LIST OF ABBREVIATIONS AND ACRONYMS

CLHIV-Children Living with HIV

CoK- Constitution of Kenya

HAPCA-HIV Aids Prevention and Control Act

HIV-Human Immunodeficiency Virus

IDUs-Injecting Drug Users

LGBTI-Lesbian Gay Bisexual Transgender and Intersex

MSM-Men having sex with men

NACC-National Aids Control Council

SOA-Sexual Offences Act

LIST OF INTERNATIONAL INSTRUMENTS

African Charter on the Rights of the Child

Convention on the Rights of the Child

List of Regional Instruments

The Convention on the Elimination of all forms or racial discrimination

The International Covenant on Civil and Political Rights.

The Universal Declaration of Human Rights.

United Nations Charter.

LIST OF STATUTES

Anti-Counterfeit Act

Constitution 2010

Employment Act

HIV Aids Prevention Act

Narcotic Drugs and Psychotropic Substance Act

Penal Code

Public Health

Act Sexual Offences Act

Introduction

Kenya has the joint third-largest HIV epidemic in the world (alongside Tanzania) with 1.6 million people living with HIV by 2018.In the same year, 25,000 people died from AIDS-related illnesses. While this is still high, the death rate has declined steadily from 64,000 in 2010.1 The first case of HIV in Kenya was detected in 1984. By the mid-1990s, HIV was one of the major causes of illness in the country, putting huge demands on the healthcare system as well as the economy. In 1996, 10.5% of Kenyans were living with HIV, although prevalence has almost halved since then, standing at 5.9% by 2015. This progress is mainly due to the rapid scaling up of HIV treatment and care.2 In 2016, 64% of people living with HIV were on treatment, 51% of whom were virally suppressed.3

History of the Legal Framework of HIV/AIDS in Kenya.

Despite recent progress in the response to the epidemic in Kenya, pervasive stigma, discrimination, and human rights violations associated with HIV remain serious challenges. To address these challenges.4 Kenya adopted the HIV and AIDS Prevention and Control Act (HAPCA) in 2006. A defining feature of HAPCA is the establishment of the HIV and AIDS Tribunal (hereinafter “tribunal”). The tribunal’s role is to “determine complaints arising out of any breach” of HAPCA. Unlike the 26 other sub-Saharan African countries that have adopted HIV-specific legislation, Kenya, through the creation of the tribunal, sought to address the often forgotten yet critical issue of enforcement of its HIV legislation.5 The tribunal was established as a statutory body to ensure the protection of human rights in the context of HIV within the limits described by HAPCA.6 While the tribunal is often lauded as a tool for access to justice, limited research has been done on this mechanism.7Beyond the curiosity that it may generate as the first and only HIV-specific judicial body in the world, is the tribunal an effective mechanism for ensuring the implementation and enforcement of HIV-related human rights?8

Several elements are generally taken into consideration when assessing the effectiveness of judicial and quasi-judicial bodies, including the ability to compel parties to appear before them and to comply with their decisions, the accessibility to the court for complainants, the timeline for decision, and the extent to which the decisions are based on sound interpretation of the law.9 For people living with HIV and their advocates, key concerns relating to access to justice and effective adjudication include court procedures that do not maintain confidentiality, limited knowledge of HIV and the legal issues that it raises within the judiciary, and lack of sensitivity to people living with HIV.10

The proposal for an HIV-specific law in Kenya can be traced to the Task Force on Legal Issues Relating to HIV and AIDS (hereinafter “task force”), established in June 2001 by the country’s attorney general, Amos Wako.11The task force was chaired by Ambrose Rachier, a lawyer and then-chairperson of KELIN, and comprised 13 members, four ex-officio members, and two secretaries.12 The members were lawyers, medical experts, religious leaders, and people living with HIV. The task force was mandated to review existing laws, policies, and practices relating to HIV in Kenya, and to recommend an appropriate response to the epidemic.13 Over the course of

