The AIDS Law Project instituted a suit, in Petition No. 97 of 2010 against the Hon. Attorney General and the Director of Public Prosecutions in their capacities as the legal representatives of the Government. After listening to the parties and reading the pleadings, a three judge bench of the High Court in Nairobi delivered its judgment on the 18th March 2015 with regard to the constitutionality of section 24 of HIV and AIDS Prevention and Control Act and found in favour of AIDS Law Project.
Honorable Justice Isaac Lenaola, Mumbi Ngugi and George V Odunga held that Section 24 of the HIV and AIDS Prevention and Control Act is vague, overbroad and lacks legal certainty particularly with respect to the term ‘sexual contact’. The main contention by the Petitioners was that whereas the term ‘sexual contact’ is widely used in the said section and Act, Parliament did not make any attempt to define it and the same was left to the subjective views of either, the prosecutor, policeman or the court to determine its intention. It was further contended that this term was vague because one might suppose that it includes kissing, holding hands, exploratory sexual contact or penetrative intercourse.
The High Court held that the section was so broadly drafted that its interpretation could also apply to women who expose or transmit HIV to a child during pregnancy, delivery or breastfeeding. The court reaffirmed two principles of legality: that no one should be punished under a law unless it is sufficiently clear and certain to enable him to know what conduct is forbidden before he does it; and no one should be punished for any act which was not clearly ascertainably punishable when the act was done as espoused by article 50 (2) of the Constitution.
The court further held that Section 24 of the HIV and AIDS Prevention and Control Act contravened article 31 of the Constitution of Kenya in regard to the right to privacy of a person living with HIV who has disclosed their status to their ‘sexual contacts’; yet there was no corresponding obligation is place on recipients of such sensitive medical information to keep it confidential. Such unwarranted disclosure of information was therefore against the right to privacy as guaranteed by the Constitution and also confounds the situation by prejudicing people living with HIV and AIDS by exposing them to stigma, violence and discrimination.
The court recommended the State Law Office to review the HIV and AIDS Prevention and Control Act 2006 with a view of avoiding future litigation surrounding the said legislation.
Find a full copy of the judgment here.http://kenyalaw.org/caselaw/cases/view/107033/