Tribunal comes to the rescue of victims of HIV-related stigma

The HIV and Aids Tribunal (HAT) has awarded millions of shillings to claimants who have sued their spouses or hospitals for discrimination and illegal disclosure of Aids status.

The tribunal, which has received 348 cases between 2012 and last year, has also given directions on exceptional cases in which medical institutions can disclose a patient's HIV status to an insurer.

One of the cases involved a couple who had been living together for 12 years only for the woman to discover that she was HIV positive in 2010.

After revealing the status to her husband, he supported her for some time but later changed to the extent that he could not even share utensils or even sit for a meal when she was around.

The woman complained that he often deserted their matrimonial home.

The tribunal ruled in her favour and directed her husband to pay her Sh150,000.

The tribunal led by lawyer Jotham Arwa ruled that although the strain in marriage might not have necessarily been about the disease, it could not rule out the probability of the same happening, as they were discordant.

"Where there was sufficient evidence of its occurrence, the Tribunal would not hesitate to exercise its jurisdiction to remedy such a wrong," ruled the tribunal.

The man also got into trouble with the tribunal for disclosing his wife's status to his brother. It was ruled that his behaviour was uncalled-for.

"Unlawful disclosure of one's HIV status violated the right to privacy as it opened doors to invasion of one's autonomy of their personal space. The respondent's discussion and subsequent disclosure of the claimant's HIV status with his brother was uncalled-for and unlawful," it continued.

It added: "Just like discrimination, breach of confidentiality through unlawful disclosure created stigma, which had a negative impact on the fight against HIV and AIDS."

The Kenya Legal and Ethical Issues Network (KELIN) Executive Director Allan Maleche said although the country has made strides in efforts to reduce the level of infections over the past five years, the infected are still discriminated against.

According to Mr Maleche, the total new HIV infections in Kenya are estimated to have declined by about 15 per cent in the past five years; from 116,000 in 2009 to approximately 98,000 in 2013.

As at 2014, new infections were estimated to have stabilised at an average of 89,000 among adults and about 11,000 among children annually. In 2015, the demographics indicate those living with the virus were 268,586.

"While the country has experienced significant declines in new HIV infections, stigma and discrimination persist in many parts, including in work sectors. Also, punitive laws continue to deter those at the highest risk from seeking HIV and healthcare services," said Maleche.

He said since the first case was reported, the disease has raised new and complex legal and human rights issues; protecting those infected and at the same time, curbing reckless spread of the disease.

In a separate case, Karen Hospital was directed to pay Sh2.5 million for testing a patient and disclosing her information to her insurance firm.

The woman visited the hospital seeking treatment for severe diarrhoea but she was subjected to a HIV test without her consent. She tested positive.

The tribunal was told that the patient came to learn that the doctor attending to her had informed her insurance company about the results. She complained that she was not offered pretest and post-test counselling.

In rebuttal, the hospital told the tribunal that it had conducted itself in a professional manner. It claimed that before and after admission of the claimant, several tests were carried out on her and among them was HIV testing, which complied with the national guidelines for HIV testing and counselling in Kenya.

But the tribunal found that the hospital had breached the law.