11 months, the task force met with relevant ministries, members of parliament, medical professionals, religious leaders, non-governmental organizations, people living with HIV, sex workers, and members of the gay community.14 In its final report, submitted in June 2002, the task force highlighted 12 HIV-related legal issues of concern and made recommendations for addressing them. Among these recommendations, the task force called for the enactment of HIV- specific legislation “to be referred to as the HIV and AIDS Prevention and Control Act” and for the establishment of an “Employment Equity Tribunal for HIV and AIDS.”15 The main reason for recommending a special tribunal on HIV issues stemmed from concern that existing courts were too slow in delivering justice, had cumbersome procedures that hindered access to justice for people living with HIV, and were not sufficiently knowledgeable on HIV and the related legal and human rights issues. In September 2003, the HIV and AIDS Prevention and Control Bill was tabled before Parliament. The idea of the tribunal recommended by the task force was retained in the HIV Bill, but as a broader mechanism with a mandate to enforce all provisions in the Bill, not just those relating to employment. Parliament finally adopted HAPCA on December 5, 2006, and the president of Kenya assented to it on December 30, 2006.16 More than two years after HAPCA was adopted, however, it was still not in effect, due to a delay on the part of the responsible minister in setting a date for its commencement. HAPCA was finally commenced on March 30, 2009. By that time, the delay in operationalization of the Act had created great concern among civil society and contributed to legal action to compel the minister to operationalize this law.17Despite the Act’s commencement in 2009, the minister still did not bring several of its provisions into effect, namely sections 14 (consent to HIV testing), 18 (results of HIV test), 22 (disclosure of information), 24 (criminalization of HIV non-disclosure and exposure), and 39 (requirement for research).18 Finally, in November 2010, all HAPCA provisions were brought into effect except for section 39, which was still not in effect as of January 2016.19 According to Ambrose Rachier, opposition from the “research community” is responsible for the delay in operationalizing this provision, which requires that any HIV-related biomedical research conforms to the requirements of the Science and Technology Act of Kenya.

ACCESS TO JUSTICE: EVALUATING LAW, HEALTH AND HUMAN RIGHTS PROGRAMMES IN KENYA

In Kenya, human rights violations have a marked impact on the health of people living with HIV. Integrating legal literacy and legal services into healthcare appears to be an effective strategy to empower vulnerable groups and address underlying determinants of health.

Integrating legal support into health services is an important strategy for enabling people who are socially marginalized to access justice and address human rights violations that undermine their health. It facilitates holistic care and the realization of rights that have significance for underlying determinants of health, such as the right to education, to an adequate standard of living and to protection from violence and discrimination. It is a particularly valuable mechanism for improving access to justice in settings where people are vulnerable because of their gender, age or health condition. In the context of the global HIV response, legal empowerment has begun receiving recognition as an important indicator of health enhancement.

The Kenyan laws thus, the constitution, legislations, customary law and international law recognizes the children rights to education. There a couple of court cases have also been decided pertaining to the same. Pursuant to article 2 (5, 6) of the constitution of Kenya, pertinent international laws and legal principles are recognized as integral part of the Kenyan law. Kenya is a state party to the major human rights treaties. Kenya has ratified the CRC and the ACRWC. On the national level, key protections are laid down in the Constitution [2010], the HIV Prevention and Control Act [2006] and the Children’s Act [2001]. Kenya has adopted the monist approach as far as international law is concerned (Constitution, 2010; Article 2(5).However the High Court has in the past held that international conventions and treaties are „subordinate‟ to and ought to be in compliance with the Constitution(Wanjiku &Anor v AG & Anor, 2012].

Recently a Kenyan High court in P.A.O and others v Attorney General and another (hereinafter P.A.O) handed down a judgment in relation to sections 2, 32, and 34 of the  Anti-Counterfeit Act

13 of 2008 vis-à-vis Kenya’s obligations under international human rights law and the Constitution. For many Africans, access to medicines has remained a great challenge not least because of high prices mainly due to patents on these medicines. Although recent developments across Africa have shown that modest progress has been made in realizing access to medicines for people living with HIV, a great percentage of those in need of these medicines are not receiving them. One of the major obstacles to access to medicines in Africa are patents enjoyed by pharmaceutical companies on essential medicines such as antiretroviral drugs.

