The High Court of Kenya at Nairobi has set down the date of 17th November 2022 as the date for judgment in Petition 447 of 2018, a case challenging the criminalization of the deliberate transmission of HIV.
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. 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 to the petition and indicated to the court that it would rely on the submissions filed by the Attorney General.
The Court will also have the benefit of two amicus briefs, filed by HIV Justice Worldwide, and the Joint United Nations Programme on HIV and AIDS. In these briefs, the amici have set out the history of HIV criminalization laws and demonstrated comparative case studies where there has been legal reform that takes into account the tremendous scientific advances that have been made to prevent and treat HIV. They also demonstrate the manner in which these limit various human rights and obstruct the response to address the prevention and transmission of HIV by entrenching stigma.
The Petitioners look forward to receiving the court decision on 17th November 2022, which will bring us closer to concluding this long-standing case, five years after it was filed.
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.
Links to pleadings
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
