Criminalization of Hiv Aids Transmission
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CRIMINALIZATION OF HIV/AIDS
TRANSMISSION
BY MUGAMBI MUHAVI .P1
1*1st year Law Student at Catholic University; Dip in Law (IU), Cert. in IP (WIPO); Legal researcher to Rtd.Hon
Justice K.J Mulwa.
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CRIMINALIZATION OF HIV/AIDS TRANSMISSION
1.0 ABBREVIATIONS
AHLR___________African Human Rights Law Report
CEDAW_________Convention on the Elimination of All Forms Discrimination
against Women
DNA____________Deoxyribonucleic Acid
eklr_____________Electronic Kenya Law Reports
HIV&AIDS_______Human Immuno Deficiency Virus
Acquired Immuno Deficiency Syndrome
HCK_____________High Court of Kenya
ICCPR___________International Covenant on Civil and Political Rights
ICESCR_________International Covenant on Economic Social and Cultural
Rights
KeCA___________Kenya Court of Appeal
UNAIDS________United Nations Programme on AIDS
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CRIMINALIZATION OF HIV/AIDS TRANSMISSION
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CRIMINALIZATION OF HIV/AIDS TRANSMISSION2.0 DEDICATION
Man has not yet invented language which truly brings out his
tried and true sentimental and passionate attachment to those
dear and special to him. No matter how hard I strain to find
terms which can accurately enact what I mean, I fail to get
any. Words have limitations. They are static. They cannot
convey the whole. All I can do for now therefore is to dedicate
this work to my mother Stella-grandmother Nkatha,
themselves epitomes of virtue, and to my almighty God who
incarnates in me the spirit of tomorrow.
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CRIMINALIZATION OF HIV/AIDS TRANSMISSION3.0INTRODUCTION
I do agree that criminalizing of HIV&AIDS discriminate against women
in more ways than one. In 2002, in its second National HIV and AIDS
Strategic Plan, the Government of Kenya declared total war on AIDS.2
Recent estimates place the HIV virus prevalence rate in adults at 6.1
% (5.2-7%).Despite these figures, most Kenyans do not know their
HIV status or the status of their spouse or sexual partners. Infact only
36% of the Kenyan population has ever been tested and given a
diagnosis.3
The HIV epidemic affects Kenyan women even more severely than
Kenyan men. Young women aged 15-24 are 5.5 times more likely to
become infected with HIV than men of the same age group and
among those already infected , three out of five HIV infected Kenyans
are female .
Women not only have to look after their own health, but also the
health of their children given that 102,000 children were infected with
HIV through mother to child transmission 2008.The probabilities of
transmitting HIV from mother to child are staggering. Although not
mentioned in Kenya's Strategic Plan, the Government of Kenya
introduced two laws in 2006 intended to curb HIV transmission; the
HIV and AIDS Prevention and Control Act (2006) and the Sexual
Offences Act (2006).
2GoK a, Kenya National HIV/AIDS Strategic Plan 2005/6-2009/10 (2006) [herein KNASP ]3UNAIDS , Gateways to Integration: A Case Study from Kenya 6(2008 )
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CRIMINALIZATION OF HIV/AIDS TRANSMISSION The Sexual Offences Act criminalizes HIV transmission in section
26(1) and unlike the HIV and AIDS Prevention and Control Act, the
Sexual Offences Act does not provide for any affirmative defences.
This paper will analyse the effects of criminalizing HIV and AIDS
transmission, through answering various questions; it will also
propose the remedies to cure those cited mischief in the laws of
Kenya.
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CRIMINALIZATION OF HIV/AIDS TRANSMISSION4.0Questions Presented
4.1 Whether criminalizing HIV transmission can avoid discriminating
against women when they are more likely to know their HIV status,
less able to negotiate safer sex, and alone bare the risk of mother-to-
child transmission?
4.2Whether criminalizing HIV transmission discriminates against people
with HIV when it requires only people with HIV rather than both
partners to practice safe sex and engenders stigma against the
disease?