THE LEGAL FRAMEWORK OF HIV/AIDS IN KENYA

PROVISIONS OF THE CONSTITUTION IN RELATION TO HIV/AIDS

Article 2(4) Any law including customary law, which is inconsistent with constitution, is void to the extent of the inconsistency and act or omission in contravention of the constitution is valid. This therefore means that cultural practices that increase the risk of HIV infection or make people more vulnerable to infection are rendered unconstitutional.

Article 2(6) Any treaty or convention ratified by Kenya shall form part of the laws of Kenya under the Constitution. Thus, any treaty or convention which relates to HIV/AIDS and has been ratified by Kenya forms part of the laws of Kenya. Which includes but not limited to the;

  1. United Nations Charter.
  2. The Universal Declaration of Human Rights.
  3. The International Covenant on Civil and Political Right.
  4. The Convention on the Elimination of all forms or racial discrimination
  5. Various international labor organizations convention and recommendation. 

Article 19 (3) the rights and freedoms in the Bill of rights belong to each and every individual and are not granted by the state. Therefore People Living With HIV have the right to fundamental freedoms detailed in the Bill of Rights.

Article 20(1) that the bill of rights applies to all laws and binds all state organs and all persons thus speaks to each specific constitution norm’s range of application.

Article 21(1) it is the duty of the state to regulate the conduct of non-state actors to ensure they fulfill their obligations. The obligation to protect is understood to mean that the state must safeguard individual members of society from infringement of their rights by 3rd parties. Ensure adequacy of legal remedies or compensate for such infringements. The state is therefore duty bound to secure the well-being of People Living With HIV by fostering an environment that promotes the rights of people living with HIV. These include educating people on HIV and ensuring proper financing and resource allocation to realize the right to health of persons living with HIV.

Article 24 provides clear grounds for the legitimate limitation of rights. It provides that rights can be limited only in accordance with the law and only to the extent that is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.

Article 26(1) every person has the right to life. This creates a positive obligation on the government to protect life. This includes appropriate efforts to prevent HIV transmission and comprehensive measures to facilitate the treatment of people living with HIV. Thus unjustifiable legal restrictions on access to life-saving HIV prevention or treatment measures can be challenged in a court of law as they threaten the enjoyment and full realization of one’s right to life. This also guarantees the access to post-exposure prophylaxis for prevention of HIV following a rape incident. Persons Living with HIV can also task the government to ensure that it takes all reasonable measures possible to reduce infant mortality rate and increase life expectancy. In the famous case of P.O.A &2 Others vs. The Attorney General (2012) eKLR The Interested Party contended that the denial of access to affordable medicines as the implementation of the HIV/AIDS Act threatens, would lead to unnecessary pain and suffering that undermines the dignity and quality of life of people living with HIV and AIDS; that this would be a violation of their right to dignity as provided under Article 28 of the Constitution; that the Act has the potential to violate the right to family life as provided for under Article 45(1) of the Constitution yet family life is an inherent part of human dignity as normal family life is removed from people whose illness leaves them incapacitated and unable to care for themselves. The Court held that the fundamental right to life, human dignity and health as protected and envisaged by Articles 26(1), 28 and 43(1) of the Constitution encompasses access to affordable and essential drugs and medicines including generic drugs and medicines. In so far as the Anti-Counterfeit Act, 2008 severely limits or threatens to limit access to affordable and essential drugs and medicines including generic medicines for HIV and AIDS, it infringes on the petitioners’ right to life, human dignity and health guaranteed under Articles 26(1), 28 and 43(1) of the Constitution. It is incumbent on the state to reconsider the provisions of section 2 of the Anti-Counterfeit Act alongside its constitutional obligation to ensure that its citizens have access to the highest attainable standard of health and make appropriate amendments to ensure that the rights of petitioners and others dependent on generic medicines are not put in jeopardy.

Article 27 every person is equal before the law which includes the right to equal protection and equally benefit from the law.

