The Hiv And Aids Prevention And Control Bill, 2006. Kenya

THE HIV AND AIDS PREVENTION AND CONTROLL BILL, 2006. KENYA PAPER FOR DISCUSSION ON 25TH OCTOBER 2006 In discussing the subject on The HIV and AIDS Prevention and Control Bill, 2006 and its legal implications, it is important to appreciate that inasmuch as we may make legislation, to add to the existing volumes of various enactments in our country, hold conferences and make deliberations based on statistical data available from the Government or other organizations, the implementation thereof shall only be achieved when all of us are ready to conscientiously embrace the principle of BEHAVIOUR CHANGE, without which all these legislations will remain paper legislations. While preparing the points of discussion in this paper, reference has been made to the laws of the country, case law (decided cases) – both reported and unreported – to explain and elaborate the various relevant provisions. It is not an authority on legal issues but my general comments and observations on what is happening around. They do not represent the views of the Law Society of Kenya either. Should the Bill be passed and become law, then, amendments may have to be made to reflect the reality on the ground. So much information, records and data shall have to be borrowed from those entrusted with the day-to-day care of people affected and infected with the HIV and Aids virus. This may be done through seminars where each section, part or provision would or may be discussed at length and reasonable recommendations made. DISCRIMINATION OR STIGMATIZATION? A. The Law on Discrimination and HIV: Section 82 of the Constitution provides for protection from discrimination. It is a fundamental right. 1.

CONSTITUTIONAL PROTECTION FROM DISCRIMINATORY LAWS: 1

The Constitution prohibits the making of any law, which shall make any provision that is discriminatory either of itself or in its effect. This rule has the following three qualifications or exceptions. It is provided that a law may be discriminatory so far as that law makes provision:a)

with respect to persons who are not citizens of Kenya;

b)

with respect to adoption, marriage, divorce, burial, devolution of property on death or other matters of personal law;

c)

for the application in the case of members of a particular race or tribe of customary law with respect to any matter to the exclusion of any law with respect to that matter which is applicable in the case of other persons; or

d)

whereby persons may be subjected to a disability or restriction or may be accorded a privilege or advantage which having regard to its nature or to special circumstances pertaining to those persons is reasonably justifiable in a democratic society.

ii)

It is also provided that nothing contained in any law shall be held to be inconsistent with or in contravention of protection from discrimination on by law in question makes provision with respect to standards or qualifications specifically relating to race, tribe, place of origin or residence or other local connection, political opinion colour or creed) to be required of a person who is appointed to an office in the public service, in a disciplined force, in the service of a local government authority or in a body corporate established by any law for public purposes.

2.

CONSTITUTIONAL PROTECTION DISCRIMINATORY TREATMENT

FROM

The Constitution provides that no person shall be treated in a discriminatory manner by a person acting by virtue of any written law or in the performance of the functions of a public office or a public authority. ‘Discriminatory’ in the context of the constitutional safeguard under Section 82 of the Constitution means;-

2

‘affording different treatment to different persons attributable wholly or mainly to their respective descriptions by race, tribe, place of origin or residence or other local connection, political opinions, colour, creed or sex whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject or are accorded privileges or advantages which are not accorded to persons of another such description’.

To warrant protection from discrimination it must be proven that:-

3.

a)

treatment in a discriminatory manner was done by a person acting by virtue of any written law or in the performance of the functions of a public office or a public authority; and

b)

different treatment was afforded to different persons and was attributable wholly or mainly to their respective descriptions by race, tribe, place of origin, or residence or other local connection, political opinion, colour, creed or sex.

