Petition 447 of 2018 EM and 6 others vs Attorney General and Another

On 10 March 2018 KELIN alongside six other petitioners filed a petition at the High Court of Kenya at Nairobi challenging the constitutionality of Section 26 of the Sexual Offences Act. This law criminalizes deliberate transmission and or exposure of life-threatening sexually transmitted disease including HIV. In the Petition, 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. KELIN’s intention of filling this case is to: highlight to the court how section 26 of the sexual offences act violates the right to freedom from discrimination, freedom from cruel, inhuman and degrading treatment, right to dignity and right to health in the constitution of Kenya; highlight to the possible negative impact that the section has on public health efforts to promote regular testing of HIV and STIs; to highlight how the section criminalizes low and no risk sexual activities; and to highlight how the section has the potential for discriminatory and irrational enforcement. KELIN hopes that after the court listens to the Petition it will 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.