Article 28 every person has inherent dignity and right to have dignity, and the right to have dignity, the state should ensure you have all the things that maintain your dignity.

Article 31 as read together with Section 21 of the HIV/AIDS Act every person has the right to privacy which includes the right information relating to their family or private affairs unnecessarily required or revealed. This article is relevant in ensuring that information about a person’s HIV status is kept confidential and should not be released by anyone without his/her consent. One has a right to keep information about their HIV status to themselves and cannot be forced to share this information against their free will. Example of breach of this right to privacy are:

  • Health care facilities testing pregnant mothers without their
  • Health care workers failing to maintain the confidentiality of patients HIV
  • Patients forced to disclose their medical diagnosis to their employer in order to obtain sick leave from

Article 41 as read together with Section 31 of the HIV/AIDS act every person has the right to fair labor practices. The Employment Act sets out the minimum standards applicable for conditions of employment, relating to health, among others. Under this Act, no employer shall discriminate directly or indirectly against an employee on grounds of HIV status, among others (section 5). The employer shall provide proper healthcare for his/her employees during serious illness. The employer can only discharge this function if the employee notifies the employer of the illness (section 34). The Act implies that there should be no discrimination on the grounds of HIV/AIDS status, and states in Section 46 (g) that HIV/AIDS does not constitute a fair reason for dismissal or for imposition of a disciplinary penalty on an employee.

Section 7 further notes that such information to be provided shall cover issues of confidentiality in the workplace and attitudes towards infected employees and workers. To promote confidentiality, Section 13 states that no employee shall be compelled to undergo an HIV test unless he/she is charged with a sexual offence under the Sexual Offences Act (2006).

In the case of V.M.K VS C.U.E.A (2013) eKLR the petitioner was awarded a sum of Ksh.5 million for being discriminated at the work on the basis of being HIV positive.

Article 43 as read together with Section 19 of the HIV/AIDS act it is clear that every person has the right to the highest attainable standards of health, which includes the right to health care services, accessible and adequate housing and reasonable standards of health which including reproductive health care services, accessible and adequate housing and reasonable standards of sanitation, to be free from hunger and to have adequate food of acceptable quality to clean and safe water in adequate quantities to social security and education.

Article 46 stipulates that consumers have the right to goods and services of reasonable quality in that persons living with HIV/AIDS are entitled to adequate drugs and quality services for the protection of their health. In 2020 there has been reports of expired antiretroviral drugs being administered to patients on second-line medication as asserted by an organization of young people living with HIV/AIDS, the Ministry contacted the health centers involved and those affected were swapped to in-date, effective treatment.

Article 47 & 48 outlines that every person has the right to fair administrative action that is expeditious, efficient, lawful reasonable and procedurally fair. The HIV/AIDS tribunal is established under Section 26 & 27 of the HIV/AIDS act the tribunal has been granted a broad mandate to hear and determine complaints arising out of any breach of the provisions of the Act. In hearing cases brought before it, the tribunal has been granted the powers of a subordinate court. It can therefore summon witnesses, take evidence under oath, or call for the production of books or other documents as evidence. Failure to attend or give evidence before the tribunal, without sufficient reason, when summoned is a criminal offense.

In deciding on complaints, the tribunal has the power to make any order that it deems appropriate. These orders may include payment of damages for present and future financial loss or for impairment of dignity or emotional and psychological suffering. This broad applicability of reasons for awarding damages is imperative in the context of HIV, where stigma and discriminatory attitudes encroach upon individual dignity and inflict emotional and psychological pain that may not necessarily be recognized before normal courts. Parties in whose favor damages or costs are awarded can obtain a certificate from the tribunal which, upon filing before the High Court, is deemed and executed as a decree of the High Court. Orders by the tribunal can also involve requiring that specific steps be taken to stop a discriminatory practice. Finally, the tribunal has the power to require respondents to make regular progress reports regarding the implementation of its orders.

SHORTCOMINGS OF VARIOUS LEGISLATION IN THE PREVENTATION, MAINTAINANCE AND TREATMENT OF HIV/AIDS IN KENYA.