INADEQUACY OF CONSTITUTIONAL PROTECTION FROM DISCRIMINATION

Would different treatment of a HIV person by a person not acting by virtue of any written law or in the performance of the functions of a public office or a public authority on grounds of their medical condition entitle such person to protection from discrimination under Section 82 of the Constitution? The High Court (Mugo Ag. J) in J. A. O.- v - Homepark Caterers Ltd & 2 others Nairobi - High Court Civil Case No. 38 of 2003 (unreported) in dealing with an application wherein discrimination on grounds of HIV status was in question observed that:‘treatment of HIV/AIDS patients by doctors, hospitals, employers and others has been put under legal scrutiny ( in other jurisdictions) with a view to moulding attitudes and public policy such that the same would be free of discriminatory tendencies’. 3

In the Homepark Caterers Ltd case, the Plaintiff’s termination from employment was grounded on the medical report, which the Plaintiff claimed to have been done without her consent and the disclosure (again without her consent) of her HIV status. The thrust of the employer’s defence was that the real reason for the termination was prolonged absenteeism on medical grounds. In an interlocutory ruling on an application to strike out the Plaintiff’s suit for being scandalous, frivolous, vexatious and an abuse of the Court process, it was held inter-alia that:a.

if indeed the dismissal from employment can be said to have been as a result of the Plaintiff being H.I.V positive then by inference such treatment could, if proven, amount to inhuman treatment contrary to Section 74 of the Constitution.

b.

different treatment on medical grounds is not envisaged under Section 82 of the Constitution since the acts in question were not committed by the Defendants whilst acting by virtue of any written law or in the performance of the functions of a public office or a public authority.

4.

Protection from discrimination under the HIV and AIDS Prevention and Control Bill 2006; curing the constitutional deficiency;

Sections 3 (b) (iii) of the HIV and AIDS Prevention and Control Bill, 2006 proposes to enact as amongst the objects and purpose of the Act, that the Act shall extend to every person suspected or known to be infected with HIV and AIDS, full protection of his human rights and civil liberties by outlawing discrimination in all its forms and subtleties against persons with or persons perceived or suspected of having HIV and AIDS. Part VIII of the 2006 Bill provides for protection from discriminatory Acts and Policies and provides for protection from:(i). Discrimination in the work place. Section 31 (1) provides that no person shall be :a. Denied access to any employment for which he is qualified; or

4

b. Transferred, denied promotion or have his employment terminated on the grounds only of his actual perceived or suspected HIV status. Section 31 (2) provides that protection from discrimination at the work place shall not be guaranteed in any case where an employer can prove on application of the Equity Tribunal that the requirements of the employment in question are that a person be in a particular state of health or medical or clinical condition. Every employer would definitely go this way and take this defence. (ii)

Discrimination in Schools: Section 32 provided that no educational institution shall deny admission or expel, discipline, segregate, deny participation in any event or activity or deny any benefits or services to a person on the grounds only of the person’s actual, perceived or suspected HIV status. (2005 – Nyumbani case, judgment by Justice Martha Koome following the introduction of the free primary education at the beginning of last year. The learned Judge ruled in favour of Nyumbani but then the question is whether or not denial of admission would amount to Contempt of Court. (iii)

Restriction on travel and habitation. Section 33 (1) provides that a person’s freedom of abode, lodging or travel within or outside Kenya, shall not be denied or restricted on the grounds only of the person’s actual, perceived or suspected HIV status.

It is common knowledge that whenever one seeks to obtain a visa to any country, the person’s health status shall be the first thing to be taken into account. For instance relocation to the US via Green Card requires that every person be screened for HIV and AIDS first before a Visa is granted to the person. In a recent case aired on one FM radio stations – Kiss 100, a lady called the station asking for the president’s intervention. Her husband got a green card to the US and on going for medical examination, tested HIV negative but the wife tested HIV positive. Her husband got a visa and left and is now in the US. The wife is still in Kenya one year later and has to depend on her husband to grant a waiver for her to join him. How would you judge this case, not independently but read with the family in mind. Does it promote the values of a family or division?

5

What does it portend to the future of the family and the core values for which it exists vis a vis this Bill? Section 33 (2) provides that no person shall be quarantined, placed in isolation, refused lawful entry or deported from Kenya on the grounds only of the person’s actual perceived or suspected HIV status. (iv)

Inhibition from Public Service. Section 34 provides that no person shall be denied the right to seek an elective or other public office on the grounds only of the person’s actual, perceived or suspected HIV status.

