Criminalization of Hiv Aids Transmission

8/4/2019 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

Mugambi Muhavi .P Page 2


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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.


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.


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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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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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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