This section will be looking at some of the sections of the legislation on HIV/AIDS in Kenya that do not offer effective prevention, management, control and treatment of HIV.

The legislations that will be looked at include: – The HIV and AIDS Prevention and Control Act, 2006, The Sexual Offences Act (2006), The Public Health Act, The Narcotic Drugs and Psychotropic Substances Act.

The HIV and AIDS Prevention and Control Act

In Kenya, the law and policy regarding HIV & AIDS has evolved over time from the development of Sessional Paper No. 4 of 1997 to provide a policy framework within which HIV & AIDS prevention and control would be undertaken. A task force on Legal issues relating to HIV & AIDS was established and its report launched in July 2002,20 which consequently led to the drafting of the HIV & AIDS Prevention and Control Bill. The Bill was passed into law, and became operational in February, 2009 and is known as the HIV & AIDS Prevention and Control Act (2006) (HAPCA). This is an Act of parliament which provides for the protection and promotion of public health and for the appropriate treatment, counselling, support and care of persons infected or at risk of HIV and AIDS infection. Below we discuss how the provision of Section 24 of the HAPCA hinders effective HIV responses.

With reference to section 24 of the HAPCA, KELIN in an advisory note21 dated 30 November, 2010 to the then Minister for Special Programs and the Attorney General outlined seven points as to why this section has a negative effect. They are summarized as follows:

  1. The section undermines already existing HIV prevention methods as it discourages people from getting tested and finding out their status as lack of knowledge of one’s status can be used as a defense in criminal cases.
  2. The section allows medical practitioners to disclose the HIV status of their patients to other sexual contacts; this will interfere with the delivery of health care and will frustrate the efforts of people from coming forward for testing as they may fear that information regarding their HIV status may be used against them in the criminal justice systems.
  3. The section promotes fear and stigma as it imposes a stereotype that People Living With HIV (PLHIV) are immoral and dangerous²²  criminals
  4. HIV prevention efforts are better advanced by information and education at the community level and the willingness to confront issues that contribute to high HIV prevalence and incidence among vulnerable and key populations rather than by the prosecution of suspected violators of Section
  5. In cases when individuals purposely or maliciously transmit the virus with the intent to harm others, they should face the law. However, in these extreme cases, best practice now indicates that the appropriate framework for processing such cases is the general criminal law rather than the HIV law.
  6. Placing a legal responsibility exclusively on the PLHIV for preventing transmission of the virus undermines the public health message that everyone should practice safe behaviors regardless of their HIV status.
  7. The application of the section oppresses women as the law is likely to be used to prosecute women more often than men as women are more likely to know their HIV status before their partners due to the HIV testing policy that compels all pregnant women to undergo HIV The women are likely to be blamed by their intimate partners, families and communities for “bringing HIV into the home”. This will increase the HIV related violence against women, increase evictions, ostracism, loss of property and inheritance and loss of child custody by women living with HIV.23

The same was echoed in the case of AIDS law project vs. Attorney General & 3 others (2015) eKLR the court held that section 24 of the Act is unconstitutional for being vague and lacking certainty. The same is also overboard and is likely to violate the right to privacy as shrined under Article 31 of the constitution, it is clear that the right to privacy is one of fundamental rights enshrined in the provisions of Article 24 of the constitution must be satisfied .The limitation to privacy imposed does not satisfy the requirements of Article 24 of the constitution.

In this section, even where one takes precaution, to reduce the chances of infecting another person, and does not actually infect the other party one is still likely to be prosecuted under section 26 (1)

(b) of the Sexual Offences Act. Further, it brings in the aspect of marriage by stating that one can be prosecuted under section 26 (1) of the Sexual Offences Act whether or not they are married to the sexual contact. Unlike Section 24 of the HIV/AIDS Act which requires the person who is living with HIV to take reasonable measures and precautions to prevent transmission, and inform their sexual contacts of their status in advance, section 26 of the Sexual Offences Act does not give such options. The emphasis on section 26 of the Sexual Offences Act is the commission of the act of putting one at a risk of getting infected, not taking into account whether ones gets infected or not. Section 26 (7) of the Sexual Offences Act provides Without prejudice to any other defense or limitation that may be available under any law, no claim shall lie and no set-off shall operate against a) The state b) any Minister; or c) any medical practitioner or designated persons. The effect of this section is that a person who feels aggrieved by the application of Section 26 (2) of the Sexual Offences Act to their person cannot institute a claim against the state, minister or the medical practitioner for the damages suffered as a result of the application of that section.

