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:

  1. A person who is and is aware of being infected with HIV or is carrying and is aware of carrying the HIV virus shall:
  2. take all reasonable measures and precautions to prevent the transmission of HIV to others; and
  3. inform, in advance, any sexual contact or person with whom needles are shared of that fact.
  4. 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.
  5. 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.
  6. 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.
  7. A request under subsection 4 shall be in the prescribed form.
  8. On receipt of a request made under subsection 4, the medical practitioner or approved person shall, whenever possible, comply with that request in person.
  9. 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:
  10. complied with subsection 1 or 2;
  11. Or made a request under subsection 4, may inform any sexual contact of that person of the HIV status of that person.
  12. 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.”