HIV and AIDS Control and Prevention Act: Ethical Challenges
and Legal Gains in HIV Control in Kenya
Linda Were* and Simon K. Langat#
(* University of Nairobi, Institute of African Studies, email: linda1were@yahoo.com
# National Council for Science and Technology, email: langat@scienceandtechnology.go.ke)
Abstract
Kenya passed legislation in 2006 that was meant to facilitate the control of HIV/AIDS.
The Act has been lauded as an important milestone in the difficult road towards the
containment of AIDS in the country. Some sections of the Act were made operational
while some were not. There has been a general reduction of prevalence and what seems
to mean that there has been great success in the fight against the spread of HIV in the
country. This study sought to establish the contribution of the Act to the control of HIV
spread using the assessment of those who are closely associated with the implementation
of policies that have since been put in place pursuant to the Act.
The findings indicate that most are in agreement that the Act has been useful; some have
challenged the Act on account that it is not useful and that it may interfere with people’s
rights, final decisions for which are yet to be made by the courts. Others however think
that the success was largely attributable to the measures that had been in place long
before the law was passed and that control activities had developed a motion of their own
leading to the successes currently seen.
The paper argues that the law simply reinforced what had been started earlier on the basis
of common moral principles; there are no new moral dilemmas brought in by the Act
save for legal puzzles that can be resolved without throwing out the Act or incapacitating
it with restrictive and damaging deletions on any of its sections.
1
1.0 Background
HIV/AIDS is a global issue that has received a lot of attention across the world and a
large number of people are affected by it. Equally, there has been an unprecedented
response and effort to fight the scourge. The biomedical, social and economic efforts
have shaped our approach to disease control and social reactions to problems afflicting
mankind today.
HIV/AIDS has been a major problem in Africa and especially Sub-Saharan Africa.
Kenya is one of the world’s countries hardest hit by the HIV/AIDS pandemic. An
estimated 1.5 million people are living with HIV, around 1.2 million children have been
orphaned by AIDS and in 2009, 80,000 people died from AIDS related illness.1
The statistics from the Kenya demographic health survey 2008-2009 shows that the rate
of infection is 6% of Kenya adults age 15-49,this is lower than in 2003 when it was
7%.Women are disproportionately affected by HIV. According to KDHS in 2008 HIV
prevalence among women was twice as high as that of men at 8% and 4.3%,the disparity
is even greater in young women aged 15-24 who are four times more likely to become
infected with HIV than men of the same age. Adult HIV prevalence is greater in urban
areas 8.4% than in rural areas 6.7%.However as around 75% of people in Kenya live in
rural areas, the total number of people living with HIV is higher in rural settings( 1
million adults) than urban setting which is 0.4 million adults.2
The government of Kenya has had a history of several interventions and measures since
HIV was first identified in Kenya in the early 1980s.According to Sessional paper no. 4
1
Ministry of Health -Strategic Plan for the Kenya National HIV/AIDs and STDs Control Programme
1999-2004
2
Government
of
Kenya
(July
2008).
Kenya
AIDS
Indicator
Survey,
2007.
www.aidskenya.org/public_site/.../KAIS_Preliminary_Report.pdf,
2
of 1997 on AIDS in Kenya, the Government of Kenya responded to the epidemic when
it was first recognized by establishing the national AIDS committee and development of
strategic plan. The national AIDS committee was established in 1987 to advice the
government on all matters related to the prevention and control of AIDS. An AIDS
programme secretariat was established to coordinate activities. These steps led to the
establishment of the Kenya National AIDS control programme in 1987.It was followed
by the development of a five year strategic plan called the medium term plan
(1987-1991).3 This plan emphasized creation of awareness about AIDS, blood safety,
clinical management of opportunistic infections and capacity building for management of
AIDS control programme at national level. The main strategies pursued were prevention
of sexual transmission, prevention of transmission through blood, prevention of mother to
child transmission and disease surveillance. By 1991 AIDS was recognized not just as a
health issue but a developmental problem requiring the participation of all other sectors
and thus the second medium term plan (1992-96) continued to pursue the same strategies
but in addition emphasized the need to involve all sectors in HIV prevention in order to
mobilize broader national response against the epidemic. The Government at the time
also took note of the scientific findings that, sexually transmitted diseases facilitated the
spread of HIV. This led to the integration of STD and AIDS control hence the
establishment of NASCOP in 1992. According to the sessional paper no.4 there was need
for a multi-sectoral strategy which was foreseen at the inception of national Aids control
programme in 1987 and hence this led to the establishment of the National AIDS Council
which would enable the Government to overcome most of these constraints since
NASCOP as a department of the Ministry of Health, could not be able to marshal other
sectors involved in AIDS prevention and control. The national AIDS council would
expedite HIV prevention and control Activities
through formulation of appropriate
policies, establishment of an appropriate institutional framework for multisectoral AIDS
control including care of people affected and coordination of all actors which include
government
departments,
non-governmental
organization,
community
organization, religious organization, private sector and donors among them.