A magistrate’s court sitting in Lowdar on 30 June, 2012, convicted a person under the provisions of Section 26 of the SOA. This happened in the criminal case Republic Vs Peter Erukudi and Mary Itoot Ebenyo (UN reported). The case involved and accused person who was involved in a gang rape incident. During the proceedings it was revealed by the co-accused that she knew that the first accused was HIV positive. Medical records submitted to the court indicated 25 punitive laws and practices affecting HIV responses in Kenya that the complaint was HIV positive and infected with syphilis. The tests were done after the rape incident by a government doctor. It’s on the basis of this that the court convicted the 1st accused to a life sentence under the provisions of Section 26(1) of the SOA in addition to a conviction for gang rape.

In spite of this proclamation of intent by the drafters, the content of the Act suggests a different and grimmer reality for children living with HIVAIDS. Firstly, the preamble does not recognize specific vulnerable groups such as children, MSM, prisoners, LGBTI and women, among others. It is argued that this Act has forced these vulnerable groups to go underground. They are unable to access comprehensive health care services, education on HIVAIDS care, treatment and support, thus making them more vulnerable.

Secondly, the preamble places a significant emphasis on adults and as such it is argued that the legislation seems to adopt a “first adults then children approach.” By not setting out a specific category of vulnerable groups such as children, it is argued that the Act has restricted access to information and education for children and this adversely affects Children Living with HIV (CLHIV). Third, the Act stipulates that anyone under the age of 18 needs parental consent for testing (GoK, 2006; sec 14(1) b).The expression “mature minor” is not defined in the legal framework. Confidentiality of a child’s HIV status is compromised by the law as the results are released to the parents (GoK, 2006;sec 18(1) b & 22(1) c).The parents may opt to conceal this information due to stigma or lack of knowledge as they are not informed though civic education or other ways. These have adverse effect on the realization of the right to education as a child that has engaged in risky behavior may not be aware of their HIVAIDS status and may end up in and out of school due to opportunistic infections. The law does not allow parents or other caregivers to authorize third parties, such as community health care workers, to take children for testing. Further, there are inadequate community health workers, social workers, and counsellors who can play a crucial role in educating and convincing caregivers to test children and in ensuring that Children are treated.

Section 14

It has been proven that it is only when the status of a pregnant woman is known that an opportunity is created for preventing new pediatric HIV infections. The government has given guidelines on how HIV testing and counseling should be carried out during pregnancy. The guidelines are as follows:

  1. All pregnant women of unknown HIV status should be offered opt-out testing at the first Antenatal Clinic
  2. Women who decline HIV testing at the first antenatal visit should have follow up counseling at subsequent visits, and offered HIV testing.
  3. Women presenting in labor without documented HIV testing should have opt-out testing done urgently.
  4. All facilities providing antenatal and maternity care must have capability for providing HIV testing at all hours of operation.
  5. Postnatal HIV counseling and testing should be offered to all women with unknown HIV From the above provisions, it is clear that the guidelines envision a situation where the informed consent of the pregnant women is sought before the HIV tests are done. However, in recent reports in the print media after an audit was carried out, medical professionals have been accused of testing pregnant women for HIV, syphilis and cervical cancer without their informed consent. It is our recommendation that medical professionals adhere to the provisions of Article 31 of the Constitution of Kenya (2010), the National Patients Charter40 and Section 14 of HIV/AIDS act which gives the patient the right to informed consent for diagnosis and treatment: they should be allowed to make decisions willingly and free from duress.

