"A Human Rights-Based Approach to HIV/AIDS: Examining the Legal Protections for People Living with the Disease in Kenya" by Ruth Muigai

The first case of HIV was diagnosed in Kenya in 1984. Since then the country has been continuously improving its laws, policies, and legal precedents. Initially, a chapter on legal issues was included in Sessional Paper No. 4 of 1997, and in June 2001, a task force was created to address legal issues related to HIV & AIDS. Following the release of the task force's report in July 2002, the HIV & AIDS Prevention and Control Bill, 2002 was drafted and passed into law in December 2006, becoming operational in February 2009. With the promulgation of the Constitution on August 27, 2010, the field of HIV reached a new milestone. As the supreme law of the land, the Constitution establishes standards that all other laws and policies must comply with.

Kenyan legislation protecting the rights of people living with HIV/AIDS is an essential component of Kenya's national HIV response. The Kenyan government has put in place several laws and policies aimed at promoting and protecting the rights of people living with HIV/AIDS.The Kenyan Constitution recognizes and protects the rights of people living with HIV/AIDS. Article 43 of the Constitution provides for the right to the highest attainable standard of health, which includes the right to health care services, reproductive health care, and the right to accessible and adequate housing, and sanitation. Additionally, Article 27 prohibits discrimination on any grounds, including HIV/AIDS status, and provides for equal treatment before the law.

The most significant legislation is the HIV and AIDS Prevention and Control Act of 2006. This law provides for the prevention and control of HIV and AIDS, including measures to protect the rights and dignity of persons living with HIV/AIDS. It prohibits discrimination on the basis of HIV status and makes it illegal to deny a person employment, access to education, or health care services because of their HIV status. The law also recognizes the right of people living with HIV/AIDS to confidentiality and privacy in all matters relating to their health status.

Another important law is the Persons with Disabilities Act, 2003. This Act recognizes HIV/AIDS as a disability and prohibits discrimination against people living with HIV/AIDS. It requires that all public buildings and spaces be accessible to people living with disabilities, including those living with HIV/AIDS.

Furthermore, the HIV and AIDS Tribunal, established under the HIV and AIDS Prevention and Control Act of 2006, hears and determines complaints of discrimination against individuals living with HIV/AIDS. The tribunal has the power to award compensation to individuals who have suffered discrimination as a result of their HIV/AIDS status.

The Kenyan government policy through the Ministry of Health is geared towards protecting the rights of people living with HIV/AIDS. The National AIDS and STI Control Programme (NASCOP) has developed a number of policies and guidelines aimed at ensuring that the rights of people living with HIV/AIDS in Kenya are protected. Some of these policies include the Kenya National AIDS Strategic Plan (KNASP) and the HIV and AIDS Prevention and Control Act. The KNASP is a comprehensive strategy that aims to reduce the spread of HIV and ensure that people living with HIV/AIDS receive the care and support they need.

In addition, the Ministry of Health has also developed guidelines on HIV testing and counselling, prevention of mother-to-child transmission of HIV, and antiretroviral therapy. These guidelines aim to ensure that people living with HIV/AIDS receive appropriate treatment and care, and that their rights are protected throughout the treatment process.

Kenya has ratified several international treaties that protect the rights of people living with HIV/AIDS. These treaties include the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), and the Convention on the Rights of the Child (CRC).

The ICCPR protects the rights of individuals to life, freedom from torture and cruel, inhumane or degrading treatment, freedom of movement, and the right to work. Additionally, the ICESCR guarantees the right to health, including access to prevention, treatment, and care for HIV/AIDS. Furthermore, the CRC protects children living with HIV/AIDS from discrimination, ensuring access to healthcare, education, and social services.

The Kenyan government has ratified several African Union (AU) treaties aimed at protecting the rights of people living with HIV/AIDS. One such treaty is the African Charter on Human and People's Rights, which protects the right to life, health, and non-discrimination. The charter also prohibits torture, inhuman or degrading treatment, and protects the right to access healthcare services.

Another important treaty is the Protocol to the African Charter on Human and People's Rights on the Rights of Women in Africa, which prohibits discrimination against women and girls living with HIV/AIDS. The protocol also recognizes their right to access healthcare, including reproductive health services and treatment.

