23rd May, we expected that counsel for the parties in Petition 447 of 2018, a case challenging the criminalization of the deliberate transmission of HIV would take place. However, this failed to happen as we were informed that the Presiding Judge was away on official duty and that the hearing had been rescheduled to 19th July 2022.
The petition filed by KELIN and 6 other petitioners challenges the constitutionality of the provisions of Section 26 of the Sexual Offences Act No. 3 of 2006 which criminalizes the deliberate transmission of HIV and other sexually transmitted diseases. This provision is unduly punitive to persons living with HIV. KELIN and the six petitioners contend that Section 26 unreasonably and unjustifiably limits the rights of people living with HIV, their families and loved ones. KELIN further states that the section perpetuates in the society discrimination, stigma and fear and thereby discourages people from testing for HIV, seeking treatment and disclosing their status.
All the parties have filed their written submissions, and all that remains is to highlight the salient arguments before the matter is reserved for judgment. In their submissions, the Petitioners, including KELIN, raises three key issues:
- That the factual and lived experiences of each of the first six petitioners demonstrate that Section 26 violates rights and is being used to harm persons living with HIV;
- that the said section limits several of the petitioners’ constitutional rights and fundamental freedoms and
- that there is no positive impact of laws specifically criminalizing the transmission and exposure of HIV.
The Attorney General together with the National AIDS Control Council have opposed the petition arguing that Section 26 of the Sexual Offences Act is constitutional as it is necessary to curb deliberate transmission due to the continued presence of HIV in Africa. It further argues that the rights of persons living or affected by HIV are not absolute, and that these must be weighed and interpreted with limitations provided under the Constitution.
The Office of the Director of Public Prosecutions did not file any response or submissions to the petition.
The Petitioners look forward to attending the hearing on 19th July 2022 which will bring us closer to concluding this long standing case.
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.
Submissions:
To contribute to the discussions on this forum, follow KELIN on our social media platforms: @KELINKenya using the hashtag #Justice2Health. #positivejustice
For more information:
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
