CASE ANALYSIS

Section 24 of the HIV and AIDS Prevention and Control Act Kenya:
Reviewing AIDS Law Project V Attorney General & Another (2015)
Introduction
On March 18th 2015, a three judge bench seating at the High Court in Nairobi
delivered a ground-breaking decision with regard to the constitutionality of
Section 24 of HIV and AIDS Prevention and Control Act No. 14 of
2006.
Honorable Justices Isaac Lenaola, Mumbi Ngugi and George V. Odunga held
that Section 24 of the HIV and AIDS Prevention and Control Act as
defined in the act is vague, overbroad and lacking in

legal certainty

particularly in respect to the term sexual contact.

A brief history of the case
The purpose and the objectives of the HIV and AIDS Prevention and
Control Act No.14 of 2006 (HIV Act) is to eliminate the stigma and the
discrimination that persons living with HIV and AIDS face in Kenya and to aid
in

the

advancement

of

the

rights

of

women

and

girls

who

are

disproportionately affected by the HIV epidemic.

On 5th November 2010, the Government of Kenya through the Minister of
State for Special Programmes vide Legal Notice No. 180, published that the
commencement date for the operationalization of Section 24 of the HIV
and AIDS Prevention and Control Act would be 1st December 2010.
On 14th December 2010, the petitioner approached the court challenging the
above controversial provision. According to the petition, Section 24 of the
HIV Act was likely to infringe on the constitutional rights of persons living
with HIV if implemented. The petitioner also sought conservatory orders to
stay the effect of the legal notice until the determination of the suit.
Honorable Justice D Musinga issued judgment on the application on 7 th April
2011 declining conservatory relief orders and recommended a three judge
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bench to be composed to determine the matter. The petitioner was later

joined in their petition by Vihda Association as an interested party and the
Center for Reproductive Rights as amicus curiae on 14th June 2011 and 29th
November 2011 respectively.
The arguments of the amicus curiae served to support and further strengthen
the position taken by the petitioner by emphasizing on the need for legal
certainty as well as to have policies and legislations that reduce stigma and
discrimination among persons living with HIV and AIDS.
The Interested party filed an application withdrawing from the suit on 9 th April
2014.
A final judgment was delivered by the High Court Judges, Justice Isaac
Lenaola, Justice Mumbi Ngugi and Justice George V Odunga on March 18th
2015.
The Petition
In their petition, The AIDS Law Project sought the following prayers:
a) That a declaration be made to the effect that Section 24 of the HIV
and AIDS Prevention and Control Act, No. 14 of 2006 be declared
unconstitutional.
b) That a declaration be made that the offence created by Section 24 of
the HIV and AIDS Prevention and Control Act, No. 14 of 2006 is
so wide and vague to come within the group of laws that are an
unacceptable discrimination against persons by way of their health
status and therefore inconsistent with the basic Law in that it violates
the rights guaranteed under Article 9 of the ICCPR, incorporated into
Article 27 of the Constitution.
c) That the Respondents be condemned to pay the costs of this Petition.
d) That such other order(s) be made as the Honorable Court shall deem
just.
Section 24(1) provides that,

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a person who is and is aware of being infected with HIV or is

carrying and is aware of carrying the HIV virus shall(a) take all reasonable measures and precautions to
prevent the transmission of HIV to others; and
(b) inform, in advance, any sexual contact or person with
whom needles are shared of that fact.
(2) A person who is and is aware of being infected with HIV or
who is carrying and is aware of carrying HIV shall not, knowingly
and recklessly, place another person at risk of becoming
infected with HIV unless that other person knew that fact and
voluntarily accepted the risk of being infected.
Section 24 (3) further states that, a person who contravenes the provisions
of subsections (1) or (2) commits an offence and shall be liable upon
conviction to a fine not exceeding five hundred thousand shillings or to
imprisonment for a term not exceeding seven years, or to both such fine and
imprisonment.
Interestingly, the petitioners in this case supported Government efforts to
combat the epidemic that has been declared a national disaster in several
countries

in Sub-Saharan Africa. However, they argued, that it is prejudicial

that an offence may arise under Section 24 (1) as read with Section 24 (3)
of the HIV Act from a failure to disclose information to a sexual contact
whose meaning is largely undefined in the act.
Petitioners arguments
It was submitted that, the term sexual contact has no generally accepted
legal or social definition. The lack of a statutory definition of the term renders
its interpretation more problematic as there is no interpretative reference in
law or society. The courts would therefore be left to device their own
interpretation of the term sexual contact.It was further pointed out that
courts would have a very difficult time determining when a sexual contact
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has

been

established.

interpretations

and

This

potentially

may

lead

illogical

to
and

arbitrary

and

inconsistent

capricious

results.

