Kenya

Number of reported cases At least 8 How do we calculate the number of cases

Overview

Kenya has had a number of laws relating to HIV transmission, ‘exposure’, and non-disclosure, and there has been an ongoing tussle between the government and advocates working through the Courts to challenge those laws for more than a decade.

The HIV & AIDS Prevention and Control Act (2006), based on the highly problematic AWARE-HIV/AIDS Model Law (also known as the N’Djamena Model Law), was intended to provide for the protection and promotion of public health and for the appropriate treatment, counselling, support and care of persons infected with, or at risk of, HIV. Unfortunately, it included a section (24) criminalising people living with HIV. The overly broad provision stated that people living with HIV must take all reasonable measures and precautions to prevent HIV transmission and must disclose their HIV-positive status before sexual contact or sharing needles. The Act stated that a person living with HIV must not knowingly or recklessly place another person at risk of HIV, although it allows a defence if the other party consented to the risk. The provision carried a penalty of up to 500,000 shillings and/or up to seven years’ imprisonment.

The section was highly problematic per se but particularly problematic given its overly broad terms, notably, that a person must take all reasonable measures and precautions (rather than just reasonable measures) and must disclose before any sexual contact (despite HIV not being transmissible in many such instances). AIDS Law Project took the matter to the High Court, and in 2015 were rewarded with a judgement in Aids Law Project v Attorney General and Others [2015], in which the High Court of Kenya declared section 24 of the HIV and AIDS Prevention and Control Act unconstitutional. The High Court ruling focused on the absence of a definition of ‘sexual contact’, holding that it is impossible to determine what acts were prohibited. It also found the provision does not meet the standards for a justifiable limitation of the constitutional right to privacy. The law was suspended.

The current Sexual Offences Act, introduced in 2008, also includes sections on disease transmission which specifically name HIV ‘and other life threatening sexually transmitted disease(s)’. Section 26(1) makes it illegal for a person who knows they have HIV to intentionally, knowingly and wilfully do anything or permit anything to be done which they should reasonably know will or is likely to transmit HIV. The section, erroneously titled ‘deliberate transmission of HIV or any other life threatening sexually transmitted disease’, does not in fact require HIV transmission or for an accused to have an intention to transmit HIV, thereby criminalising ‘exposure’ as well as transmission, regardless of intent to transmit. The law states that it applies whether or not the parties were married. Further, the law states under section 26(10) that if a person tests positive for HIV at the time of their trial, they will be presumed to have been HIV-positive at the time of the offence, unless able to prove otherwise. This provision carries a severe penalty starting at 15 years’, and up to life imprisonment.

Section 26 of the Sexual Offences Act has been used in number of recent arrests and unjust prosecutions for biting (March 2018), spitting (October 2023), breastfeeding (September 2018, March 2019 and March 2020), and alleged non-disclosure (December 2018). In another case from 2016, it is unclear which law was applied, though this may have been a civil claim. Notably, two recent cases relate to women working as house-help being accused of feeding their employers child, despite major issues relating to evidence and risk of transmission. Similarly, a case in 2023 demonstrates how the law is being used in cases involving zero transmission risks; in this case, a woman working as house-help was arrested after being seen on CCTV footage allegedly spitting on her employers’ food. The woman was charged despite there being no possibility of HIV transmission through this means.

In December 2018, KELIN supported five people living with HIV to file a petition asking the High Court in Nairobi to strike down Section 26 of the Sexual Offences Act as unconstitutional as it discriminates against people living with HIV, women, and poor people, and violates a number of fundamental human rights. KELIN’s press release argued that the section had effectively made it a crime for women with HIV “to birth and raise children. The prevailing interpretation also effectively criminalises marriage between a person who has HIV and a person who does not.” In January 2020, the court admitted HIV Justice Worldwide and UNAIDS as ‘friends of the court’, allowing them to present evidence. The Court also joined the National AIDS Control Council. In July 2020, the Court gave the Attorney General and the Director of Public Prosecutions 30 days to file their responses, with the Petition to be heard on 4 January 2021. In December 2022, the High Court dismissed the case on the basis that the petitioners had not reached the threshold to have the section declared unconstitutional, and that section 26 did not refer to all people living with HIV, only those who deliberately and knowingly transmit HIV. Announcing their intention to appeal, the petitioners also expressed their view that the Court acknowledged that the law should only be applied where three elements are present:

    • First, the perpetrator must act intentionally and with a specific intention to infect another person;
    • Second, the perpetrator must have actual knowledge of their HIV status; and
    • Third, the prosecution must prove that the perpetrator actually infected the other person with HIV.

Civil society meanwhile continues to advocate for repeal of section 26. In a statement issued in March 2023, a network of eight Kenyan civil society organisations, including HIV organisations, reiterated the case against the provision, arguing that criminalisation fails to prevent HIV transmission. Furthermore, the network stated that the law in Kenya disproportionately targets women as they are usually first to discover their HIV positivity when receiving care during pregnancy, leaving them vulnerable to prosecution by the state which assumes that they were the source of HIV in the relationship and put their partner at ‘risk of transmission’. Additionally, the law fails to account for transmission risk, and several women have been prosecuted for breastfeeding, despite international guidance establishing that breastfeeding is safe for people on effective treatment.