4.3Whether section 26 of the Sexual Offences Act and section 24 of the
HIV and AIDS Prevention and Control Act violate due-process rights of
people with HIV when they impose criminal sanctions on negligence ,
undermine their presumption of innocence, and do not allow them
effective affirmative defences ?
4.4 Whether criminalizing HIV transmission violates the privacy of
people with HIV when it intrudes in intimate activities and forces them
to reveal their HIV status?
4.5Whether section 26 of the Sexual Offences Act and section 24 of the
HIV and AIDS Prevention and Control Act impose inhuman and
punishment on people with HIV through excessive prison sentences
for safe and consensual activities?
4.6Whether criminalizing HIV transmission violates the right of children
to have families by sentencing their mothers to prison?
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CRIMINALIZATION OF HIV/AIDS TRANSMISSION4.7 Whether criminalizing HIV transmission infringes upon the right of
people with HIV to a life with dignity when the laws criminalize natural
and intimate activities?
4.8 Whether criminalizing of HIV transmission will help prevent the
spread of HIV in Kenya when it has not had a deterrent effect against
risky sexual behaviours and may actually undermine other public
health initiatives?
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CRIMINALIZATION OF HIV/AIDS TRANSMISSION5.0 SUMMARY OF THE ARGUMENT.
Section 26 of the Sexual Offences Act and section 24 of the HIV and
AIDS Prevention and Control Act discriminate against women thus in
violation of Article 27(4) of the Constitution of Kenya and the
Convention on all Forms of Discrimination Against Women. Women
are biologically more susceptible to HIV and less able to negotiate
safer sex with partners than men. Therefore, they will likely face a
disproportionate number of prosecutions for HIV transmission.
Because women are more likely to know their HIV status earlier
through antenatal testing, male partners and prosecutors may blame
them for being the source of infection. Furthermore only women can
cause mother to child transmission of HIV, which constitutes an
offence under both Acts, so this creates a special category of
culpability only for women.
The law places the entire burden for taking precautions during sexual
encounters on people with HIV rather than encouraging all partners to
take responsibility. They also do not distinguish between people in
different stages of the disease or the actual risk of infectiousness but
rather classifies anybody with HIV as a danger .This will lead to even
more stigma against people with HIV as the law labels them all as
potential criminals.
That regime of laws also violate the rights of people with HIV to due-
process and a fair trial under article 50 of the constitution and article
7 of the African Charter on Human and Peoples Rights .
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CRIMINALIZATION OF HIV/AIDS TRANSMISSIONFirst they criminalize intimate and natural activities regardless of the
state of mind of defendants, even though Kenyan law only allows
criminal sanctions for intentional or reckless acts.
Second section 10 of the Sexual Offences Act unfairly shifts the
burden of proving their HIV status at the time of the alleged incident
onto defendants.
Third, the laws do not provide access to phylogenetic testing, which
could allow defendants to prove that they were not the source of the
complainants infection. And finally, the Sexual Offences Act
undercuts the affirmative defences of the HIV and AIDS Prevention
and Control Act, placing defendants in jeopardy of being able to
conform to the latter but not the former.
Criminalizing HIV transmission violates the right to privacy of people
living with HIV under Article 31 of the Constitution and article 17 of
the International Covenant on Civil and Political Rights. Infact, it may
undermine other public health initiatives by sending mixed messages
about sharing responsibility for safe sex and creating a mistrust of
public health agencies. In general, utilizing public health law provides
for a more flexible and effective response than criminal law. If the
government does need to prosecute intentional transmission, it easily
could do so under the Penal Code Cap 63 Laws of Kenya, on the
provision of 'grievous bodily harm'. Thus, HIV-specific criminal
legislation is not only unnecessary but also unhelpful.