3
Sessional Paper No 4 1997
3
based
In 1997, parliament approved the sessional paper no.4 of 1997 on AIDS in Kenya which
provided a policy framework to guide all partners in Kenya’s response to the challenges
of HIV/AIDS. This brought in a new window of hope in the areas of advocacy and policy
development, prompting intense national debates about factors leading to the spread of
the disease and the effective strategies for prevention and control which in turn led to
renewed and vigorous political commitment to reducing the spread of HIV/AIDS.4
In 1999 President Moi declared HIV/AIDS a national disaster and announced that a
National AIDS Control Council (NACC) would be established immediately. As a result
of devastating effects of HIV, the government through a legal notice no.170 of the State
Corporations Act established the NACC in November 1999 to coordinate, supervise and
monitor implementation of multisectoral national HIV and AIDS response. NACC
developed the Kenya national HIV/AIDS strategic plan with its theme being: to reduce
HIV/AIDS and poverty. Kenya national HIV/AIDS strategic Plan aims to promote
behavior change and hence came up with the now famous “ABC” approach. It stands for,
Abstinence, being faithful and using a Condom. This was to promote abstinence, and or
consistence in practice of safer sex among those who are most vulnerable and the general
population. In further efforts to continue the fight against HIV/AIDS, the ninth
Parliament in the 2006, enacted the HIV and AIDS Prevention and Control Act, No. 14 of
th
2006, which was assented to by the President on 30 December, 2006.With its aim to
provide for the protection and promotion of public health, appropriate treatment,
counseling, support and care of persons infected or at risk of HIV infection.
Expectations from the Act
The Government appointed a team to draft the legislation and coordinate stakeholder
consultations and ensure widespread support for the new law. The team took its time and
developed a draft that was later discussed and passed in parliament. The country and
indeed the affected groups, healthcare givers and general population appreciated the
enactment. The following were the expectations.

4
Provide a framework for prevention, management and control of HIV/AIDS
Kenya National AIDS strategic plan 2005-2007
4

Give impetus to those pushing for holding the government accountable on the
issue of universal access and treatment for all people living with HIV/AIDS
(PLWHIV) through protection and promotion of public, treatment support and
care of infected persons
Overview
Around the world, different nations have come up with statutes to safeguard people
living with HIV/AIDS and at the same time uphold human rights. The development of
legal instruments on HIV/AIDS began in 1982 considering the mean time interval
between the establishment of a baseline epidemiological data and production of specific
health legislation in industrialized countries. In developing countries, legislation started
two years later and reached a peak in 1987. Kenya followed suite, in December 2010,
when the minister for special programmes put into operation section 14, 18, 22 and 24
while leaving out all other sections. This has derailed several measures hence affecting
the efforts made so far in the fight against HIV/AIDS. The objective of this act was to;
promote public awareness about the causes, modes of transmission, consequences, means
of prevention and control of HIV and AIDS. To extend to every person suspected or
known to be infected with HIV and AIDS, full protection of his/her human rights and
civil liberties by prohibiting HIV testing save as provided for in the Act; Guaranteeing
the right to privacy of the individual, outlawing discrimination in all its forms and
subtleties against persons with or persons perceived or suspected to have HIV and AIDS,
ensuring the provision of basic healthcare and social services for persons infected with
HIV and AIDS. Promote utmost safety and universal precautions in practices and
procedures that carry the risk of HIV transmission and positively address while seeking
to eradicate conditions that aggravate the spread of HIV infection.
