AIDS Law Project v. Attorney General

This case summary and analysis was prepared in partnership with the International Reproductive and Sexual Health Law Programme of the University of Toronto and the Centre for Human Rights at the University of Pretoria for Legal Grounds III: Reproductive and Sexual Rights in Sub-Saharan African Courts.

Download Case

Summary of Facts
Analysis and Decision

AIDS Law Project submitted a petition before the High Court of Kenya challenging the enactment of Section 24 of the HIV and AIDS Prevention and Control Act, No. 14 of 2006 (the Act), which came into effect on 1 December 2010 pursuant to Legal Notice No. 180 of 2010.

Section 24 of the Act provides as follows:

A person who is and is aware of being infected with HIV or is carrying and is aware of carrying the HIV virus shall:
take all reasonable measures and precautions to prevent the transmission of HIV to others; and
inform, in advance, any sexual contact or person with whom needles are shared of that fact.
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.
A person who contravenes the provisions of subsections 1 or 2 commits an offence and shall be liable upon conviction to a fine not exceeding five hundred thousand shillings or to imprisonment for a term not exceeding seven years, or to both such fine and imprisonment.
A person referred to in subsection 1 or 2 may request any medical practitioner or any person approved by the Minister under section 16 to inform and counsel a sexual contact of the HIV status of that person.
A request under subsection 4 shall be in the prescribed form.
On receipt of a request made under subsection 4, the medical practitioner or approved person shall, whenever possible, comply with that request in person.
A medical practitioner who is responsible for the treatment of a person and who becomes aware that the person has not, after reasonable opportunity to do so:
complied with subsection 1 or 2;
Or made a request under subsection 4, may inform any sexual contact of that person of the HIV status of that person.
Any medical practitioner or approved person who informs a sexual contact as provided under subsection 6 or 7 shall not, by reason only of that action, be in breach of the provisions of this Act.

The Petitioner claimed that the cited provision contained language that was vague and overbroad, and should be declared invalid and unconstitutional because it failed to precisely communicate its purpose in law and therefore the law did not have a sufficient degree of certainty. Further, the Petitioner claimed that this provision was unconstitutional as it fosters discrimination against persons living with HIV (PLWH) on the basis of their health status. Such discrimination violates the rights guaranteed under Article 9 of the International Covenant on Civil and Political Rights (ICCPR) which has been incorporated into the Basic Law by Article 27 of the Constitution.

The Petitioner raised both human rights and public health arguments in support of the petition, directed against Section 24 specifically, but also the Act in general with regard to criminalization of HIV transmission. The Petitioner’s argue that the Act was contrary to Article 27(1) of the Constitution, which guarantees the right to equality of every person before the law, and equal protection and benefit of the law.

Moreover, the Petitioner submitted that criminalization of HIV transmission had negative implications on public health efforts to curb the spread of HIV. The Petitioner argued that the Act was likely to promote fear and stigma as it imposes negative stereotypes about PLWH; consequently, this discourages people from receiving testing to know and be open about their HIV status, especially as that information could be used against them in the criminal justice system, whereas a lack of knowledge of a person’s HIV status could be used as a defense to any criminal charges. Also, the Petitioner claimed that criminalization of transmission of HIV and the resultant stigma it fuels creates conditions which promote discrimination against women and vulnerable groups. The Petitioner highlighted how child-bearing women tend to know about their HIV status ahead of their sexual partners, due to the requirement that they undergo HIV-testing as part of their obstetric care.

The Petitioner submitted that better standards were promoted by the Joint United Nations Program on HIV/AIDS (“UNAIDS”) and the World Health Organization that only deliberate transmission of HIV should be criminalized, so as not to create disincentives to testing or adopt measures that result in a disproportionate impact on the vulnerable.

In response to the petition, the Attorney General argued the Constitution has to be read as a whole and that personal rights and freedoms recognized in the Constitution are not absolute, but can be deviated from within the limits of the Constitution. Furthermore, the Attorney General explained that the Constitution “provides a framework for the limitation of various rights and fundamental freedoms.”

The Court recalled that Article 2(4) of the Constitution provides that any law, which is inconsistent with the Constitution, is invalid to the extent of the inconsistency. The Court affirmed its jurisdiction to hear matters relating to constitutionality of laws pursuant to Article 165(3) of the Constitution.

The Court recognized that both criminal law and human rights law uphold the principle of legality which is that nothing is a crime unless it is clearly forbidden in law. This principle is reflected in Article 50(2)(n) of the Constitution, and also defined under Article 11 of the Universal Declaration of Human Rights (UDHR). In this sense, the Court explained that general rules of international law have been imported into the law of Kenya in accordance with Article 2(5) of the Constitution, which binds state and nonstate organs and persons through the operation of Article 10 of the Constitution.

The Court referred to various precedents to clarify the principle of legality and its applicability, including the Kenyan case of Keroche Industries Limited v. Kenya Revenue Authority & 5 Others (2007), and Kokkinakis v. Greece case (1992), where the European Court on Human Rights established: “…only the law can define a crime and prescribe a penalty… it follows from this that an offence must be clearly defined in law. This condition is satisfied where the individual can know from the wording of the relevant provision and, if need be, with the assistance of the courts’ interpretation of it, what acts and omissions will make him liable.”

In order to attain legal certainty, the rules should be ascertainable by access to public sources. In this sense, the Court stated that “the acceptance of the rule of law as a constitutional principle requires that a citizen, before committing himself to any course of action, should be able to know in advance what are the legal consequences that will flow from it.” (See Lord Diplock in BlackClawson International Ltd v. Papierwerke Waldhof-Aschaffenberg AG (1975))

Applying the principle of legality to Section 24 of the Act, the Court agreed with the Petitioner that the provision is vague, overbroad, and lacked certainty, especially with regard to the use of the term “sexual contact”, which the Court agreed could include mother to child transmission through pregnancy, delivery, and breastfeeding. The Court held that Section 24 of the Act failed to define the offence in law, meaning that it was not clearly discernible to citizens what acts and omissions will make them liable. The Court therefore held that Section 24 was unconstitutional.

On the other hand, the Court considered the obligation to disclose a PLWH’s seropositive status to “sexual contacts” and the lack of a duty to keep such disclosure confidential in light of the right to privacy recognized in Article 31 of the Constitution. The Court examined the conditions set out in Article 24 of the Constitution that need to be met to justify limitation of any fundamental right under the Constitution. The Court considered international human rights treaties and universally accepted principles of democracy, and precedents where courts with similar legal systems have applied such principles in determining what constitutes a reasonable and justifiable limitation of rights in an open and democratic society (See Ugandan decision of Obbo and Another v. Attorney General (2004)).

Consequently, the Court held that Section 24 of the Act violates the right to privacy protected under Article 31 of the Constitution, as it does not guarantee confidentiality of information disclosed by or on behalf of PLWH. Further, the Court explained that Section 24 of the Act did not satisfy the provisions of Section 24 of the Constitution which permits law to limit fundamental rights to the extent that such limitations are reasonable and justifiable in an open and democratic society based on human dignity, equality, and freedom.

Finally, the Court refrained from making any determination on the challenge to the Act as a whole, because the petition was specifically directed to Section 24 of the Act. However, it noted that there were problems with the drafting of the Act and recommended that the relevant authority review the provisions of the Act to avoid further litigation.