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CRIMINALIZATION OF HIV/AIDS TRANSMISSION6.0 ARGUMENTS AVERED
While the Government of Kenya admirably seeks to combat the HIV
epidemic, criminalizing HIV transmission through section 26 of the
Sexual Offences Act and section 24 of the HIV and AIDS Prevention
and Control Act will not deter the risky behaviours that spread HIV but
rather violate the rights of Kenya's. Criminalization infringes upon the
rights to non-discrimination, due process, privacy, freedom from
inhuman and degrading punishment, family and life with dignity
under the new Kenyan constitution and international law. Under
international law, the United Nations Committee on Economic, Social
and Cultural Rights (CESCR), which oversees implementation of the
right to health, suggests the burden of justifying coercive public
health measures criminalizing people with HIV, to be ''the latest
restrictive alternative'' in order to avoid infringing on their rights.
Following the spirit of interpretation in which various Kenyan Courts
have stressed the importance of individual autonomy and
undesirability of restricting freedom; the courts should find the
section 26 of the Sexual Offences Act and section 24 of the HIV and
AIDS Prevention and Control Act nonconforming with the Constitution
and international law.
6.1 Laws Criminalizing HIV Transmission Discriminate Against
Women and People with HIV thus in violation of Kenya's
Constitution.
Section 24 of the HIV and AIDS Prevention and Control Act and
section 26 of the Sexual Offences Act violate the non-
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CRIMINALIZATION OF HIV/AIDS TRANSMISSIONdiscrimination clause of the Kenyan Constitution.4 Both laws
contravene Article 27 because they effectively discriminate
against women and explicitly discriminate people with HIV or
AIDS. Thus in violation of Kenya's constitutional and international
obligations. The HIV and AIDS Prevention and Control Act and
the Sexual Offences Act are discriminatory because women are
far more likely to be prosecuted under the laws. This is because
women are: 1) More likely to be infected with HIV and more
likely to be aware that they have the disease; 2) subject to a
higher standard than men because in addition to protecting
other adults, women must also Prevent mother-to-child
transmission; 3) and less able to protect themselves and others
from contracting HIV/AIDS because of their lower social status in
Kenyan society.
Conclusively I would argue that;
First, laws Criminalizing HIV transmission in Kenya discriminate
against women with HIV and thus violating provisions under the
new Constitution and various international obligations:5
Secondly, laws specifically criminalizing HIV transmission
unfairly discriminate against all Kenyans with HIV.
4 Article 27 (4) of the Constitution requires that the state shall not discriminate directly
or indirectly against any person on grounds of health status.5 Mukungu vs. Republic (2003) AHRLR 173,176 (C.A)(Kenya); Rono vs. Rono (2005) AHRLR 107,114
(KeCA 2005)
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CRIMINALIZATION OF HIV/AIDS TRANSMISSION6.2 The Sexual Offences Act and HIV and AIDS Prevention and
Control Act violate the Constitutional Due-Process Rights
of People with HIV.
Kenya's Sexual Offences Act and HIV and AIDS Prevention and
Control Act violate the constitutional due-process and fair trial
rights of persons with HIV under Article 50 of the Constitution.
First, the laws impose criminal sanctions regardless of the state
of mind of the defendants, so they cover activities that
constitute mere negligence, which should be held liable only
under civil law. Second, the Government of Kenya would need to
afford defendants with HIV the facilities and scientific evidence
they need to defend themselves, including phylogenetic testing.
Thirdly, section 10 of the Sexual Offences Act drastically
undercuts any presumption of innocence by shifting the burden
of proof from the prosecution onto defendants and presuming
they had HIV at the time of the alleged HIV transmission. Fourth,
the government of Kenya must afford adequate facilities to
persons with HIV to prepare their defence.6 Finally, because the
language in the two conflicts, people with HIV lack an effective
affirmative defence against prosecution.7
6.3 The Sexual Offences Act and HIV/AIDS Prevention and
Control Act Violate the Right to Privacy of People Living
with HIV.
Section 26 of the Sexual Offences Act and section 24 of the HIV
and AIDS Prevention and Control Act violate the constitutional
6Juma vs. Attorney General, (2003) A.H.R.LR (H.C.K) (Kenya)7State vs. Morwamang, (2008) (Botswana)
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CRIMINALIZATION OF HIV/AIDS TRANSMISSIONright to privacy of people with HIV. The right to privacy is
expressly provided for under Article 31 of the constitution.