(v)

Exclusion from credit and insurance services. Section 35 (1) provides that no person shall be compelled to undergo a HIV test or to disclose his HIV status for the purpose only of gaining access to any credit or loan services, medical, accident or life insurance or the extension or continuation of any such services. However it is provided in Section 35 (2) that an insurer, reinsurer or health maintenance organization shall in the case of life and healthcare service insurance cover, devise a reasonable cover for which a proposer shall not be required to disclose his or her HIV status.

Section 35 (3) provides that where a proposer seeks a cover exceeding the no test limit the insurer, re-insurer or health maintenance organization may require the proposer to undergo an HIV test. Section 35 (4) provides that where a proposer elects to undergo an HIV test and the results thereof are positive, the insurer or re-insurer may impose a reasonable additional sum to the premium ordinarily levied for the cover sought. (What if the additional sum is not affordable by the proposer? The Bill is silent on this. Section 35 (5) provides that a person aggrieved by a determination as to what is reasonable additional premium may (optional) appeal to the commissioner of insurance on the basis of statistical and actuarial principles and other relevant considerations. What are these “relevant” considerations and who would take this option any way?

6

Sections 36 (6) provides that a person aggrieved by a determination of the Commissioner of Insurance may appeal within thirty days to the Equity Tribunal and the decision of the Tribunal shall be final. (vi). Discrimination in Health institutions. Sections 36 provides that no person shall be denied access to healthcare services in any health institution or be charged a higher fee for any such services on the grounds only of the person’s actual, perceived or suspected HIV status. (vii). Denial of burial services. Section 37 provides that a deceased person who has had AIDS or was known, suspected or perceived to be HIV positive shall not be denied access to any burial services on the grounds only of their said status. A penalty for discriminatory acts and practices is provided for under Section 38, which states that a person who contravenes any of the provisions of Part VIII to wit Sections 31 to 37 inclusive, commits an offence. B.

HIV TRANSMISSION AS A SEXUAL OFFENCE OR AN INGREDIENT THEREOF.

Until the enactment of sexual offences Act No. 3 of 2006 deliberate transmission of HIV or any other life threatening sexually transmitted disease was not an offence under Chapter XV of the Penal code Chapter 63 of the Laws of Kenya dealing with Offences Against Morality. 1. Judicial protection from deliberate transmission of HIV. Prior to the enactment of the Sexual Offences Act No. 3 of 2006 the Judicial attitude towards deliberate transmission of HIV is best captured in PHILLIP KIPKOECH CHEPKWONY V REPUBLIC NAKURU HCCA NO. 128 OF 2004 (unreported) where the Appellant was charged with defilement of a girl contrary to Section 145 (1) of the Penal Code as amended by legal notice No.25 of 2003. The Appellant was alternatively charged with indecently assaulting the complainant contrary to Section 144 (1) of the Penal Code. The Appellant pleaded not guilty to the charges and after a full trial was convicted of the main charge of rape. He was sentenced to serve a life imprisonment. He was aggrieved by his conviction and sentence and appealed to the High Court. 7

At the hearing of the appeal, the Appellant took issue with the allegation by the prosecution that he had been tested and found to be H.I.V positive and therefore infected the complainant with the AIDS virus. He submitted that no evidence was adduced by the prosecution to establish that indeed he had infected the complainant with AIDS virus and reiterated that the complainant was his girlfriend and stated further that the trial magistrate had failed to consider his evidence on the said effect. The Court after reconsidering and re-evaluating the evidence adduced before the trial magistrate’s court upheld the conviction firmly holding that:‘evidence was adduced that the appellant was tested and found to be HIV positive. The appellant defiled the complainant in the full knowledge that there was a possibility that he could infect her with the said AIDS virus. Although the prosecution did not establish that the appellant had indeed infected the complainant with the AIDS virus, this court cannot ignore the fact that the appellant was armed with a lethal weapon which weapon he used to potentially inflict a fatal injury on an innocent girl child. The appellant is a danger to the children in the Society and should therefore be put away so that he may not pose any more threat to the innocent children of his nation. This court is aware that sometimes justice has to be tempered with mercy. In this case, this court does not see how it can exercise mercy on the appellant who deliberately and without due regard to an innocent girl, sexually assaulted here and potentially infected here with the AIDS virus. The complainant did nothing to deserve the treatment that was meted to her by the appellant. The appellant did not show mercy to the complainant. The dreams of the complainant of having a bright future and maybe having a family was shattered by the singularly beastly and brutal act of the appellant. The appellant wants this court to ignore all these facts and exercise mercy on him. I think it would be travesty of justice if this court were to release the appellant to the society so that he could prey on other innocent and vulnerable young girls. I will not grant him his wish (sic). He should remain where he is 8

