Court won’t stop State from enforcing law on HIV/Aids

By Judy Ogutu

The High Court has declined to issue orders stopping the Government from enforcing a law criminalising deliberate transmission of HIV.

Justice Daniel Musinga said if he were to issue such an order some prejudice was likely to occur.

He also said he had weighed competing interests of the lobby group, which had filed the case — Aids Law Project — as well as the public interest, and found public interest outweighs that of the applicant.

In its application, the lobby wanted Section 24 of the HIV and Aids Prevention and Control Act deleted, saying it puts the liberty of people infected with the virus in jeopardy.

The law states that a person who 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.

Law discriminates

The lobby argued that the HIV and Aids law discriminates breastfeeding women and other people infected with the virus.

Its advocate, Mr Ombati Omwanza said HIV and Aids Prevention and Control Act of 2006 puts women at risk through prenatal care. He said women risk prosecution for infecting their partners and being beaten up for disclosing results from prenatal health facilities.

It was its contention that infected women in drought stricken areas are likely to suffer the consequences of Section 24 of the law, if they breastfeed their babies for lack of formula or animal milk.

Consequently, it sought for orders to restrain the Attorney General and the Chief Public Prosecutor from enforcing the law, particularly the section in question.

The law, it argued, intrudes on the privacy of consensual sex between two adults because the apparatus of proof and methodology of prosecution is degrading.

In response, the AG, through State Counsel, Kepha Onyiso, opposed the application saying the law’s main aim is to guard the unsuspecting public.

He said Parliament enacted the law in good faith to protect the society. "We are only concerned with the harm that might be caused by some people living with the virus," he said.

Case will be mentioned on May 6.