Some of these objectives are yet to be met since the act has not been fully
operationalised. Section (9) states that a person who offers to donate any tissue shall
immediately before such donation undergo a HIV test. There are so many cases of organ
transplant that would require regulation by the relevant sections of the Act.
5
Section 31 (1) provides that no person shall be denied access to any employment for
which he is qualified, or transferred, denied promotion or have his employment
terminated on the grounds only of his actual perceived or suspected HIV status.
Section (32) provides that no educational institution shall deny admission or expel,
discipline, segregate, deny participation in any event or activity or deny any benefits or
services to a person on the grounds only of the person’s actual, perceived or suspected
HIV status.
Section 33 (1) provides that a person’s freedom of abode, lodging or travel within or
outside Kenya shall not be denied or restricted on the grounds only of the person’s actual,
perceived or suspected HIV status.
Section 35 (1) provides that no person shall be compelled to undergo a HIV test or to
disclose his HIV status for the purpose only of gaining access to any credit or loan
services, medical, accident or life insurance or the extension or continuation of any such
services. However it is provided in Section 35 (2) that an insurer, reinsurer or health
maintenance organization shall in the case of life and healthcare service insurance cover,
devise a reasonable cover for which a proposer shall not be required to disclose his or her
HIV status .This has not been followed up by insurance service providers.
Part (7) of the Act creates the HIV/AIDS tribunal. Section gives the tribunal jurisdiction
to hear and determine complaints arising from breach of the provisions of the Act, to hear
and determine any matter or appeal as may be made pursuant to the provisions of the Act
and to perform such other functions as may be conferred upon it by any other written law
being in force. It has powers of a magistrate’s court to award damages in respect of any
proven financial loss or in respect of pain and suffering and psychological suffering as a
result of the discrimination against the complainant. When this section is not put in
operation then the whole Act remains useless because even those operational sections
depend on it.
Research is essential for innovations and improvements in the medical sector. Part (9) of
the Act is about research that involves human subjects. Section 9(40) states that no
person shall undertake HIV/AIDS related biomedical research on another person or any
6
tissue or blood removed from such person except with the written informed consent of
that other person or if that other person is a child with the written informed consent of a
parent or legal guardian of the child. This Section is not operationalized thus creating the
impression that certain requirements as to consent for testing and confidentiality and
biomedical research are not catered for by law for the time being.
Section 1 of the Act provides that:
“This Act may be cited as the HIV and AIDS Prevention and Control Act, 2006
and shall come into operation on such date as the minister may by notice in the
gazette appoint different dates for different provisions.”
Tragically, five years later, some sections of the Act remain not operational, it would be
important to assess the effect of prevailing situation on the control of HIV. This was the
basis of our study and was aimed at assessing the moral issues that underpin the fears
informing the minister’s action.
Since the whole Act is important and the sections interdependent it should be treated as
unitary both in terms of its outcomes and implementation.
3.0 Study objectives
The objective was to establish the general contribution of the Act to the control and
prevention of HIV/AIDS and to present and discus the impact of the Act on HIV in Kenya.
Our Specific objectives were; to document and assess the impact of the Act on HIV control
and prevention and to assess the Impact of exclusion of some sections from operation and
especially informed consent as it relates to research in sections 39 and 40. These would give
us the basis for discussing the moral foundations of the Act and some implications the current
implementation situation has brought to bear.
7
4.0 Methodology
The study used questionnaires to collect data. Respondents from specific institutions deemed
to have useful information were asked to fill in the questionnaire or answer questions in an
interview session. The expert sampling method was used for the study. It involved only
persons at the institutions that executed the Act, the attorney general’s office, members of
ethics committees, government officials that participated in deciding how to proceed with the
draft developed by the task force that created it, legal advisors and members of the now
disbanded task force and interested parties (stakeholders) like the people living with HIV,
(PLWHIV) and other Non Governmental Organization activists.
