Aids Control Act ‘a mere shell’
By COLLINS OMONDI
Monday, March 30 2009 at 19:16
Daily Nation

In Summary

• Special Programmes minister has left out some key provisions of the Act which are at the core of fighting stigma
• Lack of consent for testing for HIV and unlawful disclosure of HIV test results fuels stigma and discrimination.

MONDAY WAS THE commencement date for the HIV and Aids Prevention and Control Act 2006.

It is, however, disappointing that the Special Programmes minister has left out some key provisions of the Act which are at the core of fighting stigma and protecting the human rights of people living with Aids.

There is absolutely no justification for subjecting sections 14, 18 and 22 relating to consent for HIV testing and confidentiality of HIV test results to delays.

Undeniably, there exists inextricable links between stigma and discrimination against people living with Aids and violations of privacy and confidentiality to which these sections relate.

Lack of consent for testing for HIV and unlawful disclosure of HIV test results fuels stigma and discrimination. This leads to social and economic suffering for those affected.

Also, the explicit requirement under section 39 to conform to the legal framework governing the conduct of biomedical research does not apply, at least for the time being, though researchers have frequently been blamed for violating rights of people with Aids.

The non-implementation of these sections robs the Act of its raison d’être and jeopardises the effectiveness of provisions on privacy and confidentiality and non-discrimination thus exposing these people to the risk of continued violation of their rights.

It also creates the impression that certain requirements as to consent for testing and confidentiality and biomedical research do not apply as a matter of law for the time being, leading to legal uncertainty and confusion.

As it is, the Act is a mere shell. Needless to say, these sections were not as controversial as certain sections which have been implemented such as section 24 on criminalisation of wilful HIV infection.

Further, assuming there exists issues of concern under certain sections, say consent for HIV testing by “mature minors”, such issues are not so fatal that they should rob the Act of its raison d’être.

Such inevitable issues in any law-making process are easily addressed through amendments in Parliament, as this is the only institution with the legal mandate to change that which it passed into law, or through regulations made pursuant to the Act.

The minister’s action, although it may be guided by a genuine desire to address certain concerns, is wholly ill-advised and is not supported by reasons the government has been giving for the inordinate delay in implementing the Act.

For instance, the 2008 Kenya Country Progress Report to the United Nations General Assembly Session on HIV and Aids cited the need for amendments to the Act to include marginalised groups and other emerging issues.

To what extent the non-implementation of these sections is affected by these concerns remains unclear.

Going by the history of the Act, one can only pray that these provisions are brought into force immediately and that whatever issues that led to the sections being put in abeyance are addressed.

Mr Omondi, a lawyer, is the HIV and human rights project coordinator at the Children’s Legal Action Network (CLAN).