Furthermore, several international conventions Kenya has
ratified safeguard the right to privacy of intimate activities.
Criminalizing HIV transmission violates these rights by
interfering in intimate activities8 between two consenting adults
and requiring people with HIV to reveal their HIV status. Thus,
the provisions of the Sexual Offences Act and the HIV and AIDS
Prevention and Control Act violate the constitution and
international law.
6.4 The Sexual Offences Act and HIV/AIDS Prevention and
Control Act Impose Cruel, Inhuman and Degrading
Punishments on People Living with HIV.
Section 26(1) of the Sexual Offences Act and section 24(3) of the
HIV Prevention and Control Act violate Kenya's Constitution
because the harsh fines and prison sentences constitute
inhuman and degrading punishments.9
First the provisions criminalize many perfectly safe and natural
intimate activities that should not be subjected to any
culpability, much less criminal sanction. Second, the 15 year
minimum prison sentence for transmitting HIV under the Sexual
Offences Act is far higher than that of other countries. Finally,
because of the lack of health care in Kenya's prison system,
imprisoning people with HIV seriously jeopardizes their health
8Toonen vs. Australia, U.N .Doc. CCPR/C/50/D/488/1992 (50th Sess.,1994)9 Under Art.25(a)
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CRIMINALIZATION OF HIV/AIDS TRANSMISSIONand could effectively become a death sentence, which would be
grossly disproportionate to their original crime.
6.5 HIV Criminalization Laws Violate the Kenyan Child's Right
to Family.
Kenya's HIV criminalization laws violate a child's right to family
when mothers are prosecuted for mother to child transmission.
The right to form a family as provided for under section 6(2) of
the Children's Act of 2001, which provides that a child has a right
to live and be cared for by his/her parents.10 First Kenya has a
heightened duty to protect mothers, which these laws ignore by
prosecuting mother-to-child transmission. Secondly, these laws
require children to live without their mothers, resulting in
substandard care. The forced separation of children from their
mothers will automatically result into what I term as a sub-
standard childcare.
6.6 Prohibiting Persons with HIV from Engaging in Intimate
Activities Violates Their Right to a Life with Dignity.
Both of Kenya's laws criminalizing HIV transmission pose a
significant threat to a person's right to life by restricting their
activities based on their HIV-positive status.
It is my opinion that Kenya's' HIV criminalization laws, dictate
what human behaviour is acceptable among people with
HIV/AIDS thus eliminating their right to engage in normal human
behaviour. I contend that there is a public safety concern, but
the laws undeniably affect one of the most normal human
10 R.M. vs. Attorney-General, (2006) AHRLR 256,271 (KeHC 2006)
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CRIMINALIZATION OF HIV/AIDS TRANSMISSIONfunctions, an activity that defies living and life in its most basic
sense.
6.7 The Sexual Offences Act and HIV/AIDS Prevention and
Control Act Do Not Provide Substantial Public Health
Benefits.
Not only does criminalization of HIV transmission violate Kenya's
Constitution, but it also makes for bad public health policy.
As result, I think that three issues may arise namely: First,
criminalization of HIV transmission will not prevent the spread of
HIV or deter risky sexual behaviours; secondly criminalization of
HIV transmission may undermine other public health initiatives
undertaken to control the HIV epidemic and thirdly, several more
effective alternative policy approaches infringe less on
constitutional rights than criminalizing HIV transmission.
