Criminalization of Hiv/Aids Transmission: by Mugambi Muhavi .P

CRIMINALIZATION OF HIV/AIDS TRANSMISSION
BY MUGAMBI MUHAVI .P1
*1st year Law Student at Catholic University; Dip in Law (IU), Cert. in IP (WIPO); Legal researcher to Rtd.Hon
Justice K.J Mulwa.
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
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2.0 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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3.0 INTRODUCTION
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).
2
3
GoK a, Kenya National HIV/AIDS Strategic Plan 2005/6-2009/10 (2006) [herein KNASP ] UNAIDS , Gateways to Integration: A Case Study from Kenya 6(2008 )
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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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4.0 Questions 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-tochild transmission? 4.2 Whether 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? 4.3 Whether 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? 4.5 Whether 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? 4.6 Whether criminalizing HIV transmission violates the right of children to have families by sentencing their mothers to prison?
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4.7 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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5.0 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 dueprocess 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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First 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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6.0 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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discrimination 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.
Article 27 (4) of the Constitution requires that the state shall not discriminate directly or indirectly
5
against any person on grounds of health status.
Mukungu vs. Republic (2003) AHRLR 173,176 (C.A)(Kenya); Rono vs. Rono (2005) AHRLR 107,114 (KeCA 2005)
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6.2 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
6 7
Juma vs. Attorney General, (2003) A.H.R.LR (H.C.K) (Kenya) State vs. Morwamang, (2008) (Botswana)
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right 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. 6.4 The Sexual Offences Act and HIV/AIDS Prevention and 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
8 9
Toonen vs. Australia, U.N .Doc. CCPR/C/50/D/488/1992 (50th Sess.,1994) Under Art.25(a)
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and 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 substandard 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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functions, an activity that defies living and life in its most basic sense. 6.7 The Sexual Offences Act and HIV/AIDS Prevention and 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 that prosecution 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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5. 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, monitor proposed and existing laws and advocate against those 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 nondiscrimination ; 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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their 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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Executive 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 30:239253.
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
WEBSITES. http://www.chr.up.ac.za/index.php/documents-by-theme/hivaids.html
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http://www.chr.up.ac.za/index.php/documents-by-theme/women.html
www.kenyalaw.orgaccessedon22march2011
www.fidakenya.orgaccessedon28february2011
www.law.georgetown.edu/clinics/iwhrc/index.htmlaccessedon16march201 1
http://www.gnpplus.net/criminalization/rapidscan.pdfaccessedon16march2 011
http://papers.ssrn.com/sol3/papers.cfm? abstract_id=913323accessedon16march2011
http://www.chr.up.ac.za/index.php/documents/hiv-advocacy.html
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CRIMINALIZATION OF HIV/AIDS TRANSMISSION

BY MUGAMBI MUHAVI .P1

Justice K.J Mulwa.