Penalty for knowingly infecting someone with HIV in Kenya

The presentation of HIV in Kenya over three decades ago was directed more to promiscuity than viral infection hence the fear of disclosure.

Over the years, people living with HIV have been heavily stigmatised and discriminated against such that it is very difficult for anyone to reveal their HIV sero-positive status for fear of judgment, stigma or discrimination.

While disclosure is voluntary, the Kenya law, according to Section 14 of the HIV and AIDS Control Act, stipulates that a person living with HIV who knowingly and recklessly places another person at risk of becoming HIV infected commits an offense which upon conviction can attract a penalty not exceeding Sh500,000 or imprisonment for a term not exceeding 10 years or both.

However in 2010, the Kenya High court ruled against section 24 of the HIV/AIDS Act which criminalised the transmission of HIV in a case filed by Aids Law project, an organisation that partners with the University of Nairobi to provide free legal services, stating that the section was unconstitutional and violated the rights to confidentiality and privacy of persons living with HIV.

In their support to the Aids Law Project, The Centre of Reproductive Rights filed a brief stating that the law had discriminated against women who were subjected to uninformed disclosure especially during pregnancy.

Evelyn Opondo the Africa Regional Director at The Centre of Reproductive Rights lauded the ruling and said that the law had inflicted fear, shame and punishment to hundreds of Kenyans.

The law notwithstanding, HIV experts have shown that disclosure is a key tool for prevention of new infections. Though it may have negative effects on the infected person such as stigma and discrimination, it has positive effects like enabling loved ones to support the infected person.

The Kenya Aids Progress Report 2016 cited stigma and discrimination as the main barrier to achieving the targeted intervention of reducing new infections in the HIV response.

The report showed that HIV disclosure is particularly crucial as a measure to new HIV infections. This is because, when a partner discloses their status, both partners work collectively to prevent new infection especially to unborn babies.

Other reports have shown that couple counselling is an important tool to enhance disclosure between the two partners.