The High Court in Nairobi has declined to declare unconstitutional the controversial law making it a crime to deliberately spread HIV and Aids and other sexually transmitted diseases.
Justice Hedwig Ong'udi found that the case filed by five persons living with HIV was out of an erroneous interpretation, as the law does not criminalise married couples or a person who is already infected.
While disclosure is voluntary, Section 26 of the Sexual Offences Act stipulates that a person living with HIV who knowingly and recklessly places another person at risk of becoming HIV-infected commits an offense that upon conviction can attract a jail term of not less than 15 years, which can be heightened to life.
The law provides that a person shall be found guilty even when married to the other partner.
Justice Ong'udi said that the law was not meant to criminalise anyone living with the virus, instead, it is meant to punish offenders who infect their victims knowingly.
“It cannot, therefore, be said that the impugned provision violates and limits the petitioners’ rights as submitted. The petitioners have explained how they have even gone for treatment and counseling,” said Justice Ong'udi.
"Their marriages have not been declared unlawful because one party has HIV. Nobody is looking down upon them. HIV must be contained hence the provisions in the Sexual Offences Act."
The case was filed by five persons living with HIV alongside Kenya Legal And Ethical Issues Network on HIV and Aids (Kelin).
According to them, the current law is vague and could be used by the police to harass anyone who is living with HIV and Aids.
The first petitioner codenamed EM narrated that he was married to two wives and had two children.
He told the court that on February 27, 2018, he was arraigned and charged with the offense of deliberate transmission of a life-threatening sexually transmitted disease contrary to Section 26(1) of the Sexual Offences Act No.3 of 2006.
He was accused of exposing a police officer to HIV by biting the officer’s finger the previous day. According to EM, he had bitten the officer as he forcefully handcuffed him.
Upon being arrested, the police officers took him to Sigowet sub-County Hospital where his blood samples were taken and tested for HIV without his consent or an explanation.
He was thereafter detained at Sondu Police Station. The man lamented that the charges were solely based on his HIV status.
Discrimination and stigma
He argued that the State pressed charges despite a lack of evidence that the virus can be transmitted through a bite.
He said the law entrenches discrimination and stigma as it makes persons living with HIV susceptible to abuse as demonstrated in his prosecution.
The second petitioner was SN. She told the court that she met her husband around 2002 and they started living together.
She discovered that she had HIV after giving birth to her second child.
SN stated that when her husband started experiencing complications, he still refused to get tested.
He instead accused her of bringing HIV to their home and became violent towards her threatening to kill her.
He swore that he would report her to the police for bringing HIV to their home.
In view of this, she supported the petition since the impugned section makes women vulnerable to violence and violates their constitutional rights.
The fourth and the fifth petitioners are husband and wife. The two, according to court records are a discordant couple.
The court heard that the man codenamed MR married the woman codenamed MA after the latter’s husband died.
She tested positive and the man is negative but they agreed to continue living together.
The woman lamented that the Sexual Offences Act makes her a potential suspect due to her relationship with MR.
She said thousands of discordant couples and breastfeeding mothers in Kenya run the risk of being arrested and charged under this provision, thus violating their constitutional rights.
She argued that this criminalisation deters people from testing for HIV and other sexually transmitted infections and disclosing their status.
MR testified that he married her in 2011 while knowing her HIV status and said the law had created a blanket condemnation for all persons living with HIV and is a barrier for them to enjoy marriage with negative partners.
The sixth petitioner, codenamed is a person living with HIV.
She said she has witnessed how persons living with HIV are exposed to stigma and discrimination.
She said their confidential information is disclosed, they are neglected by healthcare providers, are required to be tested before employment while some are dismissed due to their status and exposed to violence.