Discrimination and the unlawful disclosure of a person's HIV status remain significant challenges in Kenya. However, the law provides robust protections for the privacy and dignity of persons living with HIV.
Constitutional Protections
Under the Constitution of Kenya:
- Article 27: Prohibits direct or indirect discrimination on the basis of health status.
- Article 28: Guarantees that every person’s dignity must be respected and protected.
- Article 31: Protects the right to privacy, which includes the right not to have private information revealed unnecessarily.
The HIV and AIDS Prevention and Control Act (2006)
The HIV Act specifically regulates testing and disclosure:
1. Informed Consent
HIV testing must be conducted only with informed consent—given without fraud, force, or threat. Testing without consent is only allowed in extreme emergencies where the patient is unconscious and the test is clinically necessary.
2. Privacy of Results
The law stipulates that no person should disclose HIV test results to a third party without the written consent of the person tested. Unauthorized disclosure by a medical professional or a supervisor is a violation of the law.
3. Employment Rights
An employer cannot terminate employment based solely on HIV status unless they can prove the job requires a specific health state that the employee cannot meet.
Seeking Justice
If you have experienced unlawful disclosure or discrimination, you can lodge a complaint with the HIV and AIDS Tribunal of Kenya. The Tribunal has the mandate to hear and determine cases regarding violations of the HIV Act and can award damages or order reinstatement in employment cases.
Ombogo and Company Advocates is dedicated to protecting the rights and dignity of all individuals. If your rights have been violated, we are here to provide expert legal representation.
Contact us at legal@ombogo.co.ke for a confidential consultation.
Originally published in the Daily Nation Newspaper.
