HIV Prevention and Control Act 2006
ACT NO. 3 of 2006 - Sexual Offences Act
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.
Updated Tuesday, March 24th 2015 at 00:00 GMT +3
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.
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.
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.
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
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.
Male to Male relationships: Not Legal
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