for the rest of his life. The appellant should not be given another opportunity to cause misery to innocent young girls. I decline to review the life imprisonment imposed by the trial magistrate. His appeal on sentence is therefore dismissed. He shall serve the sentence imposed by the trial magistrate’ 2.

Parliamentary (statutory) transmission of HIV.

protection

from

deliberate

2.1

Substantive protection from deliberate transmission of HIV. Parliament by way of The Sexual Offences Act No. 3 of 2006 has further boosted protection from deliberate transmission of HIV or indeed any other life threatening Sexually Transmitted disease by enacting in Section 26 that; -

Under Section 26 (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 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 to a term of not less than 15 years but which may be for life. Section 26A Where a person is convicted of any offence under the sexual offence Act no.3 of 2006 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, not withstanding any other sentence in The Sexual Offences Act No. 3 of 2006 he or she shall be liable upon conviction to imprisonment for a term of not less than 15 years but which may be enhanced to imprisonment for life.

9

Presumptions of fact underpinning protection from deliberate transmission of HIV or any other life threatening sexually transmitted disease. Section 26 of the Sexual Offences Act introduces two presumptions to underpin protection from deliberate transmission of HIV or any other life threatening sexually transmitted disease. 1. Section 26 (10) (a) introduces on irrebuttable presumption of fact that 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. 2. Section 26 (10) (b) introduces a rebuttable presumption of fact that if it is proved that a person was infected with HIV after committing an offence, referred to in the sexual offences Act, it shall be presumed unless the contrary is shown, that he or she was infected with HIV when the offence was committed. 2.2

Enabling safeguards to achieve effective protection from deliberate transmission of HIV

Other notable important safeguards relate to collection of evidentiary samples from the accused thereby overcoming the potential difficulty of withholding consent to take medical samples. It is provided that:(i)

Not withstanding the provisions of any other written law, where a person is charged with the office of deliberate transmission of HIV or any other life threatening Sexually transmitted disease, the court may direct that an appropriate sample or samples be taken from the accused at such place not object to such conditions as the court may direct for the purpose of ascertaining whether or not he or she is infected with HIV or any other life threatening sexually transmitted disease.

(ii)

the sample or samples taken from the accused person shall be stored at an appropriate place until finalization of the trial.

(iii)

the court shall where the accused person is convicted order that the sample or samples be tested for HIV or any other life threatening sexually transmitted disease and where the accused 10

person is acquitted order that the sample or samples be destroyed. (iv)

where a court has given directions that sample or samples be tested for HIV or any other life threatening sexually transmitted disease, any medical practitioner is designated person shall if so requested in writing by a police officer above the rank of a constable, take an appropriate sample or samples from the accused person concerned.

(v)

An appropriate sample v samples taken:-

a.

Shall consist of blood, urine or other tissue or substances as may be determined by the medical practitioner or designated person concerned in such quantity as is reasonably necessary for the purpose of determining whether or not the accused person is infected with HIV, or any other life threatening sexually transmitted disease and

b.

In case of blood or tissue sample, shall be taken from a part of the accused persons body selected by the medical practitioner or designated person concerned in accordance with accepted medical practice.

(vi)

any person who without reasonable excuse, hinder or obstructs the taking of an offence of obstructing the cause of justice and shall on conviction be liable to imprisonment for a term of not less than five years or to a fine of not less than fifty thousand shillings of to both.