5.0 Results
We received various standpoints on the different issues that were addressed by our
instrument. The respondents were persons that had a clear grasp of the Act and the
situation in the country since the passage of the Act by Parliament.
The sections that were pronounced into operation by the Minister responsible were:
section 14, on consent of minors; 18, on results of HIV testing; 22, on disclosure of
information; and 24, on prevention of transmission of the virus. The sections that remain
non operational include: 4, on education and information; 5, on education in institutions
of learning; 6, on education as a health care service; 7, on education in the workplace; 8,
on information in communities; 9, on testing of donated tissue; 10, on testing of donated
blood; 11, on guidelines for surgical and similar procedures; 12, on penalty for unsafe
practices or procedures; 13, on prohibition of compulsory testing; 15, on provision of
testing facilities; 16, on testing centers; 17, on pre-test and post test counseling; 19, on
access to health care services; 20, on privacy guidelines; 21, on confidentiality of records;
25, on establishment of the tribunal (the tribunal has since been gazetted on 21st July,
2011 hence, all sections of the tribunal are operational). Others were; 31 – 38, on
discrimination (part viii); 39 – 42, on research (part ix); and 43 – 46, (part x) on
miscellaneous provisions.
8
Some groups in the Kenyan society have gone to court asking to have the sections that
were operational declared null and void and inconsistent with the constitution. Those who
support the Minister’s action regarding the relevant sections however claim that; the
sections secure consensus from stakeholders, prevents abuse of HIV testing while
protecting the country and safeguarding respect for the individual; enables the
involvement of persons living with AIDS in the prevention of HIV and safeguarding of
their rights; encourages people to accept voluntary testing with appropriate counseling.
Some felt that the sections especially 22 and 24 need further clarification as the matter
can be dealt with in section 26 of the sexual offences Act.
Most respondents thought that the measures taken, by the country to control HIV and
AIDS have been successful. This is due in part to the results of Kenya Demographic and
Health Survey, 20095 and a report, released by the National AIDS and STD Control
Programme (NASCOP) in 2010.6 The results indicated that HIV/AIDS prevalence had
gone down to 6.2% from 8%. This outcome has been attributed to the NACC strategic
plan that was drawn to guide the process of controlling and preventing HIV spread n the
country. Respondents describe the situation with words like: “successful, good impact,
fairly successful, awareness is high” and that the spread witnessed is due to negligence by
some people and not lack of awareness. Awareness levels are placed at 98% of the
population by the respondents.
Test screening, safe practices and procedures score well with about 60% of the
population tested. It has lead to the setting up of many voluntary counseling and testing
sites. There are over 1,200 such sites. Policies and guidelines for safe practice have been
launched country wide and continue to provide useful services to the population.
Confidentiality
Respondents associated with implementing institutions reported that the section has been
fairly successful. Guidelines that determine the procedure were developed in 2008 and
5
6
Kenya National Bureau of Statistics: Kenya Demographic Health Survey 2008-2009; pp 209-228; 2010
NACC; Kenya Service Provision Assessment Survey; 2010
9
are followed. Staff in the institutions follow and hold that confidentiality if breached
would be a violation of their rights thus maintaining a high level of adherence.
Respondents from civil society and other institutions not directly involved with
implementation of the Act either had no comment or did not know what to report on
confidentiality. Some reported that there were dilemmas without any details. Others still,
stated that there has not been any significant impact and stigma continues to be a great
hindrance to the respect of confidentiality as a right. This was interpreted to mean that
persons who would wish to take a HIV test are fearful that the results of his/her test
would not be kept sufficiently confidential to stave off any prejudice that may follow a
breach of confidentiality.
