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February 16, 2019

Impractical laws Vs HIV transmission

Visualize a scenario where you find out that your loving partner of five years has infected you with HIV/AIDS… imagine again that this person who you love knows about their status and “somehow forgot” or “deliberately refused”  to tell you they have put you in a position to contract the virus.

Worse still, imagine the poor children who are defiled everyday by people who are infected by this disease. What does the law say about these vile situations?

Section 24 of the HIV and AIDS Prevention Control Act, 2006, states that a person commits an offence of transmitting the HIV virus if they:

  1. Carry the HIV virus
  2. Are aware that they are infected with the virus
  3. Fail to take reasonable precautions to prevent transmission to others
  4. Fail to inform a sexual contact or person they shared a needle with of the fact
  5. Recklessly place another person at risk of becoming infected

If convicted, the penalty for someone transmitting this deadly virus to you is a fine not exceeding five hundred thousand Kenyan shillings or imprisonment for a term not exceeding seven years, or both fine and imprisonment.

Other than the absurdity of this penalty, let us focus on the difficult task of proving that your partner knowingly infected you with HIV. What if he claims that you are in fact the one who infected him/her with the virus. Is there a way to prove the exact moment of transmission? And who contracted it first? What if your partner denies any knowledge of their status? The loopholes are endless.

In England and Wales, complex scientific tests known as ‘phylogenetic analysis’ are always done in such scenarios to compare the viruses of both parties. If the two viruses appear to be different, this proves that there was no HIV transmission between the two people, and so no crime.

If the viruses appear to be similar, HIV transmission from one party to another may have occurred, but it does not prove it.

The other issue is how can you prove that your partner knew that they had the virus? A person’s status is confidential information. The HIV and AIDS Prevention Control Act makes it an offence to reveal the HIV result of any person.

Moreover, Article 31 of the Constitution provides that every person has the right to privacy which includes the right not to have information relating to one’s family or private affairs unnecessarily required or revealed or the privacy of their communications infringed.

Where parties admit that they intentionally spread the virus, it becomes easy to take any necessary action against them. It therefore depends on the good will of such people to admit, something that is though, very rare. Even where a party admits, is Section 24 above the best solution the state should take? What about the victims?

HIV/AIDS is a deadly disease and all efforts are geared towards minimizing its transmission.

However, it is with us and for those who have contracted it, am very sure it was not upon their wish to contract it. For someone to reach up to the point of admitting, it means they have been going through a lot of psychological torture, inter alia, so much that admitting is a way of relieving themselves.

Thinking about fining such persons five hundred thousand Kenyan shillings or sending them to jail for seven years, will the state be enhancing the right to health provided for under Article 43 which boils down to the right to life under Article 26 of our beloved Constitution? The state can only enforce its positive duty to ensure health care services are readily available for our brothers and sisters who have contracted the virus. 

Yes it is difficult for the victims to take and live with it where a party knowing and intentionally transmitted the virus. Such malicious people ought to be punished so as to deter them from transmitting the virus.

But the question begs are such people going to reform? We have hardcore criminals who have become used to making our prisons their homes so much that they will commit crimes so as to go back in prison after being released.

Worse still, even in prisons, such people require special care and attention because they are HIV positive but are entitled to the right to good health under Article 43 of the Constitution.

Victims will be very relieved to see that people who confessed to have transmitted the virus to them are either jailed or fined and the story ends. Suing for compensation may be an option but imagine that person without anything to call their property.

Any order then for compensation becomes hollow as it cannot be enforced – big challenge indeed.

Section 24 above is simply impractical to enforce, does not address the plight of the victims and their relatives, establishing the point of transmission may be a tall order and generally proving beyond reasonable doubt is likely to be a big challenge for the prosecution/state.

The way forward should be the most important concern for the victims because after all people living with the virus, live happy long lives like any other person.

In my village for instance, a husband at death bed confessed transmitting the virus to his wife. The wife during the burial ceremony declared herself HIV positive and has been a peer educator on how to live with it.

She has been a widow and living positively for the last twenty five years. She has educated her children single handedly and the last born is currently in Australia.

Those living positive, be positive and always think positive. Consult medical practitioners and take medicine and other food as prescribed. Where the state, ministry concerned or any person responsible is violating your right to health, speak out and hopefully there will be someone to help.       

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