Kenya: Criminal provisions of HIV/AIDS law held unconstitutional

Many thanks to Godfrey Kangaude, LL.M. (UFS), LL.M. (UCLA), Executive Director of the Malawi Law Society and Co-Director of Nyale Institute for Sexual and Reproductive Health Governance, for writing a new African case summary for the forthcoming publication, Legal Grounds III: Reproductive and Sexual Rights in Sub-Saharan African Courts:

AIDS Law Project v Attorney General and 3 Others [2015] eKLR, Petition No. 97 of 2010 (High Court of Kenya at Nairobi). Decision online.  Case Summary.

COURT HOLDING

Section 24 of the HIV and AIDS Prevention and Control Act, No. 14 of 2006 contains language such as “sexual contact” that is not clearly defined, which makes it impossible to state with certainty and precision how persons targeted by the section are expected to conduct themselves and in respect of whom. The provision as drafted is so overbroad that it could even be interpreted to apply to women who expose or transmit HIV to children during pregnancy, delivery, or breastfeeding. Section 24 of the Act therefore does not satisfy the principle of legality, which requires that an offence be clearly defined in law so that it is clear to anyone what acts or omissions make him or her liable.

Section 24 of the Act also requires that those who have HIV disclose their status to their “sexual contacts” but it does not create any duty for the “sexual contacts” to keep the information confidential. Section 24 of the Act therefore contravenes the constitutional right to privacy stipulated in Article 31 of the Constitution of Kenya, 2010.
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Full Summary by Godfrey Kangaude  is online here.

Legal Grounds: Reproductive and Sexual Rights in African Commonwealth Courts   (2000 to 2008) Volumes I and II can be downloaded here.Our update will be published early in 2017. Decisions already identified for inclusion in  are online here.  New case summaries are attached every month.   If you can suggest other cases, please do!   How You Can Help.

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