The Attorney General Urges the Court to Dismiss a Petition Challenging the Constitutionality of Section 26 of the Sexual Offences Act

On 31st January 2022, the Attorney General filed their submissions in Constitutional Petition No. 447 of 2018, arguing that the Petition should be dismissed. In its submissions, the Attorney General argues that Section 26 of the Sexual Offences Act is constitutional as it is necessary to curb deliberate transmission due to the continued presence of HIV in Africa. It further argues that the rights of persons living or affected by HIV are not absolute, and that these must be weighed and interpreted with limitations provided under the Constitution.

The Attorney General’s submissions were in response to those filed by KELIN and six other partners. In the submissions, KELIN raises three key issues:

  1. That the factual and lived experiences of each of the first six petitioners demonstrate that Section 26 violates rights and is being used to harm persons living with HIV;
  2. That the said section limits several of the petitioners’ constitutional rights and fundamental freedoms and
  • That there is no positive impact of laws specifically criminalizing the transmission and exposure of HIV.

The petition filed by KELIN and 6 other petitioners challenges the constitutionality of the provisions of Section 26 of the Sexual Offences Act No. 3 of 2006 which criminalizes the deliberate transmission of HIV and other sexually transmitted diseases.

The Office of the Director of Public Prosecutions is yet to file any response or submissions to the petition while the National AIDS Control Council is yet to file its submissions. The petition will now be mentioned on 10th February 2022 for parties to confirm if they have all complied with direction of the court to file their submissions.

PLEASE NOTE: The petitioners request that their names and identity should not be disclosed in the media to protect them from further stigma and discrimination on the basis of their HIV status. They are therefore not available to give interviews.

To contribute to the discussions on this forum, follow KELIN on our social media platforms: @KELINKenya using the hashtag #Justice2Health. #PositiveJustice

For more information:

Nyokabi Njogu

Legal Counsel

Kenya Legal and Ethical Issues Network on HIV & AIDS (KELIN)

Karen C, Kuwinda Lane, Off Langata Road

Po Box 112 – 00202 KNH

NAIROBI

Tel: 0790 111578

Email: litigation@kelinkenya.org