This

inconsistency would render it difficult for an ordinary person to identify which

contact is proscribed.
The petitioner argued that the provisions of the Section 24 of the Act are
therefore worded in a vague and overbroad manner incapable of giving the
ordinary citizen sufficient notice of the criminalized act or omission and the
intended objective its meant to achieve. It equally fails to adhere to the
principles of legality that; the law must be precise, clear and capable of
giving sufficient notice to the ordinary citizen of what is the forbidden act or
omission.
Further, the petitioner argued that a provision of the law, specifically Section
24 (1) as read with Section 24 (3) of the HIV Act that criminalizes HIV
transmission will not prevent further infections but will instead instill stigma
and the discrimination of persons living with HIV as they will be first branded
as criminals. The mischief of the section labels or tags any person living with
HIV as a potential criminal. This greatly undermines existing and future
efforts to deal with the epidemic, as those living with HIV will be reluctant to
seek treatment in case they are identified as potential criminals.

It was further argued that 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.
This it was submitted, may undermine public health initiatives by sending
mixed messages about sharing responsibility for safe sex and creating a
mistrust of public health agencies. Since HIV infection is associated with
sexual and drug related activities, disclosure can further expose HIV-positive
individuals to stigmatization, discrimination, and rejection by family, friends,
and the community.
The petitioner submitted that it would be in order to disclose information to a
sexual contact when the term is defined with more precision and when there
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is a clear risk of infection and that there is no justification for Parliament not
to impose a corresponding duty to keep such information confidential on third
parties to whom such information is disclosed.
It was the Petitioners case that the said provision violates Article 27(1) and
(4) of the Constitution which guarantees that every person is equal before
the law and has the right to equal protection and the benefit of the law.
1st Respondents arguments
The 1st Respondent, opposed the Petition on the grounds that the petition was
incompetent and a gross abuse of the courts process; that Section 22 and
24 of the HIV and AIDS Prevention and Control Act No. 14 of 2006 is not
vague, ambiguous and/or unconstitutional; that laws once published are
deemed to be sufficient notice; that the rights claimed are not absolute; that
there is no violation of the Constitution or the constitutional right of the
petitioner as disclosed, hence no justifiable cause; and that the substance of
the petition is an affront to the principle of separation of power embodied in
the Constitution.
The 1st Respondent submitted that in interpreting the import and extent of
the rights and fundamental freedoms, the Constitution should be read in
harmony and as a whole. In so doing, the Court was urged to be guided by
the intention of the citizens of Kenya, the people who ratified the
Constitution. The 1st Respondents further submitted that the rights and
freedoms as enshrined in the Constitution are not absolute but can be
derogated from only within the limits of the Constitution. It was therefore
contended that personal freedoms and rights must necessarily have limits,
and the interest of the Petitioners must be looked at vis--vis the interest of
the larger community. To the 1st Respondent, the Constitution provides a
framework for the limitation of various rights and fundamental freedoms
under Article 24 (1), (2) and (3). The 1st Respondent therefore contended
that in considering the constitutionality or otherwise of a statute the court
should be guided by the intentions of the legislature in enacting the statute
and ought to take judicial notice of the socio-economic conditions in Kenya
which informed the enactment of the legislation. The 1 st Respondent
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therefore submitted that Section 24 of the Act is in line with Articles 24, 35
and 43 and does not violate Articles 27, 31 and 50 of the Constitution as
averred by the Petitioner.
In regards to the terms sexual contact, it was the position of the 1 st
Respondent that where the statute does not define any word or term, the said
word should be given its ordinary meaning. The 1 st Respondent submitted
that since the Legislature is the only organ of government that is empowered
by the Constitution under Articles 94, 95 and 96 to make laws, in exercising
its powers under Articles 2(3) and 165 of the Constitution, the court should
take into consideration the principles of separation of power as envisaged in
the Constitution.
Interested Partys arguments
The Interested Party, a non-governmental organization advocating for the
rights of children submitted that Section 24 does not deal with infection per
se but simply obliges a person living with HIV to prevent the transmission of
the virus to others who are at risk of infection. It was their submission that
