Kenya has had a number of laws relating to transmission of HIV, with an ongoing tussle between 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 states 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 7 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 , 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 includes sections on disease transmission which specifically name HIV “and other life threatening sexually transmitted disease”, making 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 is likely to transmit HIV (s26(1)). The section, erroneously titled ‘Deliberate transmission of HIV or any other life threatening sexually transmitted disease’ does not require HIV transmission or for an accused to have an intention to transmit HIV: only that they undertake an act they ‘should reasonably know’ is ‘likely’ to transmit HIV. The law applies whether or not the parties were married.
Section 26 of the Sexual Offences Act (2006) has been used in number of recent arrests and unjust prosecutions for biting (March 2018), 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. Notably, the two most recent cases relate to women working as house-help accused of feeding their employers child, despite major issues relating to evidence and risk of transmission.
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 criminalizes marriage between a person who has HIV and a person who does not.” In January 2020, the court admitted HIV Justice Worldwide and UNAIDS, allowing them to present evidence acting as ‘friends of the court’. The Court also joined the National AIDS Control Council. The next mention of the case is scheduled for 31 March 2020.
The Sexual Offences Act also states that a person commits an act of rape if penetrative sex occurs under false pretences or by fraudulent means, which includes “intentionally failing to disclose HIV” (or other life-threatening STI) (s2 & 43). 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. Notably, a person living with HIV is deemed to have committed a sexual offence, whether or not they were aware of their HIV-positive status. Further, the law states 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 (s10). The penalty ranges from 15 years to life imprisonment.
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 (s186).
The Sexual Offences Act No.3 of 2006
- 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.
- 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.
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]
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.
Our thanks to UNAIDS and to Australian law firm Hall & Wilcox for their research assistance to confirm current relevant legislation.