Kenya Legal and Ethical Issues Network on HIV (KELIN), The Children of GOD Relief Institute (Nyumbani) together with two persons living with HIV: James Njenga Kamau and Millicent Kipsang have filed petition 250 of 2015 dated 15 June, 2015 in the High Court of Kenya (Constitutional and Human Rights Division) in Nairobi.
The case has been filed under a certificate of urgency together with an application seeking temporary orders stopping the implementation of an unconstitutional directive by the president. The case will have far reaching ramifications for the realization of the right to privacy and confidentiality for persons living with and affected by HIV. It will be heard at 12.30 pm at the High Court of Kenya (Constitutional and Human Rights Division).
The case is about a directive issued on 23 February 2015 by the National Government, through His Excellency Hon. Uhuru Muigai Kenyatta to County Commissioners to work with County Directors of Education and Medical Services, to collect up-to-date data and prepare a report on 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 data was to be collected in a prescribed data matrix that would directly link the above mentioned persons with their HIV status. For the case of the children, they would be linked to their home area and school in addition to their HIV status. The information was to be submitted to his Excellency by 15 March, 2015.
The respondents in the matter are:
a. Cabinet Secretary, Ministry of Health (1st Respondent)
b. The National AIDS Control Council (2nd Respondent)
c. Cabinet Secretary, Ministry of Education, Science and Technology (3rd Respondent)
d. Cabinet Secretary, Ministry of Interior and Co-Ordination of National Government (4th Respondent)
e. The Attorney General (5th Respondent)
2.0 LEGAL ISSUES ARISING
The Petitioners intend to prove that as a result of the illegal and unconstitutional directive by His Excellency Hon. Uhuru Muigai Kenyatta, the following constitutional rights were violated:
a. The National Values and Principles as under Article 10
b. Equality and freedom from discrimination as under Article 27 (1-8).
c. The right to human dignity as under Article 28.
d. Freedom and security of the person as under Article 29 (d & f).
e. The right to privacy as under Article 31 (a).
f. The right to the highest attainable standard of health, which includes the right to reproductive health care services as under Article 43 (1) (a).
g. The rights of the consumer to be given services of reasonable quality, the information necessary for them to gain full benefit of the services, and protection of their health as in Article 46 (1) (a-c) of the Constitution.
h. The right to fair administrative action as under Article 47(2)
i. The rights of the Child as under Article 53(2)
The Petitioners intend to prove that the said violations are not justifiable under Article 25 (a) of the Constitution of Kenya, 2010 and are therefore unlawful. In addition, the Petitioners intend to prove that the violations are not reasonable or justifiable in an open and democratic society based on human dignity, equality and freedom under Article 24 (1) of the Constitution. The Petitioners will rely on research reports, stigma indexes and sworn affidavits of their testimony of events.
The Petitioners seek the following from the court:
a) A Declaration that the directive dated 23rd February 2015, issued by the National Government through H.E. Uhuru Muigai Kenyatta, C.G.H, The President of the Republic of Kenya, is a breach of the petitioners’ constitutional rights under Articles 10 (1) (a), (b), (c) & (2) (a), (b), 20, 21, 24, 27, 28, 29(1), 31 and (b), 43(1) (a) 46 (c), 47(2) AND 53(2) of the Constitution of Kenya, and that the same is null and void for all intent and purposes.
b) A Declaration that the actions and omissions of the Respondents in relation to the directive dated 23 February 2015, violate the fundamental rights and freedoms of Petitioners, the persons they represent and their families under Articles 10 (1) (a), (b), (c) & (2) (a), (b), 20, 21, 24, 27, 28, 29(1), 31 and (b), 43(1) (a) 46 (c), 47(2) AND 53(2) .
c) An order compelling the 1st – 4th respondents to destroy all data in their possession, collected as a result of the directive dated 23 February 2015, linking names of persons living with HIV and their HIV status, within a period of 14 days.
d) In the alternative and without prejudice to prayer (C) , that the court issues an order compelling the 1st – 4th respondent, within 14 days to codify the names collected as a result of the directive dated 23 February 2015, be stored in a manner that does not link their names and their HIV status in a public document.
e) 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 incorporating the following:
I. Detailed guidelines on the management of HIV&AIDS information by all persons who render HIV testing services; especially VCT centers;
II. Detailed guidelines on the management of HIV&AIDS information in hospitals and other medical institutions;
III. Detailed guidelines on the recording, collection, storage and use of HIV&AIDS information by government agencies for public health and other epidemiological purposes;
IV. Detailed guidelines on the dissemination and/or sharing of HIV&AIDS information between family members and relatives or within the home setting;
V. Detailed guidelines on the collection and use of HIV&AIDS information in the workplace;
VI. Detailed guidelines on the management of HIV&AIDS information in schools, colleges and institutions of higher learning; and
VII. Detailed guidelines on the management of HIV&AIDS information in prisons and other correctional institutions.
f) This Honourable Court issues an order directing the 1st – 4th Respondents to issue a circular, within 14 days of the Court’s Judgment informing their officers, employees and/or agents that the directive issued on 23 February 2015 is unconstitutional and therefore is null and void for all intent and purposes.
g) This Honourable Court issues an order directing the 1st and 2nd Respondents to conduct public awareness campaigns to educate citizens, persons living with and affected by HIV about their rights, stigma and discrimination and other matters relating to HIV in line with Sections 4-8 of the HIV & AIDS Prevention and Control Act 2006.
h) This honorable court issues and order directing the Respondents within 90 days of the court’s Judgment to file affidavits in this Court detailing out their compliance with prayers e, f and g.
For further information contact:
ALLAN ACHESA MALECHE
KENYA LEGAL AND ETHICAL ISSUES NETWORK ON HIV & AIDS (KELIN)
MOMBASA ROAD, SOMAK BUILDING 3TH FLOOR
PO BOX 112-00200, KNH
EMAIL: amaleche@kelinkenya.org
MOBILE NO: +254 708 389 870
Twitter Handle: @KELINKenya
NAIROBI.
