December 9, 2016
The High Court in Nairobi has on 7 December 2016 declared unconstitutional a presidential directive seeking to collect names of school-going children living with HIV. The case was filed by KELIN (Kenya Legal and Ethical Issues Network on HIV & AIDS), Children of God Relief Institute, and two individuals.
The petitioners were challenging the directive in court on the grounds that it was a breach to the right to privacy and confidentiality and was likely to expose persons living with HIV to stigma and discrimination, among other human rights violations. Under the directive, County Directors of Education and Medical Services were to collect up-to-date data and prepare a report on all school-going children who are HIV positive, information on their guardians, number of expectant mothers who are HIV positive and number of breastfeeding mothers who are HIV positive. The data was to be collected in a prescribed data matrix that would directly link the above mentioned persons with their HIV status, thus putting them at a risk of being stigmatized and discriminated against. The children would be linked to their home area and school, in addition to their HIV status.
Impact on health
In an August 2015 press release on this issue, KELIN explains the link between the right to privacy and the right to health in the context of HIV and AIDS as follows: “It will roll back years of work on HIV by impacting negatively on the health-seeking behaviour, thereby increasing the risk that people will hide their HIV positive status, rather than seek treatment. Patients who seek treatment may also withhold important information out of concern for their privacy, or the fear that confidentiality will be breached. In addition, this concern may prevent patients from receiving full and appropriate treatment, including taking up life-enhancing and life-saving treatments if they fear that someone may see them. Forcing people to disclose their status, or those of their loved ones, has never helped to increase treatment rates and this directive will be no different.”
The court declared that the directive issued by President Uhuru Kenyatta on 23 February 2015 is indeed in breach of various constitutional rights, and that the actions and omissions of the respondents in relation to the directive violated fundamental rights and freedoms of the petitioners. Allan Maleche, Advocate for the Petitioners and Executive Director of KELIN, said that the petitioners welcome the judgment, but that work remains to be done “to ensure that we have the regulations in place and that will be our next battle front.” KELIN and partners advocate the need of having privacy regulations as contemplated by Section 20 of the HIV & AIDS Prevention and Control Act. “We are disappointed at the fact that the court declined from directing the minister of health to develop the relevant privacy regulations which have been long overdue.”
Background information on the case: http://www.kelinkenya.org/2015/06/announcement-2/