Section 22 of the HIV/AIDS act prohibits the disclosure of an HIV test result or any related assessment result of another person without his/her written consent.

The Public Health Act

It is an Act of parliament to make provisions for securing and maintaining health. The Act has been in force since 6 September, 1921 and has undergone numerous amendments since it came into force. Below we discuss Section 27 of the Public Health Act and its effects on TB treatment, care and prevention.24

According to the TB Human Rights Task force which was established by the Stop TB Partnership in a working document 25on TB and Human Rights, TB is a leading killer among people living with HIV, accounting for 26% of HIV associated deaths worldwide. They further document that the leading cause of death amongst prisoners across the world is TB and that poor prison conditions including overcrowding, poor ventilation, hygiene and poor nutrition fuel TB transmission and reactivation. Based on the above it’s evident that prison would not be the ideal place to isolate TB patients for treatment purposes.

Section 27 of the Public Health Act gives the public health officer the authority to remove and request for the isolation of persons who have been exposed to infection or may be in the incubation stage of an infectious disease while section 28 provides for the penalty for exposure to infectious substance.26

According to court documents and media reports, the two sections have in the past been used to unconstitutionally incarcerate tuberculosis “TB” patients for “failure to adhere” to TB treatment. The patients are arraigned in court and convicted for up to seven or eight months or until the satisfactory completion of their TB treatment.27 The manner and conditions of the incarceration endanger the patients’ and prison population health. In any event, the prison conditions are ideal for the rapid transmission of TB, thereby placing the public, including the prisoners, at extremely high risk of infection. Further, the Kenyan prisons do not have isolation or medical facilities where proper care and treatment of TB patients can be done.28

The High Court sitting in Eldoret in Petition No. 3 of 2010 Daniel Ng’etich & Another v The Attorney General & Others (Unreported)29 while giving an order for the release of the petitioners, observed that the action to have them imprisoned was unconstitutional and not in compliance with the Public Health Act that it was purportedly grounded on. Similarly, in the High Court sitting in Embu in Miscellaneous Criminal Application No. 24 of 2011 Simon Maregwa Githiru v Republic (unreported)30where the applicant was convicted for willfully exposing and spreading infectious disease (tuberculosis) contrary to section 28 of the Public Health Act. The Court in ordering the release of the applicant wondered why the lower court did not empathize with the applicant who was a TB patient and considered the wide range of non-custodial sentences provided in law.

KELIN in its advisory note31 together with other civil society organizations to the Government of Kenya through select Cabinet Ministers and made recommendations on the subject. The recommendations can be summarized as:

  1. Public health policy makers and officers need to combine medical and socio- cultural aspects of TB patient empowerment and community mobilization to ensure effective behaviors in the management of infectious and other diseases.
  2. It is important to use a patient and community centered approach, as clearly spelt out in the Stop TB Strategy, 32which calls for empowering TB patients and communities in the management, control and treatment of TB.
  3. Government ministries should ensure the prudent utilization of resources availed to the country to help improve the standard of care of persons who have infectious diseases.
  4. There is evidence that community based programmed for TB care work, and the government should adopt programming that upholds both public health and human rights since they are not mutually exclusive. 33

    The Narcotic Drugs and Psychotropic Substances Act.

    This Act was assented into law on 8 July, 1994 and commenced operation on 26 August, 1994. The objective of the Act is to make provisions with respect to the control of the possession of, and trafficking in, narcotic drugs and psychotropic substances and cultivation of certain plants; to provide for the forfeiture of property derived from, or used in, illicit traffic in narcotic drugs and psychotropic substances.34

    According to Open Society Foundations, in their recent publication Bringing Justice to Health35, the Coastal towns of Lamu, Malindi and Mombasa are the epicenters of Kenya’s injection drug use epidemic. The National AIDS Control Council (NACC) estimates that people who use drugs account for 3.8 percent of new HIV infections in the country. The Kenyan government has favored criminalization over treatment in dealing with the drug using population.36

