Media Advisory on the Mention of Petition 250 of 2015 challenging an Unconstitutional Presidential Directive

What: The High Court in Nairobi will on 26 January, 2016 mention Petition No. 250 of 2015 to determine whether a response has been filed to the affidavit filed by the director of the National AIDS Control Council. The court will further direct on how the case will proceed. The Petition challenges an unconstitutional directive by the President, His Excellency Hon. Uhuru Muigai Kenyatta.

The President issued a directive on 23 February 2015 to County Commissioners, to work with County Directors of Education and Medical Services, to collect up-to-date data and prepare a report on:

  • All school going children who are HIV positive and information on their guardians;
  • Number of expectant mothers who are HIV positive and
  • Number of breastfeeding mothers who are HIV positive.

The data was to be collected in a prescribed data matrix that would directly link the above mentioned persons with their HIV status, thus putting them at a risk of being stigmatized and discriminated against. The children would be linked to their home area and school, in addition to their HIV status.

Who:  Kenya Legal and Ethical Issues Network on HIV (KELIN), the Children of God Relief Institute (Nyumbani), James Njenga Kamau and Millicent Kipsang, who are represented by Rachier & Amollo Advocates, filed the case challenging the implementation of the directive. Mr. Anand Grover, the former Special Rapporteur for Health was allowed to join the case on 10 July 2015 as a friend of the court. The respondents in the matter are: The Cabinet Secretary, Ministry of Health: The National AIDS Control Council: The Cabinet Secretary, Ministry of Education, Science and Technology: The Cabinet Secretary, Ministry of Interior and Co-ordination of National Government and The Attorney General.

Why: The directive has the potential of increasing stigmatisation and discrimination of persons living with HIV (PLHIV). It will also potentially expose them to human rights violations on their right to privacy, confidentiality, against discrimination at home, work and in school. The directive will further increase the risk of people hiding their HIV positive status rather than seek treatment for fear that their right to privacy and confidentiality will be violated. This directive therefore poses a threat to the realisation and enjoyment of the constitutional right to health, and impacts negatively on the gains made in the promotion and protection of the rights of PLHIV in Kenya. It must be appreciated that forcing people to disclose their status, or those of their loved ones, has never helped to increase treatment rates and this directive will be no different.

When: Tuesday 26 January, 2016 at 0900hrs

Where: High Court of Kenya at Nairobi, Court No. 1 on 3rd Floor, Milimani Law Courts.


For more information contact:
Allan Maleche
Kenya Legal and Ethical Issues Network on HIV & AIDS (KELIN)
Mombasa Road, Somak Building, 4th Floor
Mobile No: +254 708 389 870
Twitter Handle: @KELINKenya #UhuruHIVlist.

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