Section 24 addresses the non-disclosure of ones HIV positive status rather
than the actual infection and therefore if this provision is well enforced the
ability of persons living with HIV to enjoy their social and economic rights
would not be infringed upon.
It was the interested partys belief that a medical practitioner who is
responsible for the treatment of a HIV positive person may disclose the status
of such person to his / her sexual contact who is at risk of getting infected.
The Interested Party insisted that in the absence of Section 24 of the Act,
there would be a gap in the law to punish those who intentionally infect
others with HIV and the victims of such behavior, who include children and
infants, are entitled to recourse.
The Interested Party further argued that the court must make a distinction
between the horizontal transmission from an infected person to his or her
sexual partner and the vertical transmission from mother to child. The
Interested Party submitted that there is therefore need to place a legal
responsibility on mothers and other institutions mandated to protect their
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children because the act of a mother living with HIV breastfeeding her infant
can be criminalized by Section 24 (2) of the Act.
Amicus Curiae arguments
The amicus submitted that the Act contains several flawed provisions which
run counter to the legislations overall goal of protecting the rights of those
living with HIV and further propounds discrimination against them. It was the
amicus submission that the Acts broad criminalization of HIV exposure and
transmission raises serious questions in the context of vertical or mother-tochild transmission particularly when it is clear that women often lack the
information and services necessary to prevent HIV exposure or transmission
during pregnancy, delivery, or breastfeeding.
The amicus argued that allowing non-voluntary partner disclosure of HIV
status and criminalizing HIV exposure and transmission would further
compound violations which are already occurring around HIV testing of
women. It was further contended that allowing healthcare workers to disclose
a persons status to sexual partners without that persons consent can harm
women who are more likely to know their status and are at risk of violence
and discrimination by partners, family, and communities. It was further
submitted that the Act would be better aligned with its object and purpose of
ensuring non-discrimination, protecting rights and encouraging uptake of
services without the problematic provisions in Section 24.
Issues for determination
The central issue in dispute in this Petition was whether Section 24 of the
HIV and AIDS Prevention and Control Act (the Act) is vague and broad
and should therefore be declared unconstitutional.
The Judgment
In their judgment, the learned Judges held that Section 24 of the HIV Act is
vague, overbroad and lacks legal certainty particularly with respect to the
term sexual contact. The court held that there is a potential risk where
parliament did not attempt to define what they meant by sexual contact
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and that the same is dangerously left to the subjective views of the
prosecutor, the policeman or the court to determine its intention. It was
further contended that the term was vague because one might suppose that
it includes kissing, holding hands, exploratory sexual contact or penetrative
intercourse.
In its judgment, the court reaffirmed two principles of legality: that no one
should be punished under a law unless it is sufficiently clear and certain to
enable him to know what conduct is forbidden before he does it; and no one
should be punished for any act which was not clearly ascertainably
punishable when the act was done as espoused by Article 50 (2) of the
Constitution.
The court further held that Section 24 of the HIV Act contravened Article
31 of the Constitution of Kenya in regard to the right to privacy of a person
living with HIV who has disclosed their status to their sexual contacts; yet
there was no corresponding obligation in place on recipients of such sensitive
medical information to keep it confidential. Such unwarranted disclosure of
information was therefore held to be contrary to the right to privacy as
guaranteed by the Constitution and also confounds the situation by
prejudicing people living with HIV by exposing them to stigma, violence and
discrimination.
The court further recommended that the State Law Office review the HIV
Act with a view of avoiding future litigation surrounding the said legislation.
The meaning of the Judgment to HIV and AIDS actors
In order to demonstrate the actual meaning of the Judgment for HIV and AIDS
actors, it is important to examine the events after the Judgment. Firstly, the
case has attracted national, regional and international media attention. The
importance of this case for HIV and AIDS actors cannot therefore be
overemphasized.
Secondly, the decision effectively settles the debate concerning the
criminalization of the transmission of HIV finding against such reading and
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interpretation of the law especially when the prohibited conduct is uncertain

