Court declines to scrap law on spread of HIV

A lobby group has lost the first round in a case challenging the law criminalising deliberate transmission of HIV.

This follows the decision by High Court judge Justice Daniel Musinga declining to suspend the law.

This means those who deliberately infect others with the virus will be prosecuted. The judge said the interest of the wider public has to prevail.

“Having weighed the competing interest of those infected with HIV and that of wider public, the latter ought to prevail. I decline to grant an order to suspend the law on Aids,” ruled Justice Musinga.

He said the risk of granting an order suspending the law, which is already operational is that in the event the lobby loses its case, then the prejudice to the public might not be reversible.

On the other hand, the judge said it can be argued that if the court declines to grant the temporary order and the case succeeds, then the rights of those infected with HIV would have been violated.

However, in such cases challenging an already operational law, the judge said, it is important that the case be heard to the final stage.

The judge also noted that so far, the court has not seen any individual who has been a victim of the law complained of.

His ruling arose out of a case filed by the Aids Law Project seeking scrapping of section 24 of the HIV and Aids Prevention and Control Act deleted, saying it puts the liberty of people infected with the virus in jeopardy.

The organisation cites a poor HIV-positive mother who has to breast feed her child because she cannot afford baby food.

HIV-positive mothers risk infecting their newborn babies with the virus if they breast feed them. This woman, according to the organisation, would be liable for a Sh500,000 fine or imprisonment for up to seven years.

On Thursday, Justice Musinga said the matter raises weighty issues, which need a three-judge bench. The case will be mentioned on June 6.