIV transmission law NAIROBI, 12 December 2008 (PlusNews) … More

Kenya: criminal HIV laws in full; discussed in thoughtful article

10 Oct 2008
A reader from Kenya writes to inform me that, “Kenya passed the Sexual Offences Act and the HIV Prevention and Control Act in 2006, and sections 26 and 24 of those acts, respectively, have rather broad provisions criminalizing HIV transmission.” … More

Last reviewed 01 June 2017

Country overview

The HIV and AIDS Prevention and Control Act 14 of 2006, Section 24 was vague and overly board. In addition, under section 24(7), it contravened privacy rights by allowing a medical practitioner who becomes aware of a patient’s HIV-positive status to inform anyone who has sexual contact with that patient. 

In 2010, AIDS Law Project sought a court order to prevent Section 24 (Prevention of transmission of HIV) of the HIV and AIDS Prevention and Control  Act 14 of 2006 from being operationalized. In March 2015, the Kenyan High Court ruled that Section 24 was unconstitutional, and suspended the law. The High Court ruling focused on the absence of a definition for “sexual contact”, holding that it is impossible to determine what acts were prohibited. It also found the provision does not meet the standards for a justifiable limitation of the Constitutional right to privacy.

However, Section 26 (Deliberate transmission of HIV or any other life threatening sexually transmitted disease) of the Sexual Offences Act No 3 of 2006 still remains and contains a vague and overly broad HIV criminalisation offence.

See Further reading

Specific laws

Specific law enacted Yes

Kenya: HIV and AIDS Prevention and Control Act 14 of 2006. PART VI - TRANSMISSION OF HIV. Section 24. Prevention of transmission http://www.chr.up.ac.za/undp/domestic/docs/legislation_35.pdf The Sexual Offences Act No 3 of 2006. Section 26. Deliberate transmission of HIV or any other life threatening sexually transmitted disease. http://www.ilo.org/wcmsp5/groups/public/---ed_protect/---protrav/---ilo_aids/documents/legaldocument/wcms_127528.pdf

Specific law criminalising HIV non disclosure, exposure, or transmission: Yes

Prosecuted using non-HIV specific laws: No

Prosecuted using both specific and non specific laws: No

Is non-disclosure actionable: No

Is exposure actionable: No

Is transmission actionable: No

Convictions

Number of convictions 1

At least one conviction under the HIV and AIDS Prevention and Control Act 14 of 2006 in 2014, plus additional HIV-related prosecutions under Kenya's The Sexual Offences Act No 3 of 2006. KELIN (2014). Punitive laws and policies affecting HIV responses in Kenya, page 21. http://kelinkenya.org/wp-content/uploads/2010/10/punitive-laws-practices-affecting-HIV-responses-in-Kenya.pdf

Laws

Applicable laws

HIV and AIDS Prevention and Control Act 14 of 2006. http://www.chr.up.ac.za/undp/domestic/docs/legislation_35.pdf

The Sexual Offences Act No 3 of 2006. http://www.ilo.org/wcmsp5/groups/public/---ed_protect/---protrav/---ilo_aids/documents/legaldocument/wcms_127528.pdf


Applicable key wording

Kenya: HIV and AIDS Prevention and Control Act 14 of 2006.

PART VI - TRANSMISSION OF HIV

24. Prevention of transmission 

(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.


The Sexual Offences Act No 3 of 2006. 

Section 26. Deliberate transmission of HIV or any other life threatening sexually transmitted disease.

(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.


Discussion

The following  media report summaries the High Courts decision to suspend Section 24 of the HIV and AIDS Prevention and Control Act 14 of 2006 in March 2015:

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.

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.

Kamau Muthoni (2015). Court nullifies section outlawing reckless spread of HIV. Standard Digital. 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

As a member of the SADC region, Malawi will be affected by the ‘Model Law, 2008'. 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. (see Further Reading).

 SADC region: parliamentary forum adopts motion on HIV criminalization (see Further Reading: Edwin J Bernard and Sally Cameron (2016). Advancing HIV Justice 2: Building momentum in global advocacy against HIV criminalisation.) Key agencies and members of parliament from across southern Africa came together in Botswana in May 2015 to interrogate HIV criminalisation in the Southern African Development Community (SADC) region. Convened by the AIDS and Rights Alliance for Southern Africa (ARASA) and the SADC Parliamentary Forum’s Human and Social Development and Special Programmes Standing Committee, it was attended by parliamentarians from Botswana, Democratic Republic of Congo, Lesotho, Malawi, Namibia, Seychelles, South Africa, Swaziland, Tanzania, Zambia and Zimbabwe. (See Further Reading: ARASA Facebook page. 27 May 2015).

 The meeting included expert presentations on the latest science and evidence-based thinking to educate parliamentarians so that they may lead, advocate and legislate on the basis of evidence rather than emotions. (See Further Reading: ARASA. ARASA and SADC PF Human and Social Development and Special Programmes Regional Standing Committee Meeting on Criminalisation of HIV exposure and transmission. 27 May 2015).