and overbroad.
Thirdly,

the

decision

effectively

underscores

the

critical

role

governments must play to prevent the disease whilst also protecting the
rights and freedoms of persons living with HIV and AIDS through effective
policies and laws that eliminate stigma and discrimination and advance the
rights of women and girls.
The Legal import of the Judgment
Legally speaking, this Judgment means that Section 24 of the HIV and
AIDS Prevention and Control Act No. 14 of 2006 has been declared
unconstitutional and cannot therefore be enforced for lack of legal certainty
as pertaining to the term sexual contact. Legal certainty is especially
required for criminal matters and demands that rules by which a citizen is to
be bound should be ascertainable by him/ her by reference to identifiable
sources that are publicly accessible.
Secondly, the judgment affirms that where a right or fundamental
freedom is to be limited, the same must satisfy the requirements as set in
Article 24 of the Constitution. It is therefore imperative that the duty to
disclose information, being a limitation to the right to privacy must strictly fall
within the confines of Article 24.
Way forward
While the Judgment marked a great victory for actors in the HIV and AIDS
sector, care should be taken to avoid complacency. In particular, the civil
society organizations involved in working around policy reforms should do the
following:
1. Engage the state law office in amending the HIV Act to protect persons living
with HIV & AIDS and to eliminate stigma and discrimination.
2. Review other existing laws on criminalization of the transmission of HIV with a
view to advocate for the decriminalization of the same and amendments to
further guarantee access to the highest attainable health care in line with the
Constitution.

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3. All medical health care personnel should be engage in the discourse of

confidentiality and the corresponding requirement not to disclose the HIV
status of their patients without their express consent.
4. All levels of government should focus HIV prevention and awareness on
people who do not have the knowledge or skills necessary to protect
themselves from HIV.

References:
1. High Court Constitutional Petition No. 97 of 2010.
2. The Constitution of Kenya, 2010
3. HIV and AIDS Prevention and Control Act of 2006
4. International Covenant on Civil and Political Rights (ICCPR)
5. International Covenant on Economic, Social and Cultural Rights (ICESR)

ALP
Attorney
General
D.P.P.

vs. January The Minister of State for Special

2011
Programmes in Legal Notice no. 180
and
published on 5th November 2010 that
the commencement date for the
operationalisation of Section 24 of the
HIV and AIDS Prevention and Control Act
would be 1st December 2010. Section 24
of the act discriminates against people
living with HIV and AIDS. It is also very
vague and excessively broad hence
7th
making it unconstitutional.
April
2011
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ALP was seeking for was an interlocutory

(temporary relief) stopping the operation
of section 24 of the HIV Prevention and
Control Act, which was commenced by
the Minister for Special Programmes on
the 1st of December 2010.

29th
Novemb
er 2011

Unfortunately, though the Judge found

that the petition raised "sufficiently
weighty issues for consideration by the
Court", and even proposed that it should
be heard by a bench of three judges, he
declined to grant the injunction and
directed that the main petition should be
heard on merits before the questions
raised are comprehensively determined.
The matter was sent to the Chief Justice
to appoint a bench of three judges to
hear the petition.

ALP is awaiting a hearing date for the

main petition. Meanwhile interested
parties and amicus have enjoined the
matter.
The matter was brought up for hearing
under certificate of urgency by the
Centre for Reproductive Rights (CRR)
wishing to be granted leave to be
enjoined in the proceedings as amicus
curiae. The learned judge ruled that the
applicant (CRR) be allowed to participate
as an amicus, the petitioner serve the
th
amicus with the petition within 7 days
27
January and a response within seven days.
2012
The matter is coming up for mention on
27th January 2012 before the presiding
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9th
April
2014.

25th
July
2014
31st
July
2014
9thOcto
ber
2014
18th
March
2015

judge of
directions.

the

division

for

further

Attended court for a mention. The matter

will come up for mention on 23rd May
2012.

The Interested party filed an application

withdrawing from the suit. The above
matter is scheduled to come up for a
mention on the 15th May 2014 for the
purposes of hearing that application.
The matter came before Hon. Justice
Lenaola for further directions.
The above matter is scheduled to come
up for a mention for purposes of fixing a
hearing date.

Hearing date: submissions

petitioner,
amicus
curie
respondent.

made by
and
the

Judgment: The three judge bench made a

ground breaking decision in regards to
the constitutionality of Section 24 of HIV
and AIDS Prevention and Control Act No.
14 of 2006.The court held that the
section as defined in the act is act is
vague, overbroad and lacking in legal
certainty particularly in respect to the
term
sexual
contact.
The
court
reaffirmed two principles of legality: that
no one should be punished under a law
unless it is sufficiently clear and certain
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to enable him to know what conduct is

forbidden before he does it; and no one
should be punished for any act which
was not clearly ascertainably punishable
when the act was done as espoused by
Article 50 (2) of the Constitution
The court further held that Section 24 of
the HIV and AIDS Prevention and Control
Act contravened Article 31 of the
Constitution of Kenya in regard to the
right to privacy of a person living with
HIV who has disclosed their status to
their sexual contacts; yet there was no
corresponding obligation in place on
recipients of such sensitive medical
information to keep it confidential.

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