Win for recruit as tribunal orders military to hire people with HIV

The young man thought he had landed his dream career with the Kenya Defence Forces (KDF).

But after only seven days as a recruit, he was kicked out of the KDF training school in Eldoret.

And now, his determination to fulfil his dream could see the military open doors for people turned away because of their medical conditions.

The young man told a tribunal that he was kicked out in the presence of other recruits and given Sh1,000 as fare home due to his HIV status.

Consequently, the HIV and Aids Tribunal has ordered KDF to update its rules for enlisting and recruitment, based on scientific developments in HIV treatment and management.

The Tribunal headed by Caroline Mboku gave the military 90 days to comply with the orders, and directed that it pays the complainant Sh1.05 million for discrimination and failure to seek his consent for the HIV test.

“Comparative legal study and jurisprudence show that due to significant advancements in the diagnosis, treatment, and prevention of Human Immunodeficiency Virus (HIV), the United States of America Secretary of Defence in June 2022 updated DoD policy concerning individuals who have been identified as HIV-positive,” the Tribunal observed.

In the case, the petitioner narrated that sometime in November 2021, while still serving at the National Youth Service (NYS), he applied to serve in the KDF. On November 24, 2021, he presented himself for an interview into the force and underwent a KDF enlistment medical examination at the NYS headquarters, which was a recruitment centre.

He lamented that among the tests conducted was HIV screening, but he was not offered HIV pre-test or post-test counselling. Nevertheless, he was among those who were successful in joining the disciplined forces from the youth service.

He said that he reported at the Eldoret School on Christmas day of 2021 as was required in the calling letter. On boxing day, he was subjected to further medical tests. Again, the KDF personnel did another HIV test.

The man said he stayed at the recruits’ training school until January 2, 2022, when he was informed in the presence of other recruits that his journey had ended.

He argued that he was humiliated by having his status disclosed publicly, and that the incident traumatised him to the extent he avoided going home.

A KDF record officer, a major, admitted that the complainant was among those who had been recruited.

He testified that although the recruit’s medical report, notice paper, certificate of recruiting officer, and attestation paper were similar to the calling letter issued by KDF to successful candidates, they were not from DoD since the recruitment officer collects them during the recruitment exercise due to their confidential nature.

He argued that there is a possibility the man was a victim of fraud. The military officer, however, admitted that during the background check, he did not call NYS to find out whether the man was recruited from there.

But the Tribunal overruled its argument after finding that it would only settle the dispute on HIV. The Tribunal noted that scientific advancements have been made in treatment with tremendous benefits to those infected with the virus.

Anti-retroviral treatment not only reduces death among people living with HIV, but also reduces frequency of illness and improves their quality of life. “We find that the Respondent’s act of releasing the Claimant from the Recruit Training School solely based on his HIV status is discriminatory and a violation under Section 31 of the HIV and AIDS Prevention and Control Act,” it ruled.

It awarded the petitioner Sh400,000 for KDF’s failure to have his consent. At the same time KDF was ordered to pay him Sh250,000 for not subjecting him to pre- and post-HIV testing counselling.

It was also directed to pay Sh400,000 for discrimination.