Part 1

The Constitution, 2010, brought many changes to the 3 arms of Government. With respect to the Judiciary, the Constitution introduced the Supreme Court, the Environment and Land Court as well as the Employment and Labor Relations Court. Additionally, the Constitution provides that tribunals now form part of the Judiciary as subordinate courts.

One such tribunal is the HIV and AIDS Tribunal, which is established under Section 25 of the HIV and AIDS Prevention and Control Act, 2006 (HAPCA). This Tribunal is the only HIV-specific statutory body in the world. Its jurisdiction is to hear and determine complaints arising out of any breach of the provisions of HAPCA, to hear and determine any matter of appeal as may be made as per the provisions of HAPCA and to perform other functions conferred upon it by HAPCA and any other written law.

The Tribunal began hearing cases in 2012, 6 years after the Act was passed. Over the years, it has made great strides in the protection and advancement of HIV-related rights. Being a tribunal, it enjoys a unique set up, different from that of ordinary courts. It is this uniqueness that allows the Tribunal to address various barriers that impede access to justice by persons facing HIV-related stigma, as well as those who have their rights violated due to their real or perceived HIV status.

The Tribunal is a quasi-judicial body. This means that although it performs judicial functions like hearing and determining cases, these judicial functions are performed by persons who are not judges or magistrates. Furthermore, the functions are conducted in a manner that is not as strict as would be the case in an ordinary court. The Tribunal comprises of a Chairperson, two Advocates of the High Court of Kenya, two medical practitioners and two persons having such specialized skills or knowledge necessary for the discharge of the functions of the Tribunal.

To understand what matters can fall for determination before the Tribunal, one then has to understand the provisions of HAPCA and what constitutes a breach of these provisions.

The Act prohibits conducting compulsory HIV tests on persons. This means that no person ought to be compelled or forced to undergo HIV testing. In fact, the Act goes further to state that no person should be compelled to undergo HIV testing in order to enjoy employment, marriage, admission to any educational institution, entry into or travel out of the country, or provision of healthcare, insurance cover or any other service. However, the Act gives the exception of a person who has been charged with an offence under the Sexual Offences Act. Such an accused person can be subjected to compulsory HIV testing.

If an individual cannot be forced to undergo an HIV test, it then follows that an individual must give his or her consent before being tested for HIV. This is stated at section 14 of the Act, which indicates that an individual must not only give consent before being tested, but also that the consent must be informed. This means that the individual must be provided with the full information concerning the risks involved, the possible consequences and the alternatives available. At section 2, the Act states that consent is valid if given without any force, fraud or threat and with the full knowledge and understanding of the medical and social consequences.

The Act goes further to give instances where the consent of the individual may be dispensed with. For instance, in the case of a person who is incapable of giving consent due to some disability, then the Act allows the healthcare provider to get consent from the guardian, parent, partner or adult offspring of that person. Where the person being tested is unconscious and unable to give consent, and the medical practitioner reasonably believes that the test is clinically necessary for treatment of the person, then the medical practitioner may undertake the test without the consent of the person.

In the case that the person being tested is a child, the Act provides that the parent or legal guardian of the child must give written consent. However, in cases where the child is pregnant, married, a parent or is engaged in behavior which puts him or her at risk of contracting HIV, (popularly known as ‘mature minors’) the child may give direct consent to an HIV test. This consent must be given in writing.

Before conducting an HIV test, the testing Centre must provide pre-test counselling, as well as post testing counselling, to the person undergoing the HIV test and any other person who is likely to be affected by the results of such a test. It is also a legal requirement that the person conducting the counselling must be one who has been approved by the Cabinet Secretary.

Once the test is conducted, the results are confidential and can only be released to the person tested, or in the case of children, to their parents or legal guardians. However, where the child is a ‘mature minor’ and had given direct consent to the test, then the results can be released directly to that child. Similarly, if a medical practitioner assesses an adult as being incapable of understanding the results, then the results can be released to the guardian, parent, partner or adult offspring.

The issue of confidentiality of results and records is fundamental to the fight against the spread of HIV and HIV-related stigma, and is one that HAPCA has addressed extensively. At section 22, it is provided that no person shall disclose any information concerning the result of an HIV test or any related assessments to any other person except with the written consent of that person. This means that unless the person tested specifically gives consent, which must be in writing, that the results be disclosed to a third party, then those results cannot be disclosed to anyone, whether the results are positive or negative. It is only in exceptional circumstances that results can be disclosed to another person without the consent of the person tested. These include where the person tested is a child, where the medical practitioner would seek the consent of the parent or legal guardian in order to disclose the results. In the case of a person incapable of giving consent, then the medical practitioner would seek the consent of the guardian, parent, partner or adult offspring.

The Act also caters for instances where the person tested is illiterate and cannot give written consent. In this case, their oral consent would suffice. In instances where the person tested has since passed on, then the consent of their legal representative, administrator or executor would be sufficient.

In conclusion, it is important to note that the Preamble to The Constitution, 2010 commits all persons to nurturing and protecting the well-being of the individual, the family, communities and the nation. This commitment is reiterated in the object and purpose of HAPCA which include extending to every person suspected or known to be infected with HIV and AIDS the full protection of his or her human rights and civil liberties. This object is at the Centre of the Tribunal’s mandate and a fundamental factor to the discharge of its duties.

Helene Namisi

Chair, HIV & AIDS Tribunal

August 2021

Helene Namisi is an Advocate,  practising as Namisi & Company Advocates, and has over 17 years experience in legal practice. She is the Chairperson of the HIV & AIDS Tribunal, the only statutory body of its kind in the world. Prior to being the Chairperson, Helene was a member of the Tribunal from 2017 to 2019.

Ms. Namisi is the Vice Chair of the Law Society of Kenya, Nairobi Branch, a qualified company secretary (CS), Mediator and Arbitrator. She is also a trainer in Trial Advocacy and board member of the Justice Advocacy Africa and Trial Advocacy Training Institute.

Over the 17 years, Ms. Namisi has worked in various public and private institutions including the Constitution of Kenya Review Commission, the Commonwealth Youth Program (UK), Superior Homes Ltd and the Kenya School of Law. She has a keen interest in legal aid as well as legal clinics, and she offers pro bono legal services and training to several non-governmental and legal aid organisations in Kenya.  In 2015, Ms. Namisi was awarded the Pro Bono Lawyer of the Year by the Law Society of Kenya and Amnesty International.

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