Gaps in the HIV/Aids law - the judgment

In the year 2006, the HIV/Aids Prevention and Control Act became law in Kenya. That same year, the Aids Law project brought a petition before the High Court of Kenya against this law.

The petition was heard by three judges and to the judges the central issue in the petition was whether section 24 of the Act was vague and broad and infringed on the rights of the patients and should therefore be declared unconstitutional.

The contentious section 24 of the Act criminalised the transmission of HIV infection and also mandated health practitioners to share information with third parties about the HIV status of their patients without the consent of such patients.

The Constitution is the supreme law of the land and any law, including customary law that is inconsistent with the Constitution, is null and void to the extent of the inconsistency and any act or omission in contravention of the constitution is invalid. This therefore means that a law is declared unconstitutional when it is contrary to, or in conflict with, or repugnant to the constitution.

Why a crime must be clearly define in law
The judges declared that legality is a fundamental rule of criminal law and nothing is a crime unless it is clearly forbidden in law and no crime can exist without a legal ground. The judges were in no doubt that one of the ingredients of the rule of law is the certainty of law and only the law can define a crime and prescribe a penalty.

And this occurs where the individual can know from the wording of the relevant provision what acts and omissions make the individual liable. In criminal matters, it is important to have clarity and certainty.

Another principle of criminal law is that the issue of whether or not a person is guilty of a crime should not be left to the subjective assessment of judges as judges have no power to create new offences.

And courts may not widen existing offences so as to make punishable conduct of a type hitherto not subject to punishment.

The acceptance of the rule of law as a constitutional principle requires that a citizen, before committing himself to any course of action, should be able to know in advance what the legal consequences are that will flow from it.

No one should be punished under the law unless the law is sufficiently clear and certain to enable him or her to know what conduct is forbidden before he or she does it. And no one should be punished for any act that does not have clear penalties under the law when the act was done.

Another court, in a similar matter, had ruled that, “A man should be able to know what conduct is and what is not criminal, particularly when penalties are involved. And he must be able to foresee the consequences of his actions, in particular to be able avoid incurring the sanctions of criminal law.”

To the judges the HIV/Aids Prevention and Control Act did not define a sexual conduct and did not explain the extent of the sexual contact.

Errors in the Act
One definition of sexual contact court took was, “The intentional touching either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh or buttocks of any person with an intention to abuse, intimidate, harass, degrade or arose or gratify the sexual desire of any person”.

The Black Law defined sexual relations as “both sexual intercourse and physical sexual activity that does not necessarily culminate in intercourse”.

Indeed the term sexual contact has been the subject of criticism by legal scholars on the ground of its lack of certainty and precision. The rule of law requires clarity in advance on the meaning of criminal provisions and the boundaries of criminal liability. Non-disclosure of HIV status should be criminal only if intentional behaviour actually leads to HIV infection.

In absence of a clear definition of what amounts to sexual contact in the Act, the judges observed that it was impossible to state with certainty and precision how the targets of the section are expected to conduct themselves and in respect of whom. The judges wondered, “Are for example, children sexual contacts in relation to their mothers and if so how is the disclosure supposed to take place between mother and child?”

The judges agreed that section 24 of the Act was drafted so broadly that it could be interpreted to apply to women who expose or transmit HIV to a child during pregnancy, delivery or breast feeding.

Privacy
The Constitution is unequivocal on the rights to privacy to the extent that privacy is one of the fundamental rights enshrined in the constitution. The Constitution states;
“Every person has the right to privacy and includes the right not to have information related to his family or private affairs unnecessarily revealed.”

The constitution also states that the right or fundamental freedom shall not be limited except by law but to the extent that the limitation is reasonable and justifiable and further that the law limiting a right must be clear and specific about the right to be limited.

The judges also ruled that it was imperative to take into account international treaties on Fundamental rights that Kenya was a signatory to. A global assessment on the role of law in the HIV/Aids pandemic noted that from the inception of the HIV/Aids pandemic, privacy has been of paramount concern.

Grounded in legal, ethical and human rights principles of autonomy and justice, privacy requires that persons have the right not to have their health status disclosed without their consent and have a right to control other persons from accessing, using and disclosing their HIV health status.

It was therefore abundantly clear to the judges that section 24 of the Act about the disclosure of one’s HIV positive status would prejudice the right to privacy unless corresponding obligations were placed on the recipients of the information to adhere to the confidentiality principle.

Conclusion
The judges concluded that the Act did not meet the principle of legality which is a component of law as section 24 was vague and overbroad and lacked certainty especially with respect to the term sexual contact. It was clear that this section failed to meet the legal requirement that an offence must be clearly defined in law as one cannot know from the wording of section 24 of the Act what acts and omissions are liable to be prosecuted.
Further the limitation to privacy as imposed by section 24 of the Act did not satisfy the requirements of the Constitution.

The judges therefore declared section 24 of the Act to be unconstitutional for being vague and lacking in certainty and likely to violate the rights to privacy as enshrined in the Constitution.

the writer is a consultant Forensic Pathologist.
[email protected]
To be continued