(vii) Without prejudice to any other defence or limitation that may be available under any law, no claim shall lie and no set-off shall operate against a. the state; b. any minister; or c. any medical practitioner or designated persons, in respect of any detention, injury or loss caused by or in connection with the taking of an appropriate sample, unless the taking was unreasonable or done in bad faith or the person who took the sample was culpably ignorant and negligent. 11

2.4

The HIV and AIDS Prevention and Control Bill, 2006 and transmission of HIV; Supplementing The Sexual Offences Act No. 3 of 2006.

Part VI of the HIV and AIDS Prevention and Control Bill 2006 provides for prevention of transmission of HIV thereby supplementing the provisions of section 26 of the Sexual Offences Act. Sections 24 (1) provides that 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 of any sexual contact or person with whom needles are shared of that fact. Section 24 (2) provides that a person who is aware of being infected with HIV or who is carrying and is aware of carrying HIV antibodies shall not knowingly or recklessly place another person at risk of becoming infected with HIV unless that other person knew of that fact and voluntarily accepted the risk of being infected. Sections 23 (3) provides that a person who contravenes the provisions of Section 24(1) or 24 (2) commits an offence and shall be liable upon conviction to a fine not exceeding Five thousand shillings or to imprisonment for a term not exceeding seven years or to both such fine and imprisonment. Sections 24 (4) provides that a person who is and is aware of being infected with HIV or is carrying and is ware of carrying the HIV virus may request any medical practitioner or any other approved person to inform and counsel a sexual contact of the HIV status of that person. Section 24 (7) provides that 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:-

12

(i)

taken all reasonable measures and precautions to prevent transmission of HIV to others

(ii)

informed in advance any sexual contact or person with whom needles are shared of the fact that he is infected with HIV or is carrying and is aware of carrying the HIV virus;

(iii)

being aware of being infected with HIV or is carrying and being aware of carrying the HIV virus requested any medical practitioner or any approved person to inform and counsel a sexual contact of his HIV status.

may inform any sexual contact of that person of the HIV status of that person. C.

HIV, DEFAMATION AND CONFIDENTIALITY 3.1

HIV and the Law of Defamation.

The law recognizes in every person a right to have the estimation in which they stand in the opinion of others unaffected by false statements to their discredit. The law of defamation therefore protects every person’s general reputation in fact and not the reputation he deserves. It protects these interests from imputations to a person’s discredit or those, which tend to lower them in the estimation of others or to expose them to hatred, contempt or ridicule, or to injure their reputation in their office, trade or profession or to injure their financial credit. At Common Law any imputation of conduct considered by right thinking persons to be immoral is necessarily defamatory. Clerk & Lindsell on Torts 16th Edition 1989 at paragraphs 21 to 23 on page 1096 says that.…..“but what of an imputation that a person is HIV positive? The general perception by the public that AIDS is an exclusively venereal disease linked to promiscuity and the risks of exclusion from society of HIV positive persons are such that an imputation that a person is a carrier of or suffering from the disease would seem to make such an imputation properly actionable per se.” Imputation that a person was of loose sexual morals as a result of which that person had contracted HIV /AIDS was the subject of 13

litigation in Lucy Ndegi v James Kibe, Nairobi HCCC No. 860 of 2003). In the Ndegi case the Plaintiff proved that the Defendant had denounced her as a prostitute which she understood to mean that she was of loose sexual morals and then the Plaintiff told her that she had slimmed from her originally larger bodily appearance, she understood it to mean that she was a victim of HIV/AIDS infection which had cause her to slim down. The Plaintiff proved that she had to close down her sales business, as potential customers would say they do not want to buy goods and supplies from an AIDS patient. She further testified that since she incurred major business losses in the aftermath of the slander by the Defendant she has not been able to bond very well with her husband in the domestic arena. The Court took the position this Ndegi case was one in which undue harm had been caused to a peace loving citizen in character and with serious implications for her normal and economic life. The harm had been caused through flagrant defamation mindlessly or even recklessly perpetuated. The Court awarded the Plaintiff Kshs.65,000.00 general damages and in awarding her a social loss of Kshs.20,000.00 and exemplary damages of Kshs.5,000.00. “……during that whole period she has lived as a rather shamefaced person in her community following the depreciatory, slanderous declamations of her in full public view. I also award exemplary damages to discourage the Defendant and others from such reckless, abusive and defamatory assault on an innocent lady living her life in peace.” 3.2