Tribunal
A tribunal was announced during the period when material for this article was being
collected. All respondents after the announcement noted the same. Some added correctly
that the tribunal did not have any budget allocations as yet and that it will be seen in days
to come, how it will respond to the issues at hand especially arising from the numerous
cases that are pending before it. There are high expectations that the tribunal will address
the issues of stigma at places of work, schools and at home.7 The Kenya AIDS NGO
Consortium adds that the tribunal will reduce vulnerability by protecting human rights. 8
Discriminatory acts and policies
Respondents have some level of expectation that the newly set up tribunal will address
the perceived fairness of the Act. Whereas part VIII of the Act is about discrimination in
the workplace, restrictions on travel and exclusion from credit and insurance, the
respondents do not appear to address the issue of whether there are policies that are
contrary to this Act. It is not clear whether or not the respondents regardless of their
institutions, have any information on the actual situation regarding the clauses in these
sections. One respondent indicates that there has been an increase in discrimination.
7
8
Daily Nation 30/06/2011
Ibid
10
Research
Some respondents claimed that the country has the broad architecture necessary for
research and that it actively engages in protecting human subjects. Ethics review
committees were cited to be doing well in protecting human subjects while however; the
Act has not been supportive, as the relevant part was not operationalized nor is it
enforceable.
Respondents from implementing institutions and civil society that responded to the
questionnaire had varying comments, not following any pattern.
Operationalization of the Act
Apparently, respondents thought that the sections which have not been put into operation
should be operationalized. The reasons they offer as to why the sections were not are
varied. They ranged from lack of institutional mechanisms and policies for managing the
sections to conspiracy by some to frustrate the new law. Civil society respondents stated
that the sections would not have influenced behavior positively for the required changes
to be realized. Stigma, they claim, drives the breaches of confidentiality. Furthermore,
there is no budgetary allocation to facilitate their operations. The tribunal, it was said,
would be a less effective alternative to ethics review committees.
Other important reactions from those who responded indicate that some activists opposed
structured approaches to HIV control and prevention. They do not support routine testing
at health care centers, always citing justifications that hinder discussions and progress.
Some lobby groups have engaged arguments that are an end in themselves and do not
focus on finding useful solutions.
Comments from respondents in the implementation side did not differ from those of civil
society. Others however reserved their comments, leaving the sections of the
questionnaire blank.
Implementation and Reactions to the Act
Reactions to the possibility of success in implementation and support from different
stakeholders were also varied but generally in unison for the different respondents. There
11
is total agreement that the structure that exists for the control of the disease is suitable and
effective. Since creation, the National AIDS Control Council has raised the level of
consultation with stakeholders leading to success in control. The tribunal is expected to
improve the area of human rights and justice. Most respondents believe the public is
sufficiently aware of the Act and the people living with HIV in the majority are aware.
Government commitment in general was described as lackluster and not consistent yet it
is aware, has embraced the Act but has not clearly dealt with the Implications. There are
conflicts in some sections namely testing, consent and confidentiality.
Civil society and NGO’s welcomed the Act and have high expectations. Insurance
service providers have not reacted to the Act. Discrimination is still evident, the
confusing unclear response and seemingly imprecise perception is an indication of inertia
and slow movement towards acceptance but not rejection.
6.0 Discussion
The HIV and AIDS Prevention and Control Act of 2006 was passed with the good
intentions of providing measures for prevention and management of HIV as a public
health concern. It contains basic prescriptions for public education and information;
various procedures and practices, for safety provision including testing and screening;
guidelines for privacy; rules for the prevention of transmission; determination of rights
and complaints; and guidelines for research amongst others.
There are two distinct voices commenting on the Act from the results above. One finds
the Act largely successful and well implemented by those to whom it apportions
responsibility. The noble aims of this piece of legislation are known widely across the
country. On the other hand, there are those who do not see any benefits towards the
prevention of HIV, they claim that it is not clear what benefits the conflicting clauses will
bring to the control of HIV.
The National AIDS Control Council, the lead authority in the implementation of the Act
is not created by the Act, rather by an executive legal notice. The NACC predates the Act
hence the anomaly. Other institutions include the relevant ministries responsible for
health, public security, law courts and the tribunal created by the Act. The tribunal, once
12
it gets into full operational mode will take over all judicial responsibility like the other
tribunals set up by the 2010 Constitution of Kenya.
Education and Information
We look at education and information of HIV as being largely successful in the country.
