Who: The Petition was filed in 2015 by KELIN, Children of God Relief Institute (Nyumbani), James Njenga Kamau and Millicent Kipsang to challenge an unconstitutional directive by the President. The Petition was filed against the Cabinet Secretary (CS) Ministry of Health; National AIDS Control Council (NACC); CS Ministry of Education, Science and Technology; CS Ministry of Interior and Co-ordination of National Government; and the Attorney General.
Why: In the unconstitutional directive, the President directed County Commissioners to work with County Directors of Education and Medical Services in collection of up-to-date data. This data would be used in preparation of a report which would include names of all school going children who are HIV positive, information on their guardians, number of expectant mothers who are HIV positive, and number of breastfeeding mothers who are HIV positive.
The Judgment set to be delivered will be instrumental in shaping the future discourse on issues pertaining to the privacy and confidentiality of data of persons living with HIV. This landmark judgment will also affect the future of policies around stigma and discrimination of PLHIV. Relatedly, the judgment is expected to provide proper guidance on presidential powers in relation to issuing of directives, more so where such directives are likely to lead to infringement of constitutional rights. In this Petition, KELIN and the other petitioners have asked the court for the following:
a) The court to declare that the particular presidential directive breaches constitutional rights of petitioners;
b) The court to grant an order compelling the respondents to destroy all data in their possession, collected as a result of the directive, linking names of persons living with HIV and their HIV status, within a period of 14 days. In the alternative, the court has been asked to direct them to codify the names collected as a result of the directive, and ensure that they are stored in a manner that does not link their names and their HIV status in a public document.
c) The court to grant an order compelling the 1st respondent to put in place within 90 days of the court’s judgment the privacy guidelines, in form of regulations as required by Section 20 of the HIV & AIDS Prevention and Control Act, on the collection and storage of data relating to HIV. When: Wednesday 7 December 2016 at 1430hrs.
Where: High Court of Kenya at Nairobi, Court No. 1 on 3rd Floor, Milimani Law Courts.
Court Documents
Supporting Affidavits (Petitioners)
Written Submissions (Petitioners)
Written submissions (Respondents)
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
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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)
4th Floor, Somak Building, Mombasa Road
P.O Box 112-00200, KNH