HIV AND CONFIDENTIALITY: How The HIV and AIDS Prevention and Control Bill 2006 Balances The Right To Protection of a Person’s Reputation Against The Obligation To Prevent Transmission of HIV to Innocent People By Disclosure of a Person’s HIV Status.

Part V of the HIV and AIDS Prevention and Control Bill, 2006 deals with confidentiality between a healthcare provider and patient but takes note of the grave situations posed by the danger of transmitting HIV and AIDS to innocent people. It embodies the circumstances 14

under which the result of an HIV test or any related assessments may be disclosed to a third party without incurring any legal liability. Section 20 (1) provides that the Minister responsible for matters relating to health shall prescribe privacy guidelines including the use of an identifying code relating to the recording, collecting, storing and security of information records or forms used in respect of HIV tests and related medical assessments. Section 20 (2) provides that no person shall record, collect transmit or store records information or forms in respect of HIV tests or related medical assessments of another person otherwise than in accordance with the privacy guidelines. Section 21 safeguards confidentiality by prohibiting the inclusion of any information, which directly or indirectly identifies the person to whom an HIV test relates in the following documents and records:a) a request for an HIV test in respect of themselves; b) an instruction by a Medical Practitioner to a laboratory for an HIV test to be conducted; c) the laboratory testing for HIV or HIV antibodies; d) the notification to the Medical Practitioner of the result of the HIV test. Section 22 prohibits the disclosure of any information concerning the result of an HIV test or any related assessment to any other person except; a) with the written consent of that person ; b) if that person has died, with the written consent of that person’s partner, personal representative, administrator or executor. c) If that person is a child, with the written consent of a parent or legal guardian of that child. d) If that person is unable to give written consent, with the oral consent of that person or with the written consent of the person with a Power of Attorney for that person.

15

e) If in the opinion of the Medical Practitioner, who undertook the HIV test, that person has a disability by reason of which the person appears incapable of giving consent with the written consent, (in order of: (i) a legal guardian of that person, (ii) a partner of that person, (iii) a parent of that person, or (iv) an adult offspring of that person. Section 22 prohibits disclosure of information concerning the results of an HIV test or any related assessments except: (a) to a person approved by the Minister responsible for matters related to health who is DIRECTLY involved in the treatment or counseling of that person; (b)for the purpose of an epidemiological study or research authorized by the Minister; (c)to a Court where the information contained in medical records is directly relevant to the proceedings before the Court, Equity Tribunal established under the intended Act. (d)To the Registrar of Births and Deaths, (pursuant to Sections 18 of the Births and Deaths Registration Act (Cap 149) Laws of Kenya if the person to whom the information relates dies. (e)If authorized or required to do so under the intended Act or under any other written law. Under Section 23, Breach of Confidentiality is an offence punishable under Section 42 by imprisonment for a term not exceeding 2 years or to a fine not exceeding Kshs.100,000.00 or both. 4.

HIV and DIVORCE

Under the Matrimonial Causes Act Cap 152 and the Subordinate Courts (Separation and Maintenance) Act Cap 153 of the Laws of Kenya, a woman or an Applicant may apply by either petition or otherwise to the Court for an Order or Orders or Divorce under these Acts on the ground that;(a)

The Respondent has since the celebration of the marriage committed adultery (ADULTERY) or

16

(b)

Has deserted the petitioner without cause for a period of at least 3 years immediately preceding the presentation of the petition (DESERTION) or

(c)

Has since the celebration of the marriage treated the petitioner with cruelty (CRUELTY) or

(d)

Is incurably of unsound mind and has been continuously under care and treatment for a period of at least 5 years immediately preceding the presentation of the petition. (INSANITY)

The wife may present a petition on the ground that her husband has, since the celebration of the marriage, been guilty of rape, sodomy or bestiality. (UNNATURAL OFFENCES E.G., HOMOSEXUALITY) In addition, a petition may be presented in Court by either party on grounds of non-consummation in which case the applicant shall be seeking orders from the Court for the nullification of the marriage. Under Cap 153, a woman may apply to the Court for Orders on the Grounds:(i)

that her husband has compelled her to submit herself to prostitution.