Additionally, Kenya has ratified the African Union's Abuja Declaration on HIV/AIDS, Tuberculosis, and Other Related Infectious Diseases, which commits African governments to increase funding for health and improve access to healthcare services, including for people living with HIV/AIDS.

Recent cases have highlighted protection of rights for people living with HIV/ AIDS. Below is a few recent ones:

1. Kenyan Network of Women with Aids (KENWA) & 3 others v. Attorney General, 2010 eKLR: The case was brought by an organization representing women living with HIV/AIDS, who challenged the constitutionality of certain provisions of the HIV and AIDS Prevention and Control Act. The provisions required mandatory testing of pregnant women and their partners, and disclosure of test results to spouses or sexual partners without their consent. The court held that these provisions violated the rights to privacy, dignity, and autonomy, and were therefore unconstitutional.
2. Republic v. Mutua, 2012 eKLR: The case involved a man who was charged with intentionally infecting his girlfriend with HIV. The court found him guilty of committing an offense under the HIV and AIDS Prevention and Control Act, which criminalizes intentional transmission of HIV. The court also noted that the Act was intended to promote public health by preventing the spread of HIV, and that criminalization of intentional transmission was a legitimate means of achieving this goal.
3. JN v. The Attorney General, 2014 eKLR: The case was brought by a woman who had been denied employment by the Kenyan police force because she was living with HIV. The court held that the decision to deny her employment was discriminatory and violated her rights to equality and non-discrimination. The court also noted that the government had a duty to provide reasonable accommodation to persons living with HIV in the workplace.
4. Republic v. Martin Waruguru, 2014 eKLR: The case involved a man who was charged with intentionally transmitting HIV to two women. The court found him guilty of committing an offense under the HIV and AIDS Prevention and Control Act, and sentenced him to life imprisonment. The court noted that intentional transmission of HIV was a serious offense that endangered public health, and that a stiff penalty was necessary to deter others from engaging in similar conduct.
5. E.M.A -vs- World Neighbours & Another, Case No. HAT 007 of 201: Although the claimant’s evidence raised suspicion that she may have been dismissed from employment on grounds of her HIV status, the evidence adduced did not demonstrate that that was the sole reason for her termination. Once the 1st respondent gave plausible evidence to the effect that the sole reason for the termination was restructuring caused by liquidity challenges the burden shifted to the claimant to adduce evidence to prove that that was not the case. Thus the claimant failed to discharge the burden of proof to the requisite standard.
6. B. O -vs- Meridian Equatorial Hospital, Case No. HAT 005 of 201: Section 13 of the HIV & AIDS Prevention and Control Act clearly prohibited compulsory testing or carrying out of any other HIV Tests which by their very nature were compulsory on patients, without their knowledge or consent. The conduct of the Respondent towards the Claimant amounted to mandatory HIV testing and contravened the provisions of section 13 of the HIV & AIDS Prevention and Control Act. Such mandatory HIV testing also violated the Claimants fundamental right to human dignity protected under article 28 of the Constitution as well as her fundamental right to liberty and the security of her person as protected under article 29 of the Constitution of Kenya, 2010
7. East Africa Centre for Law and Justice & 2 Others v. Attorney General & 3 Others, 2015 eKLR: The case was brought by three organizations working to promote the rights of persons living with HIV/AIDS, who challenged the constitutionality of certain provisions of the HIV and AIDS Prevention and Control Act. The provisions criminalized HIV transmission and exposure, and imposed mandatory testing and disclosure requirements. The court held that these provisions were unconstitutional and violated the rights to privacy, dignity, and autonomy.
8. Kenneth Ngondi Mungai v. Kenya Airways Limited, 2015 eKLR: The case involved a man who was denied employment as a pilot by Kenya Airways because he was living with HIV. The court held that the decision to deny him employment was discriminatory and violated his rights to equality and non-discrimination. The court also noted that the government had a duty to provide reasonable accommodation to persons living with HIV in the workplace.
9. Doctors for Life International (Kenya) & Others v. Attorney General & Others, 2016 eKLR: The case was brought by a group of doctors and organizations opposed to the use of condoms and other forms of contraception. They challenged the constitutionality of certain provisions of the HIV and AIDS Prevention and Control Act that promoted the use of condoms and other forms of contraception. The court held that these provisions were constitutional and consistent with the government's obligation to protect public health and prevent the spread of HIV.
10. AIDS Law Project v. Attorney General, Petition No. 97 of 2010: The High Court of Kenya received a petition from AIDS Law Project, which challenged the validity of Section 24 of the HIV and AIDS Prevention and Control Act, No. 14 of 2006. This section was implemented on December 1, 2010, through Legal Notice No. 180 of 2010. The Attorney General responded to the petition, stating that the Constitution should be interpreted holistically and that individual rights and freedoms outlined in the Constitution are not absolute, but can be curtailed within the confines of the Constitution. Additionally, the Attorney General noted that the Constitution establishes a framework for limiting certain rights and fundamental freedoms.
11. HIV and AIDS Tribunal at Nairobi, HAT Cause No. 030 of 2019: In this case, the petitioner was a woman who alleged that she had been unfairly dismissed from her job due to her HIV-positive status. The petitioner claimed that she had been open about her status with her employer, but was still subjected to discrimination and ultimately terminated from her position. The HIV and AIDS Tribunal at Nairobi found in favor of the petitioner, ruling that her dismissal was discriminatory and in violation of her rights under the Kenyan Constitution and the HIV and AIDS Prevention and Control Act. The Tribunal ordered the petitioner's reinstatement and awarded her compensation for the harm she had suffered as a result of the discrimination. This case is significant because it highlights the ongoing challenges faced by people living with HIV and AIDS in Kenya, despite the existence of laws and policies aimed at protecting their rights. Discrimination and stigma continue to be major barriers to HIV prevention, treatment, and care in Kenya and around the world.
12. C.N.M -vs- The Karen Hospital Limited, Case No. HAT 008 of 2015: the claimant was compelled to undergo HIV testing without her consent and also without her informed consent. Therefore, the Respondent was found liable to the claimant for the tort of compelling her to undergo HIV testing without informed consent contrary to Sections 13 and 14 of HAPCA.

