On 27th January 2020 during the mention of Petition 447 of 2019, a case challenging the constitutionality of Section 26 of the Sexual Offences Act, (a law criminalizes deliberate transmission and or exposure of HIV) the court admitted HIV Justice Worldwide and the Secretariat of the joint United Nations Programme on HIV and AIDS (UNAIDS).
The court also made the following orders:
1. That the National AIDS Control Council be joined in the proceedings as an interested party;
2. That all respondents and interested parties are expected to file their responses to the petition within 21 days;
3. Petitioners are expected to file their submissions within 21 days upon service of responses from respondents, and all other parties are to file their submissions in response.
The Court however declined the petitioner’s applications to give oral evidence during the petition; and to have criminal proceedings against the first and second Petitioners halted, pending determination of the petition.
The court was of the opinion that the respondents did not intend to cross examine the petitioners hence there was no need for the petitioners to give oral evidence. The court was also of the opinion that there was need to prioritize determination of the main suit hence the insistence on giving directions to the main suit.
In the Petition filed on 10 December 2018, the petitioners highlight how the provision of the law is unconstitutional by virtue of being vague and incapable of enforcement and for violating the right to protection from discrimination.
The High court will now mention the case on 31st March 2020 when it will be able to give further directions on how the petition will proceed.
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Petition 447 of 2018
People living with HIV challenge discriminatory laws that criminalize HIV exposure and transmission
For more information, contact:
Ted Wandera
Program Officer
Kenya Legal and Ethical Issues Network on HIV/AIDS (KELIN)
4th Floor, Somak Building, Mombasa Road
Tel +254202515790; Cell +254788220300
Email:twandera@kelinkenya.org
