Kenya

Kenya has had a number of laws relating to HIV transmission, ‘exposure’, and non-disclosure, and there has been an ongoing tussle between the government and advocates working through the courts to challenge those laws for more than a decade.

The HIV & AIDS Prevention and Control Act (2006), based on the highly problematic AWARE-HIV/AIDS Model Law (also known as the N’Djamena Model Law), was intended to provide for the protection and promotion of public health and for the appropriate treatment, counselling, support and care of persons infected with, or at risk of, HIV. Unfortunately, it included a section (24) criminalising people living with HIV. The overly broad provision stated that people living with HIV must take all reasonable measures and precautions to prevent HIV transmission and must disclose their HIV-positive status before sexual contact or sharing needles. The Act stated that a person living with HIV must not knowingly or recklessly place another person at risk of HIV, although it allows a defence if the other party consented to the risk. The provision carried a penalty of up to 500,000 shillings and/or up to seven years’ imprisonment.

The section was highly problematic per se but particularly problematic given its overly broad terms, notably, that a person must take all reasonable measures and precautions (rather than just reasonable measures) and must disclose before any sexual contact (despite HIV not being transmissible in many such instances). AIDS Law Project took the matter to the High Court, and in 2015 were rewarded with a judgement in Aids Law Project v Attorney General and Others [2015], in which the High Court of Kenya declared section 24 of the HIV and AIDS Prevention and Control Act unconstitutional. The High Court ruling focused on the absence of a definition of ‘sexual contact’, holding that it is impossible to determine what acts were prohibited. It also found the provision does not meet the standards for a justifiable limitation of the constitutional right to privacy. The law was suspended.

The current Sexual Offences Act, introduced in 2008, also includes sections on disease transmission which specifically name HIV ‘and other life threatening sexually transmitted disease(s)’. Section 26(1) makes it illegal for a person who knows they have HIV to ‘intentionally, knowingly and wilfully do anything or permit anything to be done which they should reasonably know will or is likely to transmit HIV’. The section, erroneously titled ‘deliberate transmission of HIV or any other life threatening sexually transmitted disease’, criminalises both alleged transmission (section 26(1)(a)) and ‘exposure’ (section 26(1)(b)), meaning that criminalisation can be triggered without any evidence of HIV being transmitted or intent to transmit. The law states that it applies whether or not the parties were married. Further, the law states under section 26(10) that if a person tests positive for HIV at the time of their trial, they will be presumed to have been HIV-positive at the time of the offence, unless able to prove otherwise. This provision carries a severe penalty starting at 15 years’, and up to life imprisonment.

Section 26 of the Sexual Offences Act has been used in number of recent arrests and unjust prosecutions for biting (March 2018), spitting (October 2023), breastfeeding (September 2018, March 2019 and March 2020), and alleged non-disclosure (December 2018). These cases were brought despite major issues relating to evidence and risk of transmission. In another case from 2016, the first known case, it is unclear which law was applied, though this may have been a civil claim as it resulted only in an order of damages.

In December 2018, KELIN supported five people living with HIV to file a petition asking the High Court in Nairobi to strike down Section 26 of the Sexual Offences Act as unconstitutional as it discriminates against people living with HIV, women, and poor people, and violates a number of fundamental human rights. KELIN’s press release argued that the section had effectively made it a crime for women with HIV “to birth and raise children. The prevailing interpretation also effectively criminalises marriage between a person who has HIV and a person who does not.” In January 2020, the court admitted HIV Justice Worldwide and UNAIDS as ‘friends of the court’, allowing them to present evidence. The Court also joined the National AIDS Control Council. In July 2020, the Court gave the Attorney General and the Director of Public Prosecutions 30 days to file their responses, with the Petition to be heard on 4 January 2021. In December 2022, the High Court dismissed the case on the basis that the petitioners had not reached the threshold to have the section declared unconstitutional, and that section 26 did not refer to all people living with HIV, only those who deliberately and knowingly transmit HIV. Announcing their intention to appeal, the petitioners also expressed their view that the Court acknowledged that the law should only be applied where three elements are present:

• • First, the perpetrator must act intentionally and with a specific intention to infect another person;
  • Second, the perpetrator must have actual knowledge of their HIV status; and
  • Third, the prosecution must prove that the perpetrator actually infected the other person with HIV.

Civil society meanwhile continues to advocate for repeal of section 26. In a statement issued in March 2023, a network of eight Kenyan civil society organisations, including HIV organisations, reiterated the case against the provision, arguing that criminalisation fails to prevent HIV transmission. Furthermore, the network stated that the law in Kenya disproportionately targets women as they are usually first to discover their HIV positivity when receiving care during pregnancy, leaving them vulnerable to prosecution by the state which assumes that they were the source of HIV in the relationship and put their partner at ‘risk of transmission’. Additionally, the law fails to account for transmission risk, and several women have been prosecuted for breastfeeding, despite international guidance establishing that breastfeeding is safe for people on effective treatment.

While advocacy is ongoing since this court case was dismissed, criminal prosecutions continue to be brought under the law. A case in 2023 demonstrates how the law is being used in cases involving zero transmission risks; in this case, a woman working as house-help was arrested after being seen on CCTV footage allegedly spitting on her employers’ food. The woman was charged despite there being no possibility of HIV transmission through this means. In February 2024, a man living with HIV was arrested and charged under section 26(1)(b) for alleged HIV ‘exposure’ to a sexual partner. There is no suggestion that HIV was transmitted.

The Sexual Offences Act also includes a provision (section 43) which outlines that acts are considered intentional and unlawful where committed under false pretences or by fraudulent means, which explicitly includes intentionally failing to disclose that the person is living with HIV or another ‘life-threatening sexually transmissible disease’. This section can be applied in cases of sexual assault, including rape, essentially requiring disclosure of HIV status prior to (penetrative) sex. The law does not require transmission or provide a defence in relation to risk of transmission including use of a condom or having a low viral load, or consent of another party.

Kenya’s Penal Code also contains a provision that could be used for HIV criminalisation, making it a criminal offence for a person to unlawfully or negligently undertake any act which s/he knows or has reason to believe is likely to spread a disease dangerous to life (section 186). We are not aware of any prosecutions using this provision.