Kenya: High Court dismisses petition challenging the constitutionality of HIV criminalisation

Disappointment as High Court Dismisses Case Challenging Criminalisation of HIV transmission

Nairobi, 20th December 2022. The High Court has dealt a blow to the fight against the HIV response, by dismissing a petition that challenged the criminalisation of all forms of deliberate transmission of HIV. Hon. Lady Justice Hedwig Ong’udi dismissed the petition on the grounds, the petitioners had not met the threshold to have the section declared unconstitutional. Further she noted that Section 26 of the Sexual Offences Act(SOA), does not refer to all people living with HIV, but rather those who deliberately and knowingly transmit HIV.

Had the court upheld the petition Kenya who have been removed from the list of the 30 sub-Saharan nations  and the 92 countries globally, who have enacted and enforced laws that criminalise HIV exposure and infection.

The petition filed by KELIN, and 6 other petitioners, who included people living with HIV, challenged the constitutionality of Section 26 of the SOA. This law criminalizes the deliberate transmission of HIV and other sexually transmitted diseases. The Petitioners had based their petition on the factual and lived experiences of each of the first six petitioners, all of whom have been adversely affected by the discriminatory application of this section yet had not been engaged in any sexual offences.

The Attorney General together with the National AIDS Control Council had opposed the petition arguing the section was constitutional as it was necessary to curb deliberate transmission due to the continued presence of HIV in Africa. It further argued that the rights of persons living or affected by HIV are not absolute, and that these must be weighed and interpreted with limitations provided under the Constitution.

As at the time of publishing this news alert, the court judgment had yet to be released to the parties. We look forward to receiving the court decision to better understand the court’s reasoning as well as determine a way forward.   A further statement will be issued in due course.

Links to pleadings



Supplementary submissions

AG submissions