Академический Документы
Профессиональный Документы
Культура Документы
DISCRIMINATION OR STIGMATIZATION?
A.
1
The Constitution prohibits the making of any law, which shall make
any provision that is discriminatory either of itself or in its effect. This
rule has the following three qualifications or exceptions. It is provided
that a law may be discriminatory so far as that law makes provision:-
2
‘affording different treatment to different persons attributable
wholly or mainly to their respective descriptions by race, tribe,
place of origin or residence or other local connection, political
opinions, colour, creed or sex whereby persons of one such
description are subjected to disabilities or restrictions to which
persons of another such description are not made subject or
are accorded privileges or advantages which are not accorded
to persons of another such description’.
3
In the Homepark Caterers Ltd case, the Plaintiff’s termination from
employment was grounded on the medical report, which the Plaintiff
claimed to have been done without her consent and the disclosure
(again without her consent) of her HIV status.
The thrust of the employer’s defence was that the real reason for the
termination was prolonged absenteeism on medical grounds.
Sections 3 (b) (iii) of the HIV and AIDS Prevention and Control Bill,
2006 proposes to enact as amongst the objects and purpose of the
Act, that the Act shall extend to every person suspected or known to
be infected with HIV and AIDS, full protection of his human rights and
civil liberties by outlawing discrimination in all its forms and subtleties
against persons with or persons perceived or suspected of having HIV
and AIDS.
Part VIII of the 2006 Bill provides for protection from discriminatory
Acts and Policies and provides for protection from:-
4
b. Transferred, denied promotion or have his employment
terminated on the grounds only of his actual perceived or
suspected HIV status.
5
What does it portend to the future of the family and the core
values for which it exists vis a vis this Bill?
6
Sections 36 (6) provides that a person aggrieved by a determination
of the Commissioner of Insurance may appeal within thirty days to the
Equity Tribunal and the decision of the Tribunal shall be final.
7
At the hearing of the appeal, the Appellant took issue with the
allegation by the prosecution that he had been tested and found to
be H.I.V positive and therefore infected the complainant with the
AIDS virus.
He submitted that no evidence was adduced by the prosecution to
establish that indeed he had infected the complainant with AIDS
virus and reiterated that the complainant was his girlfriend and
stated further that the trial magistrate had failed to consider his
evidence on the said effect.
‘evidence was adduced that the appellant was tested and found
to be HIV positive. The appellant defiled the complainant in
the full knowledge that there was a possibility that he could
infect her with the said AIDS virus. Although the prosecution
did not establish that the appellant had indeed infected the
complainant with the AIDS virus, this court cannot ignore the
fact that the appellant was armed with a lethal weapon which
weapon he used to potentially inflict a fatal injury on an
innocent girl child.
The appellant wants this court to ignore all these facts and
exercise mercy on him. I think it would be travesty of justice if
this court were to release the appellant to the society so that
he could prey on other innocent and vulnerable young girls. I
will not grant him his wish (sic). He should remain where he is
8
for the rest of his life. The appellant should not be given
another opportunity to cause misery to innocent young girls. I
decline to review the life imprisonment imposed by the trial
magistrate. His appeal on sentence is therefore dismissed. He
shall serve the sentence imposed by the trial magistrate’
a. will infect another person with HIV or any other life threatening
sexually transmitted disease;
9
Presumptions of fact underpinning protection from deliberate
transmission of HIV or any other life threatening sexually
transmitted disease.
It is provided that:-
(i) Not withstanding the provisions of any other written law, where
a person is charged with the office of deliberate transmission of
HIV or any other life threatening Sexually transmitted disease,
the court may direct that an appropriate sample or samples be
taken from the accused at such place not object to such
conditions as the court may direct for the purpose of
ascertaining whether or not he or she is infected with HIV or any
other life threatening sexually transmitted disease.
(ii) the sample or samples taken from the accused person shall be
stored at an appropriate place until finalization of the trial.
(iii) the court shall where the accused person is convicted order that
the sample or samples be tested for HIV or any other life
threatening sexually transmitted disease and where the accused
10
person is acquitted order that the sample or samples be
destroyed.
a. the state;
b. any minister; or
11
2.4 The HIV and AIDS Prevention and Control Bill, 2006
and transmission of HIV; Supplementing The Sexual
Offences Act No. 3 of 2006.