The Sexual Offences Act also includes a provision (section 43) which outlines that acts are considered intentional and unlawful where committed under false pretences or by fraudulent means, which explicitly includes intentionally failing to disclose that the person is living with HIV or another ‘life-threatening sexually transmissible disease’. This section can be applied in cases of sexual assault, including rape, essentially requiring disclosure of HIV status prior to (penetrative) sex. The law does not require transmission or provide a defence in relation to risk of transmission including use of a condom or having a low viral load, or consent of another party.

Kenya’s Penal Code also contains a provision that could be used for HIV criminalisation, making it a criminal offence for a person to unlawfully or negligently undertake any act which s/he knows or has reason to believe is likely to spread a disease dangerous to life (section 186). We are not aware of any prosecutions using this provision.

Laws

The Sexual Offences Act No.3 of 2006

HIV-specific criminal law (active)
Year enacted
2006
Relevant text of the law

Section 26. Deliberate transmission of HIV or any other life threatening sexually transmitted disease

(1) Any person who, having actual knowledge that he or she is infected with HIV or any other life threatening sexually transmitted disease intentionally, knowingly and willfully does anything or permits the doing of anything which he or she knows or ought to reasonably know –

(a) will infect another person with HIV or any other life threatening sexually transmitted disease;

(b) is likely to lead to another person being infected with HIV or any other life threatening sexually transmitted disease;

(c) will infect another person with any other sexually transmitted disease,

shall be guilty of an offence, whether or not he or she is married to that other person, and shall be liable upon conviction to imprisonment for a term of not less than fifteen years but which may be for life.

(…)

(9) Where a person is convicted of any offence under this Act and it is proved that at the time of the commission of the offence, the convicted person was infected with HIV or any other life threatening sexually transmitted disease whether or not he or she was aware of his or her infection, notwithstanding any other sentence in this Act, he or she shall be liable upon conviction to imprisonment for a term of not less than fifteen years but which may be enhanced to imprisonment for life.

(10) For purposes of this section – (a) the presence in a person’s body of HIV antibodies or antigens, detected through an appropriate test or series of tests, shall be prima facie proof that the person concerned is infected with HIV; and  (b) if it is proved that a person was infected with HIV after committing an offence referred to in this Act, it shall be presumed, unless the contrary is shown, that he or she was infected with HIV when the offence was committed.

Section 43. Intentional and unlawful acts

(…)

(3) False pretences or fraudulent means, referred to in subsection (1)(b), include circumstances where a person:

(…)

(c) intentionally fails to disclose to the person in respect of whom an act is being committed, that he or she is infected by HIV or any other life-threatening sexually transmissible disease.

Penal Code

Communicable disease law (active)
Relevant text of the law

Section 186. Spreading infection

Any person who unlawfully or negligently does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, is guilty of a misdemeanour.

HIV and AIDS Prevention and Control Act No.14 of 2006 [revised 2012]

HIV-specific criminal law (suspended)
Relevant text of the law

[SUSPENDED FOLLOWING 2015 HIGH COURT DECISION]

Section 24. Prevention of transmission

(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—

(a) take all reasonable measures and precautions to prevent the transmission of HIV to others; and

(b) inform, in advance, any sexual contact or person with whom needles are shared of that fact.

(2) 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.

(3) A person who contravenes the provisions of subsection (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.

(4) 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.

(5) A request under subsection (4) shall be in the prescribed form.

(6) On receipt of a request made under subsection (4), the medical practitioner or approved person shall, whenever possible, comply with that request in person.

(7) 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—

(a) complied with subsection (1) or (2); or

(b) made a request under subsection (4), may inform any sexual contact of that person of the HIV status of that person.

(8) 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.

Further resources

Analyses punitive laws and policies undermining the effective delivery of services to PLHIV and those at risk of HIV infection. Flags laws and policies that violate Constitutional rights. Sets out an advocacy agenda for policy and legislative reform and improvement of law enforcement practices and community understanding of criminalisation issues.

Overview of the Kenya High Court’s ground-breaking decision that some terms in the HIV and AIDS Prevention and Control Act were too broadly defined and that Act contravened Kenya’s constitution.

Outlines the AIDS Law Project’s suit (Petition No. 97 of 2010) against the Attorney General and Director of Public Prosecutions regarding the constitutionality of section 24 of HIV and AIDS Prevention and Control Act. The court found that some terms were too broadly defined and that Act contravened Kenya’s constitution.

Acknowledgements

Our thanks to UNAIDS and to Australian law firm Hall & Wilcox for their research assistance to confirm current relevant legislation.

This information was last reviewed in November 2023