By Terry Ombati*

The Ministry of Health indicated that approximately 1.4 million Kenyans are living with HIV and AIDS by August 2023.^[1] In addition, about two in five women and men experienced stigma because of their HIV status in a community setting.^[2]The privacy of people who are living (or perceived to be living) with HIV and AIDS needs to be protected to prevent stigmatisation and discriminatory actions like denial of access to health.

In 2006, the HIV and AIDS Prevention and Control Act (the Act) was enacted. The Act acknowledged the various practices of injustice that result from an 'irrational, panicky and fear-driven' reaction. In a bid to adjudicate and provide suitable remedies in lawsuits concerning violations, the Act created the HIV and AIDS Tribunal (the Tribunal).^[3] The Act protects the privacy of people infected or at risk of HIV and AIDS. For instance, Section 21 assures any person to whom an HIV test relates to confidentiality of records.^[4] Section 22 (1) (a) of the Act prohibits the disclosure of any information concerning the results of an HIV test or any related assessment to any other person except with the written consent of that person.^[5] In enforcing these provisions, Section 23 penalisesbreach of confidentiality.^[6] Notably, the Tribunal is the first of its kind globally and is remarkably observing its duty to enforce the rights of people living with and affected by HIV in Kenya through expeditious judgments and resolute application of the law.

PMM v EA is an accurate example. The case involved the disclosure of the claimant's HIV status without consent. The claimant and respondent were members of a youth forum in Kakamega which had a WhatsApp group consisting of not less than 344 members. While in the same group, the respondent disclosed the claimant's health status.^[7] The respondent uttered these dismaying words to the claimant:

"Ukimwi yako inakaribia stage 4, the most lethal one, where your mental state is affected. Soon you will die. Kumeza ARV for 30 years si mchezo, you are remaining with at most 5 years fanya bidii ukuwe wakati nitakomboa mayoni. I'll improve our health facilities in that you'll be able to access free high tech treatment for AIDS delivered at your doorstep ndio uwache kuenda kumeza dawa kiambu penye watu hawakujui."^[8]

This extract represents the unfortunate predicament that a lot of people endure either through disclosure of their perceived or real status without consent to the public or through online media, discrimination in employment, compulsory testing, and even the lack of provision of social services.

The claimant, PMM, proceeded to institute a claim in the HIV and AIDS Tribunal seeking an order, among others, against the respondent restraining him from disclosing the claimant's status and a declaration that the respondent violated PMM's right under Sections 22 and 23 of the HIV and AIDS Prevention and Control Act. The respondent, on the other hand, did not respond to the claim by PMM and it was deemed admitted. This was after efforts by PMM to try to get the respondent to apologise for the remarks on the platform to no avail. The Tribunal, while making its judgment, cited with approval Section 22 (1) (a) of the Act that requires non-disclosure of any information regarding the results of an HIV test or any related assessment to any other person without the written consent of that person. In light of this provision, the Tribunal held that PMM had not disclosed his status to the respondent. As a result of the disclosure of his health status in the WhatsApp group by the respondent, PMM faced mockery, discrimination, and psychological torture and was even undergoing counseling.^[9] PMM was hence entitled to protection of his rights under sections 22 and 23 of the Act.

PMM v EA is one of the many cases that the Tribunal has handled concerning disclosure of someone's HIV status without written consent. The facts in PMM v EA are similar to GGOO v MOA, whereby the respondent made known the claimant's HIV status on a social media platform, Rarieda Political Forum, due to their contrasting views.^[10] The Tribunal held that the respondent violated Section 22 of the Act by unlawfully disclosing the claimant's status, real or perceived, to third parties without the Claimant's consent. It further highlighted that Section 22 protects against the unnecessary and unwarranted revelation of one's status, which is a private affair. HIV status is a private affair whose disclosure can and will cause mental distress and injury to a person, hence the need to keep this information confidential.^[11]

This holding is an import of Article 31 of the Constitution that guarantees every person with the right to privacy. The Tribunal in SNW v Asha Gulam stated that the right to privacy in relation to a person's HIV status protects the very core of the personal sphere of an individual and basically envisages the right to live one's own life with minimum interference and without the risk of stigmatization, discriminationand rejection by family, friends and the community.^[12]

The Tribunal has also taken steps in ensuring the right to privacy for instance holding proceedings in camera except where parties request for open court proceedings.^[13] Moreover, it is imperative to observe that the Preamble to the Constitution of Kenya 2010 commits all persons 'to nurturing and protecting the well-being of the individual, the family, communities and the nation'.^[14] This commitment is echoed in the object and purpose of the Act which includes 'extending to every person suspected or known to be infected with HIV and AIDS full protection of his or her human rights and civil liberties'.^[15]

In conclusion, the Tribunal's judgement in PMM v EA reinforces the need to respect the right to privacy by not disclosing someone's HIV status without their written consent. This goes a long way in fashioning and empowering a legal environment free from stigma and discrimination, where the rights of people living with HIV and AIDS are promoted and protected. Truly, as Bruce Schneier postulates, 'privacy is an inherent human right and a requirement for maintaining the human condition with dignity and respect.'^[16]

*The author is a student at Kabarak University School of Law 

[1] Ministry of Health, 'Kenyan strides against HIV: 7th Maisha Conference Highlights Progress' 30 August 2023 <https://www.health.go.ke/node/677> on 18 February 2024.

[2] Kenya National Bureau of Statistics, 'Kenya Demographic and Health Survey 2022: Volume 1' (2023), 421.

[3] United Nations Development Program Kenya (UNDP) and the Kenya Legal and Ethical Issues Network (KELIN), 'The HIV and AIDS Tribunal Compendium of Cases' (2016), 7.

[4] HIV and AIDS Prevention and Control Act, No. 14 of 2006, Section 21.

[5] HIV and AIDS Prevention and Control Act, No. 14 of 2006, Section 22 (1) (a).

[6] HIV and AIDS Prevention and Control Act, No. 14 of 2006, Section 22

[7] PMM v EA, Tribunal Case 047 of 2022, Judgement of the HIV and AIDS Tribunal, 29 June 2023, [eKLR], para 7.

[8] PMM v EA, Tribunal Case 047 of 2022, Judgement of the HIV and AIDS Tribunal, 29 June 2023, [eKLR] para 3.

[9] PMM v EA, Tribunal Case 047 of 2022, Judgement of the HIV and AIDS Tribunal, 29 June 2023, [eKLR].

[10] GGOO v MOA, Tribunal Case 027 of 2019, Judgement of the HIV and AIDS Tribunal, 07 May 2021, [eKLR], para 9.

[11] GGOO v MOA, Tribunal Case 027 of 2019, Judgement of the HIV and AIDS Tribunal, 07 May 2021, [eKLR], para 22.

[12] SNW v Asha Gulam, Tribunal Case 003 of 2018, Judgement of the HIV and AIDS Tribunal, 18 October 2019, [eKLR], para 16.

[13] HIV and AIDS Tribunal Rules, Legal Notice No 33 of 2022, Regulation 23(9).

[14] Constitution of Kenya (2010), Preamble.

[15] HIV and AIDS Prevention and Control Act, No 14 of 2006, Section 3.

[16] Bruce Schneier, 'The Value of Privacy', 19 May2006 < https://www.schneier.com/blog/archives/2006/05/the_value_of_pr.html> on 18 February 2024.