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.
After fifty days and nights in an overcrowded jail cell, the two TB patients have appeared in court, and were granted release. These men were imprisoned unjustly and illegally, and their liberation was called for by a wide coalition of civil society organizations in Kenya and internationally. Now, we must take steps to assure this never happens again. Continue reading
Mr H.M has been an employee in Consolata school since 1999.He started experiencing discrimination in course of his employment based on his health status.This resulted in being forced to disclose his Hiv + status to his boss.Prior to this,he was asked not to take a shower others were taking shower,The reason being that he could infect the children.His status was further disclosed to his colleagues.He was asked to resign by his boss (father Luciano).
This attitude is contrary to provision of the employment act and the Hiv/Aids prevention and control act.
A letter was written to Ministries in charge in regard to arrest and imprisonment of Kenyan two TB patients( Mr. Daniel Negtich, Mr. Henry Ngetich and Mr.Patrick Kipngetich Kirui).
Content of the letter
Facts of the case
Mr. Daniel Negtich, Mr. Henry Ngetich and Mr.Patrick Kipngetich Kirui were
arrested on the 12th day of August 2010 on the basis of the fact that they had severally defaulted
on their periodical prescribed medical treatment for TB. On their arrest they were remanded in
the Police cells with other accused person’s in remand. Daniel and Patrick were arraigned
It is something human rights organizations in the country are looking to change by calling for the implementation of the AIDS tribunal which was gazetted in December 2009. It is expected to seek legal redress for past injustices against people living with HIV.
The 2010 Human Rights Count report released in May 2010, which is the first of its kind in Kenya, revealed that 82.7 percent of people living with HIV face abuses ranging from loss of life, denial of social security as well as health care, among others.
It appears that people with TB are being imprisoned by the Gov’t instead of fixing the failing Kenyan TB program. Blaming patients for Program failures is no longer acceptable, and imprisoning them is an outrageous violation of their human rights. The World Care Council has written to Dr. Sitieneii seeking urgent clarification.
The answer to your second question is easy: yes, it is illegal to discriminate against an employee (or prospective employee) because of HIV status. The answer to the first part of your question is no. An employer cannot require an HIV test; it’s none of their business. An employer (or prospective employer) can ask you if are able to complete the essential functions of your job with or without a reasonable accommodation but cannot ask you about your medical condition.
Kenya does not have laws protecting workers from being fired- or not hired- because of sexual orientation, except the constitution which generally prohibits discrimination.
The HIV Prevention and Control Act, however, forbids discrimination in hiring or termination of the HIV positive.
Despite this, people continue to experience workplace discrimination based on their HIV status- sexual orientation notwithstanding. We believe that most cases can be resolved by educating both employers and employees about their legal rights and obligation. Often, neither side is aware of their status.
Although a person with HIV or AIDS is no risk to other employees, fear and prejudice sometimes lead to demands for for the firing of a person who is known or suspected to have HIV. It is unlawful to dismiss an employee with HIV, even if all the employees of the company refuse to work with that person. The employees discriminating against a worker living with HIV or AIDS should be disciplined for this unacceptable conduct. Continue reading
No. An employer may refuse to employ a person who is clearly too ill to work (for whatever reason). But to refuse to employ you simply because you are known or suspected to have HIV is unfairly discriminate against you on the grounds of HIV status and therefore unlawful. An employer could only refuse to employ you as a person with HIV if being HIV negative was an inherent requirement of the job.