There are activities that went on prior to the Act being operationalized. They were driven
mainly by the NACC strategic plan drawn in 20009 and a report from the NACC10.The
document was praised within the country and worldwide as a purposeful well-articulated
plan. The reduction of prevalence rates can be directly attributed to the plan. The message
that has been popularly called “ABC”11 in an ideal situation could eliminate HIV within a
specific period of time. The situation in Kenya was not ideal nor was the message
faithfully followed by all.
Credit however is due to the Government for the persistence in pronouncing the message
that made the majority in the population to desire and practice its content to some extent.
Thus the policies that were in place to guide the drafting of the law are basically
acceptable. It is expected naturally that the development of the Act followed the same
policy and reinforces it. Public institutions are created and empowered to pursue what is
desired by society and deliver useful outcomes.
Safe Practices and Procedures
Sections 9 and 10 are categorical about the need to test tissue and blood that is to be
donated to other persons. It does not go into details of disclosure of the test nor does it
give the donor any option of a choice. It is expected that a donor will accept the test or
desist from donating. The protection of an organ recipient is paramount. The demand on
9
Kenya National HIV/AIDS Strategic Plan- Oct 2000 National AIDS Control Council 2000-2005
10
11
NACC; 2009/10-2012/13: Delivering on universal access to services. Nairobi.
Abstain, Be Faithful, Condom use
13
the donor is fair as it is an obligation for both the donor and the agent (medical or
laboratory worker) to not transmit the HIV virus under any circumstances to a non
infected person. This underlines the importance of this clause in the Act. The Act goes
further to safeguard the recipient by offering the option of an extra testing for complete
avoidance of doubt. The import of this section, {9 (3)} is to absolve the state or any other
party involved in the transaction from any blame whatsoever while prohibiting a risky
undertaking. The subsequent section on the guidelines on surgical and similar procedures
is based on the same reasoning. This part of the Act is therefore designed for the good of
the public and the avoidance of error.
Test Screening
Compulsory testing is prohibited by the Act. The same section in a second clause defines
condition upon which no testing can be allowed. These include testing as a precondition
for employment, marriage, admission to educational institutions, travel and access to
health care/insurance. The next section lifts the prohibition on those who are charged
under the sexual offences Act, 2006 {Section 13 (3)}. This window introduces
controversies of the sexual offences Act to the HIV and AIDS law. Arguments have been
raised by various groups against the compulsory testing under the sexual offences Act. In
the case of AIDS Law Project verses the Attorney General, in April 2011, the High Court
declined to suspend implementation of section 24 of the Act citing that public interest
outweighed the interests of the applicants12. Bwire has examined the sexual offences Act
in greater detail and suggests that HIV status be considered an aggravating factor during
sentencing using substantive criminal law as recommended by the International
Guidelines on HIV/AIDS and Human Rights13
Such controversies besides confusing the public slow down the progress towards the
control of the disease. Moral questions must be raised here, should society rely on
individual goodwill only for the control of a deadly scourge? Is it to be understood that
the Act contradicts itself and perhaps the constitution? What is the best way of resolving
moral issues that are encountered in laws that are meant to regulate human behavior to
12
Kenya Law Reports; www.kenyalaw.org; 2011, cited in Daily Nation 9th May 2011; Law Report/II
Buluma Bwire; Criminalization of Deliberate HIV Infection in Kenya; Proceedings of the First Biennial
HIV/AIDS Conference; May 2011
13
14
protect the population? The argument in the paragraph above on safe practices is valid
here and should be upheld. It is the duty of law to set the minimum standard of behavior
for all.
Consent to HIV testing and Confidentiality
The Act guarantees respect for persons regardless of their status with respect to HIV. The
section on consent was operationalized and further clarified by the 2008 NACC
guidelines on HIV testing and counseling. The guidelines make confidentiality a
requirement. Whereas section 20 on confidentiality was not one of the sections
operationalized, the Ministry of Health has assumed its responsibility and provided
leadership and guidance to the processes related to the section. The overall effect of these
activities can be assessed as positive since they were part of what lead to the reduction in
HIV prevalence in the country.
The state took measures to safeguard privacy by developing guidelines in accordance
with section 20 (1) of the Act and by the action of operationalizing section 22. Both
sections are in tandem with ethical principles that have for long been held and applied.