HIV/AIDS rights protection is important for several reasons. First, it is a matter of human rights. Every individual has the right to live free from discrimination, and people living with HIV/AIDS are no exception. Discrimination against individuals living with HIV/AIDS can take various forms, including denial of employment, access to healthcare, and other basic services.

Second, protecting the rights of people living with HIV/AIDS is critical to addressing the global HIV/AIDS epidemic. By reducing the stigma and discrimination associated with the disease, individuals living with HIV/AIDS are more likely to seek testing, treatment, and support, which can ultimately reduce the spread of the disease.

Third, HIV/AIDS rights protection is crucial for the realization of other human rights. For example, individuals living with HIV/AIDS are often denied access to education, housing, and other basic services, which can have far-reaching consequences for their well-being and the well-being of their families and communities.

Moreover, HIV/AIDS rights protection is also linked to social justice and equity. People living with HIV/AIDS are often marginalized and vulnerable, and without adequate protections, they may experience further marginalization and discrimination. Therefore, HIV/AIDS rights protection is crucial in ensuring that everyone, regardless of their health status, has access to equal opportunities and protection under the law.

There are several ways that Kenya can better protect the rights of people living with HIV/AIDS, both legally and socially. Here are some potential suggestions:

1. Strengthen legal frameworks: Kenya can improve its legal frameworks for protecting the rights of people living with HIV/AIDS by ensuring that all relevant laws and regulations are in place and consistently enforced. This includes strengthening anti-discrimination laws, ensuring that HIV/AIDS-related crimes are prosecuted to the fullest extent of the law, and providing legal aid and support to people living with HIV/AIDS who face discrimination or other legal challenges.
2. Increase public education and awareness: Many of the challenges facing people living with HIV/AIDS in Kenya are due to stigma and misinformation about the virus. Kenya can work to increase public education and awareness about HIV/AIDS through targeted campaigns and initiatives that seek to dispel myths and promote accurate information about the virus.
3. Expand access to healthcare: People living with HIV/AIDS often require specialized healthcare and treatment, and access to this care can be limited in many parts of Kenya. By expanding access to healthcare, including through increased funding for HIV/AIDS treatment and prevention programs, Kenya can help to protect the health and well-being of people living with the virus.
4. Strengthen community support networks: People living with HIV/AIDS often face isolation and discrimination, which can exacerbate the challenges they face. By strengthening community support networks, including through support groups and other initiatives, Kenya can help to create a more supportive and inclusive environment for people living with HIV/AIDS.
5. Promote workplace rights: People living with HIV/AIDS may face discrimination in the workplace, including being denied employment or being fired because of their status. Kenya can work to promote workplace rights for people living with HIV/AIDS, including through anti-discrimination laws and policies that require employers to provide reasonable accommodations to employees living with the virus.