 In November 2015, the Plenary Assembly of the SADC Parliamentary Forum Resolution considered, took note of, and unanimously adopted a motion on HIV criminalisation, moved by Hon. Duma Boko of Botswana and seconded by Hon. Dr. Emamam Immam of South Africa. Members expressed concern that specific laws on HIV transmission, exposure and non-disclosure may not only be harmful to successful HIV prevention and care but may also infringe on human rights. The motion reaffirmed the obligations on SADC Member States to respect, protect, fulfil and promote human rights in all endeavours undertaken for the prevention and treatment of HIV; reiterated the critical role of Parliamentarians in enacting laws that support evidence-based HIV prevention and treatment interventions that conform with regional and international human rights frameworks; and called on Member States to consider rescinding and reviewing punitive laws specific to the prosecution of HIV transmission, exposure and non-disclosure. (See Further Reading: 7.3 Motion on Criminalisation of HIV Transmission, Exposure and Non-Disclosure in SADC Member States. Parliament of Zimbabwe Hansard. Tuesday, 1st March, 2016).

Further reading

Edwin J Bernard and Sally Cameron. Advancing HIV Justice 2: Building momentum in global advocacy against HIV criminalisation. HIV Justice Network and GNP+. Brighton/Amsterdam, April 2016. http://www.hivjustice.net/wp-content/uploads/2016/05/AHJ2.final2_.10May2016.pdf

Latest cases and news can be found at:  http://www.hivjustice.net/site/news/?country=117&from-month=-1&from-year=-1&to-month=-1&to-year=-1

Kenya: HIV and AIDS Prevention and Control Act 14 of 2006. http://www.chr.up.ac.za/undp/domestic/docs/legislation_35.pdf

 Laws of Kenya:  The Sexual Offences Act No 3 of 2006. http://www.ilo.org/wcmsp5/groups/public/---ed_protect/---protrav/---ilo_aids/documents/legaldocument/wcms_127528.pdf

7.3 Motion on Criminalisation of HIV Transmission, Exposure and Non-Disclosure in SADC Member States. Parliament of Zimbabwe Hansard. Tuesday, 1st March, 2016. www.parlzim.gov.zw/senate-hansard/senate-hansard-01-march-2016-vol-25-no-29

Aids Law Project v Attorney General & 3 others [2015] eKLR. http://kenyalaw.org/caselaw/cases/view/107033/

AIDS Law Project (2015). Case Analysis: Section 24 of the HIV and AIDS Prevention and Control Act Kenya: Reviewing AIDS Law Project v Attorney General & Anotherhttps://www.scribd.com/doc/279768417/Case-Analysis-Section-24-of-the-HIV-and-AIDS-Prevention-and-Control-Act-Kenya-Reviewing-AIDS-Law-Project-V-Attorney-General-Another-2015

Kamau Muthoni (2015). Court nullifies section outlawing reckless spread of HIV. Standard Digital. 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

ARASA Facebook page. 27 May 2015. https://www.facebook.com/AIDSandRightsAllianceforSouthernAfrica/photos/a.10153284189602305.1073741835.45271732304/10153284189502305/?type=1&theater

 ARASA (2015). ARASA and SADC PF Human and Social Development and Special Programmes Regional Standing Committee Meeting on Criminalisation of HIV exposure and transmission. 27 May 2015. http://www.arasa.info/news/arasa-and-sadc-pf-human-and-social-development-and-special-programmes-regional-standing-committee-meeting-criminalisation-hiv-ex/

Kenya Legal & Ethical Issues Network on HIV and AIDS (KELIN) (2014). Punitive laws and policies affecting HIV responses in Kenya. http://kelinkenya.org/wp-content/uploads/2010/10/punitive-laws-practices-affecting-HIV-responses-in-Kenya.pdf

Aids Law Project v Attorney General & another [2011] eKenyan Law Reports (KLR). http://kenyalaw.org/Downloads_FreeCases/81517.pdf

National Empowerment Network of People living with HIV/AIDS in Kenya (NEPHAK), GNP and UKAID (2010). Global Criminalisation Scan. Kenya country assessment 2009. http://criminalisation.gnpplus.net/sites/default/files/Kenyan%20Criminalisation%20Scan%20Country%20Assessment.pdf

Southern African Development Community (SADC) Parliamentary Forum, HIV and AIDS Programme (2008). Model law on HIV in Southern Africa. http://www.sadcpf.org/hiv/index.php?option=com_docman&task=cat_view&gid=67&limit=5&limitstart=0&order=date&dir=ASC&Itemid=137

 

Cases

Overview

There has been at least one conviction under Section 24 of the HIV and AIDS Prevention and Control Act 14 of 2006 in 2014, plus additional HIV-related prosecutions under Section 26 of the Sexual Offences Act No 3 of 2006. 

KELIN (2014). Punitive laws and policies affecting HIV responses in Kenya, page 21. http://kelinkenya.org/wp-content/uploads/2010/10/punitive-laws-practices-affecting-HIV-responses-in-...

Last reviewed 01 June 2017

Last reviewed 01 June 2017

Last reviewed 01 June 2017