    In February, 2011, NACC announced a plan to address HIV prevention and treatment as part of a comprehensive national program of care and treatment of injecting drug users. This plan was endorsed during a national stakeholders meeting for government, civil society and key bilateral and international organizations. An action plan to address HIV prevention was adopted. Thecomprehensive package for HIV prevention was endorsed by a workshop for members of parliament, also convened by NACC.37

    Despite the endorsement of the plan, which included provision of clean and sterile needles and syringes to those who inject drugs and the roll out of the same, law enforcement officers have continued to arrest and charge outreach workers who have been assigned the duty of providing the IDUs with the clean syringes and needles. This was clear and evident during the Regional Capacity Building workshop for senior law enforcement officers on HIV, Human Rights and the Law held in Nairobi from 17th -19th July, 2013. The workshop was co-organized by KELIN with support from UNDP and the UN Joint Programme on HIV in Kenya.

    From the testimony of a former IDU38and now an outreach worker, it was clear that police raids and arrests of outreach centers and workers affect the delivery of services to IDUs. Those raids keep interveners away from the drug dens and also keep the IDUs away from the centers; the IDUs then share contaminated needles and syringes. This was corroborated by the Executive Director of Reach Out Centre, an organization that works on harm reduction and HIV programmes for IDUs. He noted that police raids and arrests frequently hamper intervention efforts.

    Section 5 (1) (b) & (d) have been and can be used to bring criminal charges against people giving services aimed at reducing the harm caused to the health of injecting drug users.

    The danger in the implementation of this section is that while harm reduction practices like provision of clean syringes and needles to the injecting drug users is encouraged, many a times police arrest and charge those providing these services under the above-named sections.

    According to UNAIDS 2013 Global Report39, amongst the recommended services for prevention of new HIV infections among people who inject drugs are HIV testing and counselling, sterile injecting equipment (through needle and syringe programmes) opioid substitution therapy, antiretroviral therapy and other health and social services.

    CONCLUSION AND RECOMMENDATIONS.

    The impact of the implementation of discriminative laws and polices cannot be overemphasized. It negates the key interventions put in place to effectively respond to HIV in Kenya.

    Some of the recommendations and policy considerations that policy and law makers should bear in mind while making laws and policies that directly and indirectly affect HIV prevention, control and management should be guided by the following recommendations: –

    1. Protect against discrimination and protect privacy of the person.
    2. Address underlying causes of vulnerability to HIV infection and risk activities.
    3. Ensure access to HIV testing, counselling and support for risk reduction.
    4. Support programmes that seek to reduce the harm for key populations including IDUs, MSMs and sex workers to HIV infections.
    5. Ensure access to antiretroviral following exposure to the virus.
    6. Ensure access to TB treatment for all.
    7. Repeal and amend laws that impede HIV prevention, care, treatment and support.                                                

    After a sluggish start, due mainly to the delays in the entry into force of HAPCA, the tribunal is now starting to keep its promise of ensuring justice for people living with and affected by HIV in Kenya. Through its composition, mandate, procedures, and decisions, the tribunal is emerging as a positive experiment for enforcing HAPCA and for protecting the rights of people living with HIV. The tribunal addresses some of the challenges relating to access to justice and rights-based judicial decisions for people living with HIV, thanks, notably, to a bench that is sensitive to and knowledgeable on HIV issues, less cumbersome proceedings that protect confidentiality and privacy, and speedy rulings.40 Furthermore, as evidenced in its ruling in the case of YBA v. Brother Nicholas Banda and Three Others, the tribunal has adopted a purposeful interpretation of HAPCA and the Constitution of Kenya that advances the protection of fundamental rights for people living with HIV. The tribunal should be encouraged to more proactively use its mandate to recommend measures for the effective implementation of HAPCA, including by calling for the elaboration of guidelines on critical HIV-related human rights issues where they are needed to address unlawful practices such as involuntary sterilization.41 There is also a need to strengthen collaboration with non-governmental organizations and more systematically engage actors involved in the response to HIV, including health professionals and employers, as part of efforts to advance the implementation of HAPCA.