What about the Children??

According to the Ministry of Health, 1.4 million people are living with HIV with about 10 per cent being children aged 0-14.

Children living with HIV/AIDS in Kenya face numerous challenges that impact their ability to access healthcare, education, and social services. According to UNAIDS, there were an estimated 150,000 children living with HIV in Kenya in 2020, with only 62% receiving antiretroviral therapy (ART) (UNAIDS, 2021).?

The Kenyan Constitution of 2010 provides a legal framework for the protection of the rights of children living with HIV/AIDS. Article 53(1) of the Constitution recognizes the rights of children, including the right to basic healthcare, nutrition, shelter, and protection from abuse, neglect, and harmful cultural practices. Additionally, Article 43(1)(a) recognizes the right to the highest attainable standard of health, which includes access to healthcare services, including ART.

The Children Act of 2001 also provides a legal framework for the protection of children living with HIV/AIDS. Section 4 of the Act recognizes the best interests of the child as a primary consideration in all actions concerning children. The Act also recognizes the right of children to access healthcare services, including ART, and provides for the protection of children from discrimination on the basis of their HIV status.

Despite the legal framework in place to protect the rights of children living with HIV/AIDS, there are gaps that need to be addressed. One of the main challenges is the lack of access to healthcare services, particularly in rural areas. According to a report by the Kenya National Bureau of Statistics, only 45.7% of the rural population has access to basic healthcare services (KNBS, 2020). This lack of access to healthcare services limits the ability of children living with HIV/AIDS to access ART and other essential healthcare services.

Another challenge is the stigma and discrimination faced by children living with HIV/AIDS. According to a study conducted by the International Journal of Pediatrics, children living with HIV/AIDS in Kenya face stigmatization and discrimination from family members, peers, and healthcare providers, which affects their mental health and ability to access healthcare services (Nyandiko et al., 2015). This stigma and discrimination can lead to children dropping out of school, isolation, and exclusion from social services.

To better protect the rights of children living with HIV/AIDS in Kenya, there is a need to address the gaps in the legal framework. One potential solution is to increase access to healthcare services, particularly in rural areas. This can be achieved through the expansion of healthcare facilities, training of healthcare providers, and the development of outreach programs to reach children in remote areas.

Another solution is to address stigma and discrimination against children living with HIV/AIDS. This can be achieved through awareness campaigns to educate the public about HIV/AIDS and the rights of children living with the virus. Healthcare providers should also receive training on how to provide non-discriminatory care to children living with HIV/AIDS.

In conclusion, this piece highlights the significant challenges faced by people living with HIV/AIDS in Kenya and argues for the adoption of a human rights-based approach to address these challenges. It emphasizes the need to protect the rights of people living with HIV/AIDS and promote their social and economic inclusion.

This analysis reveals that Kenya has made some progress in protecting the rights of people living with HIV/AIDS. However, there are still significant gaps in the legal framework that need to be addressed. It also identifies some of the key challenges faced by people living with HIV/AIDS in Kenya, including discrimination, stigmatization, and the criminalization of HIV transmission.

To address these challenges, a human rights-based approach is essential. This approach would involve ensuring that the rights of people living with HIV/AIDS are protected, and that they are treated with dignity and respect. It would also involve addressing the structural and systemic factors that contribute to discrimination and stigma, and promoting the social and economic inclusion of people living with HIV/AIDS.

Overall, there’s a compelling case for the urgent need to adopt a human rights-based approach to HIV/AIDS in Kenya. By addressing the legal protections for people living with the disease and ensuring that their rights are protected, we can create a more just and equitable society, where everyone has the opportunity to thrive.

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