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CRIMINALIZATION OF HIV/AIDS TRANSMISSION
7.0 RECOMMENDATIONS.
1. I recommend thatprosecution be made discretionary, based on the
circumstances of the accused and the reasons he or she chose not
to disclose his or her status ;
2. I recommend that section 26(9) of the Sexual Offences Act should
be limited to sexual offences under the Act, found in sections 3
through 11 and 20 through 21 ;
3. I recommend that section 26(10) (b) of the Sexual Offences Act
should be struck from the Act. This section constitutes unfair burden
shifting to a defendant to prove that he or she did not have HIV at
the commission of an offence under the Act ;
4. I recommend that section 30 of the Sexual Offences Act to be
declared inapplicable to people convicted under section 26 of that
Act provided such act was not intentional. This section violates a
woman's right to work by requiring a person to disclose his or her
conviction when applying for employment that places him or her in
care of children, or in a position of authority over children or any
other vulnerable person;
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CRIMINALIZATION OF HIV/AIDS TRANSMISSION5. I recommend that individuals be given the right to request DNA
testing to produce exculpatory evidence in court so as to prove that
the HIV strains do not match ;
6. I recommend that new legislation should be enacted to add a
statute of limitations for each crime;
7. I make this recommendation to the government to significantly
expand access to proven HIV prevention (including positive
prevention) programmes, and support voluntary counselling and
testing for couples, voluntary disclosure, and ethical partner
notification;
8. I make these recommendation to civil societies, monitorproposed
and existing laws and advocate againstthose which inappropriately
criminalize HIV transmission and impede provision of effective HIV
prevention, treatment, care and support services;
9. I also make this recommendation to international partners to
support research on the impact of HIV-related laws on public and
human rights.
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CRIMINALIZATION OF HIV/AIDS TRANSMISSION
8.0 CONCLUSION.
Section 24 of the HIV and AIDS Prevention and Control Act and
section 26 of the Sexual Offences Act are understandable attempts to
control the HIV epidemic in Kenya, but in addition to likely being
ineffective, both attempts to criminalize HIV transmission violate the
human rights of people, and particularly women, living with HIV in
Kenya.
The original intent of both of these laws was to provide recourse to
people who were the victims of intentional HIV transmission and the
Sexual Offences Act was meant specifically to protect Kenyan women
from an upsurge in sexual offences. While serving a noble purpose,
both sections were drafted so broadly as to criminalize activities that
pose no risk of transmission. These laws violate the rights to non-
discrimination ; due process; privacy; to be free from cruel, inhuman
and degrading treatment; family and to a life with dignity. Based on
these violations, these laws should be overturned in favour of using
general criminal provisions, such as the penal provision protecting
against grievous bodily harm.
But at the very least, these laws should be redrafted to provide an
exemption for mother-to-child transmission and allow prosecutorial
discretion to choose whether or not to prosecute people based on
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CRIMINALIZATION OF HIV/AIDS TRANSMISSIONtheir circumstances, in order to minimize the discriminatory effect on
women.
9.0 REFERENCES
Statutes
Constitution of Kenya (2010).
Sexual Offences Act, (2006) Cap. 3 Laws of Kenya.
HIV and AIDS Prevention and Control Act, (2006) Cap.14 Laws of Kenya.
Articles and Journals.
Moono Nyambe: Criminalization of HIV transmission in Europe GNP+,
2005
FIDA Kenya: Criminalization of HIV Transmission Legal Brief 2010.
UNAIDS: Criminal Law, Public Health and HIV Transmission- A Policy
Options Paper, 2002.
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CRIMINALIZATION OF HIV/AIDS TRANSMISSIONExecutive Committee on AIDS Policy and Criminal Law: Detention or
Prevention?-a report on the impact of the use of criminal law on public
health and the position of the people living with HIV Amsterdam, 2004.
Matthew Weait and Yusef Azad: The Criminalization of HIV transmission
in England and Wales: questions of law and policy, in HIV/AIDS Policy and
Law Review vol.10/2, August 2005.
WHO Europe: WHO technical consultation in collaboration with the
European AIDS Treatment Group and AIDS Action Europe on the
criminalization of HIV and other sexually transmitted infections October
2006.
Lazzarini Z, Bray S and Burris S (2002) Evaluating the Impact of Criminal
Laws on HIV Risk Behaviour Journal of Law, Medicine and Ethics 30:239-
253.
Asia Pacific Network of People Living with HIV/AIDS (2004) AIDS
Discrimination in Asia APN+ Bangkok, Gielen AC, AC, McDonnell KA, Burke
JG, Ocampo P (2000) Women lives after an HIV positive diagnosis:
disclosure and violence Maternal and Child Health Journal 4(2): 111-120
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