Respect for persons is a principal to be upheld at all times. The constitution of Kenya
underscores the same principle in the bill of rights article 28.14 There is a moral
obligation on government to continue ensuring these rights are safeguarded.
Prevention of transmission
Prevention of diseases is an issue of great public importance. The prevention of infectious
diseases is a responsibility of the state. This responsibility empowers the state to take
appropriate measures. It is not uncommon worldwide to find states curtailing individual
rights in efforts to curb the spread of diseases. The justification for such efforts is found
in the common statement that “prevention is better than cure”. Global classification of
health services by states is based on the ability of a country to control infectious diseases.
The creation of a tribunal gives the Act the versatility it requires to be effective. Although
its formation has come more than four years since operationalization of the Act, it is still
14
Constitution of Kenya; Government Printer; 2010; Article 28
15
expected to play a crucial role. The tribunal consists of seven members representing the
medical practitioners, legal practitioners and others with skills necessary for the discharge
of functions. Gender balance is expected to be maintained at least in accordance with the
constitutional requirement of one third. The drafters of the Act did not consider naming
people living with HIV, minority groups of whatever other description, persons with
distinctive classification as being necessary to be named into the tribunal. Indeed it would
be burdensome to introduce such differentiations for the membership of the tribunal. A
lean tribunal would be more efficient and versatile to manage. Considering that HIV is
just one disease among many, and that successes in other areas of prevention will in
future ease the burden on public financing, it would be prudent to maintain a reasonably
lean tribunal.
We consider discrimination in the work place, education and other places as an important
issue in the prevention of HIV. There is no doubt that discrimination exists. This study
did not however seek to establish details about discrimination in any of the sectors. We
therefore confine ourselves to commenting on the provisions of the Act in so far as the
respondents to the questionnaire could highlight. The impact of this section will become
clear in the days to come as the tribunal begins to consider the cases pending.
Research
Section 39 and 40 of the Act address research in HIV and AIDS. It introduces
requirements that are standard practice in research and conform to the currently held view
that research must be conducted only with due respect for persons, where it would be
beneficial and that it is justly executed. The reference to the Science and Technology Act
(Cap 250) in section 39 is recognition of the general governance structure for research in
Kenya. It is meant to relate research in HIV and AIDS to standard requirements and
management of research for HIV and AIDS. Section 40 restates the need for consent for
the purposes of using human tissues for research. Anonymous testing is introduced in
section 41 for the purpose of public health. It empowers the Minister to make guidelines
for anonymous testing. It has been noted by some investigators that the state in Kenya
plays a multiplicity of roles in HIV vaccine research (E.A. Oduwo). She attributes 4 roles
16
to the state i.e. regulator, physician, participant and researcher and concludes that this
state of affairs leads to ethical challenges and conflicts15. The four roles are however
played by different institutions coordinated through the legal statutes that spell out their
mandates. The involvement the state is focused on provision of infrastructure, direct
funding of research and provision of health services. Thus it would appear that the state is
doing all that appertains to research. The state should, be a regulator and not leave any
ambiguity in demanding that research be ethically conducted. We argue that inclusion of
sections 39 and 40 in the Act are meant to reinforce the moral requirements that are
already standard practice.
7.0 Conclusion
There is a general agreement among the respondents that the Act has made a difference is
the national effort to control the spread of HIV. Those involved in the implementation
were more likely to be optimistic. Actions that have so far been taken by the Government
are justifiable and logical. There is a widespread consensus that commitment is high
towards the prevention of the disease and that most of the activities so far accomplished
are within the morally acceptable limits. The cases that have been launched in the courts
are procedural and do not present challenges to the underlying moral foundations of the
law. The current problems with institutions and responsibilities are temporary and will be
resolved in time.
The Act remains an important addition to national efforts to control HIV and AIDS.
Ethical debates about any of its clauses cover a wide spectrum from the purely academic
to practical and do not hinder it from making useful contributions.
15
Elizabeth A. Oduwo; Rethinking State Participation in HIV Vaccine Trials; Proceedings of the
International Conference on Bioethics; Egerton University/UNESCO 2010; PP35
17