Eradicating HIV and AIDS discrimination in Kenya

According to the National Aids Control Council, Kenya is ranked fourth in the world amongst countries with the highest HIV and AIDS prevalence rate at 6.3 %. South Africa tops the list with Nigeria and India coming in second and third. In Kenya, approximately 1.5 million People are Living with HIV (PLHIV), out of which 8 % are women and 4% are men. South Africa has a population of 5.6 million PLHIV, 3.3 million PLHIV in Nigeria and India with a population of 2.6 million PLHIV. Nearly 30 years into the epidemic, however, there are many countries in which negative legal environments undermine HIV responses and punish, rather than protect, people in need.

To address this gap, UNDP, in conjunction with the Ministry of State for Special Programmes, UNAIDS, NEPHAK and KELIN, held the first national symposium on HIV, Law and Human Rights on 30th – 31st October, 2012. The main objective of the national symposium was to initiate a dialogue among legal professionals, law enforcement agencies, communities of PLHIV, service providers, government officials and institutions mandated to protect and uphold human rights, on how to utilize the law and human rights to create an enabling environment for HIV prevention, treatment, care and support. This inaugural symposium attracted the participation of over 250 national and county stakeholders.

Although Kenya boasts a vibrant national HIV response, the programme addressing HIV, law and human rights has not received adequate attention. There exist gaps in knowledge between the law implementers, enforcers and affected communities even where appropriate legal provisions are available to protect their rights.

Speaking at the opening of the symposium, UNDP Kenya Country Director, Maria-Threase Keating, drew attention to the findings and recommendations contained in the Global Commission on HIV and the Law 2012 Report, HIV and the Law: Risks, Rights and Health. "In more than 60 countries, it is a crime to expose another person to or transmit HIV. In effect, these laws and practices discourage people from seeking an HIV test and disclosing their status. Additionally, more than 100 countries criminalize some aspect of sex work hence preventing these sex workers from accessing essential HIV prevention and care services", said Ms. Keating.

The report incorporated testimonies of more than 700 people most affected by HIV-related legal environments from 14 countries.

A majority of Kenyans do not have access to the formal and informal justice system. The government is yet to actualize the provision on legal aid services in light of the contents of Article 48 of the Constitution that obligates it to provide access to justice to all citizens. Legislation required for the enforcement of Article 43 of the Constitution, which is the enabling provision for the enjoyment of socio- economic rights has not been enacted. As a result of this, PLHIV often lack access to adequate and quality legal services.

The impact of the HIV prevalence in Kenya is profound and an impediment toward the achievement of the Vision 2030. According to the Permanent Secretary in the Ministry of State for Special Programmes, Andrew Mondoh, "HIV/AIDS contributes to 29% of all deaths in Kenya – higher than cancer and malaria." This presents a public health and social economic challenge not only to Kenya, but the rest of the world. The high HIV prevalence rate in Kenya has led to numerous human right abuses against PLHIV and HIV affected families.

However, gains have been made in providing legal redress for cases of discrimination against PLHIV and HIV affected families. Kenya is the first country in the world to operationalize a HIV Equity Tribunal in 2011. The Tribunal has the power of a court and can receive evidence, hear witness accounts, conduct full hearings and pass judgments on matters that focus on the protection of human rights of people living with HIV. It therefore encourages those infected with and affected by HIV that have been violated in any manner that is in breach of the HIV/AIDS Prevention and Control Act of 2006 to come forward and air their grievances. "To date, the tribunal has undertaken 16 cases of which 6 have been concluded and 10 are currently on-going," mentioned Mr. Mondoh.

Outcomes from the symposium included recommendations that will inform a sustained momentum of advocacy on confronting HIV in the context of law and human rights, as well as a creation of strategic linkages that will facilitate a rights based approach of dealing with human rights issues relating to HIV.

The two day symposium ended with an award ceremony recognizing the continuous work of individuals and institutions in eradicating the stigma toward the HIV infected and affected population in Kenya. These national heroes included: David Mbote Kuria who received the Most at Risk Populations and HIV Award; Ambrose Rachier was honoured with the Advancing HIV non-discriminatory practices in the workplace Award; recognition of Ann Soy-Mwendia with the Human rights and HIV (Media Category)Award; the National Empowerment Network of People Living with and affected by HIV and AIDS in Kenya (NEPHAK) also with the Human rights in HIV treatment Award; and the Kenya Legal and Ethical Issues Network on HIV and AIDS(KELIN) with the double Advancing children rights in HIV and The cross between culture and HIV Awards.

"The law alone cannot stop AIDS. Nor can the law alone be blamed when HIV responses are inadequate. However, the legal environment can play a powerful role in the well-being of people living with HIV and those vulnerable to HIV... this is a basic fundamental right of every citizen in Kenya and across the globe today," concluded Ms. Keating