(ii)

that her husband is a habitual drunkard or a habitual drug taker.

(iii)

that besides being guilty of persistent cruelty to her or her children, he has willfully neglected to provide reasonable maintenance for her or her children whom he is legally liable to maintain.

In RETMAIR –V- RETMAIR High Court Divorce Cause No. 22 of 2001, the wife petitioned the Court for Divorce on grounds of adultery of the Respondent that was indirectly a ground on HIV/AIDS. The Petitioner told the Court that she had information about her husband’s wayward behavior culminating in a sexual relationship with a woman suspected to be suffering from HIV/AIDS. In fact both that woman and her husband have since died of the disease. The Petitioner in 17

order to try and salvage their marriage urged her husband to take an HIV test but he declined and this fact strained their marriage as a result of which the husband started drinking heavily and often took money from the business to finance this behavior. The wife felt embarrassed and stated that there was no possibility of reconciliation between them. The marriage had irretrievably broken down. She prayed for dissolution of marriage on the ground of adultery but more particularly, for fear of contracting HIV. The Respondent did not challenge the evidence of the Petitioner and so the matter was certified as an undefended cause. The Learned Judge in her ruling did not delve into the details of the reasons for the marriage but only made reference to the causes of the breakdown of the marriage and proceeded to grant an Order dissolving the marriage. Stigmatization or Discrimination? By whom, why and how? The line between these two words is very narrow. To go for a HIV test, or not to go for one? This depends on circumstances and the attitude of the person. To disclose, or not to disclose? We need to establish our own jurisprudence in determining these issues. Should we be unable to do this, we shall come to a stage where the interpretation of very simple issues touching on this subject may have to be referred to Court (for a constitutional reference). In essence we shall be allowing the Courts to make decisions as to what constitutes an offence. How can we encourage our sisters and brothers, friends, relatives, colleagues etc to accept their status? All employers require a medical certificate from a recognized medical practitioner, before confirming one in their employment; financial institutions demand that one provides them with a medical report before advancing the loan to a borrower. Besides, employers, aware of the possibility of dishonesty among employees, provide medical health insurance to its employees. The medical insurance provider furnishes the employer with periodical statements/returns on the treatment of employees. This information is confidential, but may be used by the employer, in either denying an employee a certain right or benefit. Would you attempt to compel the employer to do what he knows would not be beneficial to his business or rather, not cost effective in the long run? A court in the US had to make a decision on behalf of a family where an operation involving Siamese twins joined at the chest had to be done. The consequences of the operation were obvious to the doctors intending to operate on the infants. The question arose as to who would be best placed to give authority for the operation. The parents and family members would not give the authority. The doctors sought 18

the Court’s intervention. The Court ruled in favour of the operation, stating that the best interests of the children were paramount and required that the operation be carried out regardless of the consequences. Since one of the infants obviously had a high chance of survival anyway, then, it would be in the best interests of the children that the operation is carried out. The life of the person, according to the criminal laws of every country, lies in the hands of the State. Hence all suits against the life of a citizen are brought by the or in the name of the State/Republic. THANK YOU

Alexandra N. Muniafu, Advocate, Muniafu & Company Advocates, FPFK Head Office, Kindaruma Road, Off Ngong/Menelik Road, Next to Marie Stopes Kenya, P.O. Box 15791-00100, GPO Nairobi. Tel: 254 – 020 – 3877654/3874704 Fax: 254 – 020 – 3874704 Email: [email protected] Hand Deliveries to Dropping Zone Box No. 11 Revlon Professional Plaza, Tubman Road, Next to Teachers Service Commission..

19