Uhuru HIV List declared unconstitutional

The High Court in Nairobi has on 7 December 2016 declared unconstitutional a presidential directive seeking to collect names of people living with HIV, including names of school going children among others. The court declared that the directive issued by H.E Uhuru Kenyatta on 23 February 2015 is in breach of the petitioner’s constitutional rights under Articles 31 and 53(2) which safeguard the right to privacy and best interest of the child respectively. The court further declared that the actions and omissions of the respondents in relation to the directive violated fundamental rights and freedoms of the petitioners.

Justice Lenaola further ordered the government agencies to codify, within 45 days, the names collected as a result of the directive and to store such data in a manner that does not link names and HIV status in a public document. The case was filed by KELIN, Children of God Relief Institute (Nyumbani), James Njenga Kamau and Millicent Kipsang challenging the directive in court on the grounds that it was a breach to the right to privacy and confidentiality and was likely to expose persons living with HIV to stigma and discrimination, among other human rights violations.

“We welcome the judgment to the extent that it has found the directive to be unconstitutional and upheld the right to privacy but express our disappointment at the failure to address the need of having privacy regulations as contemplated by Section 20 of the HIV & AIDS Prevention and Control Act. It is indeed a time to celebrate the judgment but only partially as work remains to be done to ensure that we have the regulations in place and that will be our next battle front,” said Allan Maleche – Advocate for the Petitioners and Executive Director of KELIN

“I was relieved to hear about the judgment because I was in default of the presidential directive because I had put on hold sending the data that was requested to the various government agencies pending further legal counsel. I was and I am fully supportive of the President’s initiative in getting the children into care and treatment but it is the method that I was against and am glad the court has declared so,” said Sister Mary Owens of Children of God Relief Institute (Nyumbani).

Court Documents

1.  Court Decree
2. Petition 250 of 2015 Judgment
3. Presidential Directive
4. Petition
5. Supporting Affidavits (Petitioners)
6. Written Submissions (Petitioners)
7. Written submissions (Respondents)
8. Submissions by Special Rapporteur on the Right to Health (friend of the court)

To contribute to the discussions on this forum follow KELIN on our social media platforms: Twitter: @KELINkenya using hashtag #UhuruHIVlist

Facebook: http://www.facebook.com/kelinkenya

For background on the case:  https://www.kelinkenya.org/2015/06/announcement-2/

For more information contact:
Allan Maleche

Advocate for the Petitioners and Executive Director (KELIN)

Kenya Legal and Ethical Issues Network on HIV & AIDS (KELIN)
4^th Floor, Somak Building, Mombasa Road
PO Box 112-00200, KNH
Email: amaleche@kelinkenya.org
Mobile No: +254 708389870