Part VI of the HIV and AIDS Prevention and Control Bill 2006
provides for prevention of transmission of HIV thereby
supplementing the provisions of section 26 of the Sexual Offences
Act.
12
(i) taken all reasonable measures and precautions to
prevent transmission of HIV to others
may inform any sexual contact of that person of the HIV status of that
person.
13
litigation in Lucy Ndegi v James Kibe, Nairobi HCCC No. 860 of
2003).
In the Ndegi case the Plaintiff proved that the Defendant had
denounced her as a prostitute which she understood to mean that she
was of loose sexual morals and then the Plaintiff told her that she had
slimmed from her originally larger bodily appearance, she understood
it to mean that she was a victim of HIV/AIDS infection which had
cause her to slim down.
The Plaintiff proved that she had to close down her sales business, as
potential customers would say they do not want to buy goods and
supplies from an AIDS patient. She further testified that since she
incurred major business losses in the aftermath of the slander by the
Defendant she has not been able to bond very well with her husband
in the domestic arena.
The Court took the position this Ndegi case was one in which undue
harm had been caused to a peace loving citizen in character and with
serious implications for her normal and economic life. The harm had
been caused through flagrant defamation mindlessly or even recklessly
perpetuated.
Part V of the HIV and AIDS Prevention and Control Bill, 2006 deals
with confidentiality between a healthcare provider and patient but
takes note of the grave situations posed by the danger of transmitting
HIV and AIDS to innocent people. It embodies the circumstances
14
under which the result of an HIV test or any related assessments may
be disclosed to a third party without incurring any legal liability.
b) if that person has died, with the written consent of that person’s
partner, personal representative, administrator or executor.
15
e) If in the opinion of the Medical Practitioner, who undertook the
HIV test, that person has a disability by reason of which the
person appears incapable of giving consent with the written
consent, (in order of: (i) a legal guardian of that person, (ii) a
partner of that person, (iii) a parent of that person, or (iv) an
adult offspring of that person.
Under the Matrimonial Causes Act Cap 152 and the Subordinate Courts
(Separation and Maintenance) Act Cap 153 of the Laws of Kenya, a
woman or an Applicant may apply by either petition or otherwise to
the Court for an Order or Orders or Divorce under these Acts on the
ground that;-
16
(b) Has deserted the petitioner without cause for a period of at
least 3 years immediately preceding the presentation of the
petition (DESERTION) or
The wife may present a petition on the ground that her husband
has, since the celebration of the marriage, been guilty of rape,
sodomy or bestiality. (UNNATURAL OFFENCES E.G.,
HOMOSEXUALITY)
Under Cap 153, a woman may apply to the Court for Orders on the
Grounds:-
17
order to try and salvage their marriage urged her husband to take an
HIV test but he declined and this fact strained their marriage as a
result of which the husband started drinking heavily and often took
money from the business to finance this behavior. The wife felt
embarrassed and stated that there was no possibility of reconciliation
between them. The marriage had irretrievably broken down. She
prayed for dissolution of marriage on the ground of adultery but more
particularly, for fear of contracting HIV. The Respondent did not
challenge the evidence of the Petitioner and so the matter was
certified as an undefended cause. The Learned Judge in her ruling
did not delve into the details of the reasons for the marriage but only
made reference to the causes of the breakdown of the marriage and
proceeded to grant an Order dissolving the marriage.
18
the Court’s intervention. The Court ruled in favour of the operation,
stating that the best interests of the children were paramount and
required that the operation be carried out regardless of the
consequences. Since one of the infants obviously had a high chance
of survival anyway, then, it would be in the best interests of the
children that the operation is carried out. The life of the person,
according to the criminal laws of every country, lies in the hands of
the State. Hence all suits against the life of a citizen are brought by
the or in the name of the State/Republic.
THANK YOU
Alexandra N. Muniafu,
Advocate,
Muniafu & Company Advocates,
FPFK Head Office,
Kindaruma Road, Off Ngong/Menelik Road,
Next to Marie Stopes Kenya,
P.O. Box 15791-00100,
GPO Nairobi.
Tel: 254 – 020 – 3877654/3874704
Fax: 254 – 020 – 3874704
Email: amuniafu@yahoo.com
Hand Deliveries to Dropping Zone Box No. 11 Revlon Professional Plaza,
Tubman Road, Next to Teachers Service Commission..
19