AIDS LAW PROJECT (ALP) – VS. – THE HON ATTORNEY GENERAL AND THE DIRECTOR OF PUBLIC PROSCUTIONS
This matter came up for hearing before Hon. Justice Musinga on the 15th February 2011.
The Government of Kenya, through the Minister of State for Special Programmes in Legal Notice no. 80 published on 5th November 2010 stated that the commencement date for the operationalisation of section 24 of the HIV and AIDS Prevention and Control Act would be the 1st December 2010.
ALP is challenging the legality and constitutionality of the provisions of section 24 of the HIV and AIDS Prevention and Control Act which provides that,
“…a person who is and is aware of being infected with HIV or is carrying and is aware of carrying the HIV virus shall-
(a) take all reasonable measures and precautions to prevent the transmission of HIV to others; and
(b) inform, in advance, any sexual contact or person with whom needles are shared of that fact.
(2) A person who is and is aware of being infected with HIV or who is carrying and is aware of carrying HIV shall not, knowingly and recklessly, place another person at risk of becoming infected with HIV unless that other person knew that fact and voluntarily accepted the risk of being infected.
The issues raised by ALP included the following:
• Section 24 of the Act discriminates against people living with HIV, women and members of vulnerable groups.
• The term “sexual contact” is not defined, is not a term of art and therefore does not provide sufficient guidance to the individual on how to determine what conduct would be legal (it is not used elsewhere and does not have any known definition. Vague laws are unconstitutional often in their own right (as they violate the right to due process and a fair trial) but will also consititute an unlawful violation of a protected right that they may interfere with.
• It was pointed out that under the Kenya national indicator survey of 2007 the reasons advanced for not testing by most respondents in the survey was low perception and negative. Meaning that by imposing criminal sanction out of knowledge of one’s status, section 24 would lead low uptake of testing by most Kenyans, because it could potentially put one at the risk of criminal sanction.
• The last question would be whether the limitation (if the court considered it to comply with the principle of legality) is reasonably justifiable in a democratic society (the proportionality principle is found in Article 24 of the Constitution). The current standards from UNAIDS and WHO which are generally to the effect that only deliberate (and not reckless or negligent) transmission of HIV can be considered at all justifiable. Even with deliberate transmission one has to be careful as the consequences may include a disincentive to be tested, and the disproportionate impact on vulnerable groups. This is against the background that in the absence of any evidence that criminalization of transmission does in fact reduce the transmission of HIV (which is the only governmental aim under which this can be justified) etc.
• In light of the same argument, it was pointed out that the term “sexual contact” and “inform in advance” could lead to an absurdity as it would depend on each judge, juror, or policeman to interpret this terms as the said term does not have any known legal definition. As a result it would be almost impossible for an average person on the streets to interpret its meaning and could therefore lead to capricious and arbitrary interpretations.
• It was also contended that section 24 was unconstitutional as article 27 of the constitution states that one should not discriminate against any other person based on their health status.
• On concerns raised by the judge on the possibilities of letting go malicious people intending to infect, section 26 of the Sexual Offences Act could take care of such situations as it provided for criminalization of willful transmission of HIV or any life threatening sexually transmitted disease.
• ALP recognized that there may be exceptional circumstances in which criminal prosecution is appropriate, for example in cases of willful, intentional, HIV transmission; however, existing provisions in the Sexual Offences Act are sufficient to address such situations.
The Attorney General responded as follows:
• That the said act has good intentions which are to prevent transmission of malicious infection with the HIV virus.
• The act does not condemn PLHIV per se, but it seeks to limit people who are out to intentionally and maliciously infect others, and these persons are not acting in public interest.
• That section 24 is clear and ordinary language has been used there is no ambiguity and can be read and understood by every lay man the section is not unconstitutional.
• He further stated that the legislature has enacted similar provisions for protection of the society under the public health act.
• In a balance of convenience it’s out to tilt in favour of the larger society. It’s in public interest that the orders granted should not be granted.
• On a balance of probability public interest overrides the interest of a section of the society staying the law at this point would raise the issues of separation of powers.
The ruling of this case shall be on the 29 March 2011.
See the following links:
Lobby questions law on Aids