Call to repeal laws against people who infect others for discouraging HIV test

Laws that criminalise infecting sex partners with Aids are discouraging people from going for HIV tests, a symposium in Nairobi heard.

The inaugural national symposium on HIV, Law and Human Rights opened on Tuesday in Nairobi with calls on the Government to repeal the law which criminalises infecting a person who did not have the virus.

HIV Equity Tribunal chairman Ambrose Rachier termed the Aids Control Act (Section 24) “counter-productive”, saying it will make people shun HIV testing.

“The law should be expurged, since it criminalises anybody ... infects another person...,” Mr Rachier, also a prominent Nairobi lawyer, said.

According to the law, Mr Rachier said those who wilfully infected others with HIV faced “stiff penalties” of up to seven years in jail.

The tribunal was established under the HIV and Aids Prevention Control Act to deal with complaints revolving around discrimination based on HIV status. Mr Rachier said his tribunal had so far received 16 cases, out of which six had been settled while the rest were ongoing.

“A majority of the cases the tribunal is hearing are work-related,” the chairman said.

The two-day meeting, whose theme is “Promote, Protect and Fulfil Human Rights” assembles about 300 participants drawn from the private and public sectors, and is taking place at Crowne Plaza Hotel in Nairobi.

They include lawyers, doctors, people living with Aids and civil society officials.

Speaking during the opening of the symposium, Special Programmes minister Esther Murugi said Kenya was ranked fourth among countries with the highest number of people living with HIV and Aids —1.5 million — after South Africa (5.6 million), Nigeria (3.3 million) and India (2.6 million).

“HIV flourishes in environments where human rights are abused... Infection with HIV on the other hand, has attracted one of the highest levels of stigma ever witnessed in respect of any infectious disease and this has in turn led to human rights abuses of those infected and affected at all levels, including the family, community, workplace, healthcare facilities, education sector, insurance sector and within religious organisations, among others.”

In a speech read by Permanent Secretary Andrew Monda, the minister said the symposium’s theme was a “wake-up call” to all of us to develop a road map for human rights in HIV and Aids while working towards a society free from any form of human rights violation in relation to HIV.

The United Nations Development Programme country director Maria-Threase Keating, while highlighting the Global Commission on HIV and the Law report, said that in more than 60 countries — including Kenya — it was a crime to expose another person to or transmit HIV.

“These laws and practises discourage people from seeking HIV test and disclosing their status.”

Ms Keating added: “Laws and policies that deny young people access to sex education and reproductive and HIV services only serve to help spread Aids...

“At the same time, excessive intellectual property protection that hinder the production of low-cost medicines, especially second-generation treatments, impede access to treatment and prevention.”

She said that where the police cooperated with community workers, condom use increased and violence and HIV infection among sex workers decreased.

“Ultimately, effective legal aid can make justice and equality a reality for people living with HIV, and this could contribute to better health outcomes,” Ms Keating added.

Compromising former heads of state and leading legal, human rights and HIV experts, the commission’s aim is to increase the understanding of the impact of the legal environment on national HIV responses. It further aims at focusing on how laws and law enforcement can support, rather than block, effective HIV response.

In Kenya, the commission is represented by Prof Miriam Were, the former chairperson of the National Aids Control Council.
To ensure an effective, sustainable response to HIV that is consistent with human rights obligations, Ms Keating said the commission calls for Governments, civil society and international bodies to outlaw all forms of discrimination and violence directed against those who are vulnerable to, or living with HIV.

“They should also repeal punitive laws and enact laws that facilitate and enable effective responses to HIV prevention, care and treatment services for all those who need them...

“They should also work with guardians of customary and religious law to promote traditions and religious practice and acceptance of diversity.”

Ms Keating said they should also abolish mandatory HIV-related registration, testing and forced treatment regimens. Access to sexual and reproductive health services, stopping forced abortion as well as ending coerced sterilization of HIV positive women should be encouraged.

“They should also enforce a legal framework that ensures social protection for children living with and affected by HIV and Aids...

“Laws must protect guardianship, property and inheritance rights and access to age-appropriate comprehensive sex education, health and reproductive services.”

Ms Keating added: “The law alone cannot stop Aids... Nor can the law alone be blamed when HIV responses are inadequate.
“However, the legal environment can play a powerful role in the well-being of people living with HIV and those vulnerable to HIV. Good laws, fully resourced and rigorously enforced, can widen access to prevention and health care services, improve the quality of treatment, enhance social support and protect human rights..”

The government wants all HIV-positive expectant women given priority access to anti-retroviral drugs to avert infections in infants. This is part of a new campaign that is ultimately aimed at wiping out Aids in the country.

On Tuesday, Medical Services minister Prof Anyang Nyongo said his ministry had declared an all-out war against Aids.

“It is possible to turn the tide against this epidemic,” said Prof Nyong’o in a speech read on his behalf by Dr Francis Kimani, the Director of Medical Services.

The forum also witnessed the launch of a declaration, requiring all Kenyans to pursue all efforts to end the epidemic that last year claimed the lives of at least 62,000 people.

According to government statistics, new HIV infections among children last year stood at 13,000 as opposed to 91,000 among adults.

HIV is still a big challenge in Kenya several years down the line. It is apparent now that the fight against the disease must be multifaceted and comprehensive, said the minister.

In the declaration, the government wants all Kenyans to know their HIV status to enable them receive the treatment and care they require and that access to anti-retroviral treatment be expanded.

It also wants an end to stigma, discrimination and human rights abuses against people living with HIV and those at risk.

Those with Tuberculosis, it adds, should be immediately treated.