Today, Justice Ongúdi of the Milimani Constitutional and Human Rights Division was set to deliver judgment in Petition 447 of 2018; EM and 6 others vs Attorney General and Another. However, the same was postposed to 25th November 2022. The judge stated that the judgment was not ready. After 5 years of looking forward to finalise this matter and bring justice to people living with HIV, the petitioners have to contend with another week’s delay.
The crux of this petition was to challenge the constitutionality of section 26 of the Sexual Offences Act. KELIN and 6 other petitioners had filed this petition on 10th March 2018, highlighting how section 26 violated the Bill of Rights under the constitution being the right to protection from discrimination, freedom from cruel, inhuman and degrading treatment, right to dignity and right to health. The petitioners also highlighted how section 26 is unconstitutional by virtue of being vague and incapable of enforcement. By criminalizing transmission of HIV and other STIs, the petitioners showed how this kind of stigmatization could lead to possible negative impact on public health efforts to promote regular testing of HIV and STIs. The petitioners further highlighted how the section criminalizes low and no risk sexual activities and more so, how the section has the potential for discriminatory and irrational enforcement.
KELIN hopes that judgment will be delivered as indicated on 25th November 2022. We also hope that the court listens to the Petition and declare that Section 26 of the sexual offences act is inconsistent with the constitution in terms of article 2(4) of the Constitution and is wholly unconstitutional and should be struck from the statute.
PLEASE NOTE: The 1st – 6th petitioners request that their names and identity should not be disclosed in the media to protect them from further stigma and discrimination on the basis of their HIV status. They are therefore not available to give interviews.
To contribute to the discussions on this forum, follow KELIN on our social media platforms: @KELINKenya using the hashtag #Justice2Health. #positivejustice
For more information contact
Nyokabi Njogu
Legal Counsel
Kenya Legal and Ethical Issues Network on HIV & AIDS (KELIN)
Karen C, Kuwinda Lane, Off Langata Road
Po Box 112 – 00202 KNH
NAIROBI
Tel: 0790 111578
Email: litigation@kelinkenya.org
NAIROBI
