Partners need not reveal HIV status
What you need to know:
- In dismissing section 24 of the Act, High Court judges Isaac Lenaola, Mumbi Ngugi and George Odunga said it was illegal as it violates the principal of privacy that is enshrined in the Constitution.
- The AIDS Law Project argued that if a law is vague, or over-broad, it is not valid since a law must be clear enough to be understood, and precise enough that it only applies to activities connected to its purpose.
A court has ruled as unconstitutional a requirement that one reveal his or her status to a sexual contact under the HIV and AIDS Prevention and Control Act.
In dismissing section 24 of the Act, High Court judges Isaac Lenaola, Mumbi Ngugi and George Odunga said it was illegal as it violates the principal of privacy that is enshrined in the Constitution.
They were ruling in a case filed by the AIDS Law Project, an NGO that moved to court challenging the section that they said presented the risk of unwarranted disclosure of confidential information.
According to the Act, a person infected with HIV is required to reveal his or her status to their sexual contact and where the person fails to do so, a medical practitioner may disclose such information to the said sexual contact.
The HIV and AIDS Prevention and Control Act, No. 14 of 2006 came into effect on December 1, 2010 through Legal Notice No. 180 of 2010.
OVER-BROAD
The AIDS Law Project argued that if a law is vague, or over-broad, it is not valid since a law must be clear enough to be understood, and precise enough that it only applies to activities connected to its purpose.
The petitioner observed that the provision violates the Constitution, which guarantees every person equal status before the law and equal protection.
“To the petitioner, the law does not say what exactly is comprised in “sexual contact” and whether it includes kissing, holding hands, exploratory contact or penetrative intercourse thus leaving the issue to the subjective views of the trial court,” the judges said.
In the case the petitioner contended that whereas those living with HIV are required to disclose their status to “sexual contacts” the latter are not under any duty to keep such information confidential.
