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The HIV and AIDS Prevention and Control Bill, 2006. Kenya

The HIV and AIDS Prevention and Control Bill, 2006. Kenya

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Published by: simplesimo on Feb 28, 2009
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OCTOBER 2006  In discussing the subject on The HIV and AIDS Prevention and Control Bill, 2006 and its legal implications, it is important toappreciate that inasmuch as we may make legislation, to add to the existing volumes of various enactments in our country,hold conferences and make deliberations based on statistical data available from the Government or other organizations, theimplementation thereof shall only be achieved when all of usare ready to conscientiously embrace the principle oBEHAVIOUR CHANGE, without which all these legislations will remain paper legislations.While preparing the points of discussion in this paper,reference has been made to the laws of the country, case law (decided cases) – both reported and unreported – to explainand elaborate the various relevant provisions. It is not anauthority on legal issues but my general comments anobservations on what is happening around. They do not represent the views of the Law Society of Kenya either.Should the Bill be passed and become law, then, amendmentsmay have to be made to reflect the reality on the ground. Somuch information, records and data shall have to be borrowed from those entrusted with the day-to-day care of peopleaffected and infected with the HIV and Aids virus. This may bedone through seminars where each section, part or provisionwould or may be discussed at length and reasonablerecommendations made.DISCRIMINATION OR STIGMATIZATION?   A.The Law on Discrimination and HIV: Section 82 of theConstitution provides for protection from discrimination. It is afundamental right.1.CONSTITUTIONAL PROTECTION FROM DISCRIMINATORY LAWS:
The Constitution prohibits the making of any law, which shall makeany provision that is discriminatory either of itself or in its effect. Thisrule has the following three qualifications or exceptions. It is provided that a law may be discriminatory so far as that law makes provision:-a)with respect to persons who are not citizens of Kenya;b)with respect to adoption, marriage, divorce, burial, devolutionof property on death or other matters of personal law;c)for the application in the case of members of a particular raceor tribe of customary law with respect to any matter to theexclusion of any law with respect to that matter which isapplicable in the case of other persons; or d)whereby persons may be subjected to a disability orestriction or may be accorded a privilege or advantage whichhaving regard to its nature or to special circumstances pertaining to those persons is reasonably justifiable in ademocratic society.ii)It is also provided that nothing contained in any law shall beheld to be inconsistent with or in contravention of protectionfrom discrimination on by law in question makes provisionwith respect to standards or qualifications specifically relatingto race, tribe, place of origin or residence or other locaconnection, political opinion colour or creed) to be required of a person who is appointed to an office in the public service, ina disciplined force, in the service of a local government authority or in a body corporate established by any law for  public purposes.
The Constitution provides that no person shall be treated in adiscriminatory manner by a person acting by virtue of any written law or in the performance of the functions of a public office or a public authority.
in the context of the constitutional safeguard under Section 82 of the Constitution means;-
‘affording different treatment to different persons attributablewholly or mainly to their respective descriptions by race, tribe, place of origin or residence or other local connection, political opinions, colour, creed or sex whereby persons of one suchdescription are subjected to disabilities or restrictions to which persons of another such description are not made subject or are accorded privileges or advantages which are not accorded to persons of another such description’.
To warrant protection from discrimination it must be proven that:-a)treatment in a discriminatory manner was done by a person acting by virtue of any written law or in the performance of the functions of a public office or a public authority; and b)different treatment was afforded to different personsand was attributable wholly or mainly to theirespective descriptions by race, tribe, place of origin, or residence or other local connection, political opinion,colour, creed or sex.
Would different treatment of a HIV person by a person not acting by virtue of any written law or in the performance of the functions of a public office or a public authority on grounds of their medical conditionentitle such person to protection from discrimination under Section 82of the Constitution? 
The High Court (Mugo Ag. J) in J. A. O.- v - Homepark CaterersLtd & 2 others Nairobi - High Court Civil Case No. 38 of 2003
(unreported) in dealing with an application wherein discrimination ongrounds of HIV status was in question observed that:-
‘treatment of HIV/AIDS patients by doctors, hospitals,employers and others has been put under legal scrutiny ( inother jurisdictions) with a view to moulding attitudes an public policy such that the same would be free odiscriminatory tendencies’.

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