UNAIDS - 23 February 2012
At the June 2011 High Level Meeting on AIDS, world leaders
pledged to eliminate stigma and discrimination against people
living with HIV by promoting laws and policies that advance human
rights and fundamental freedoms. The recent creation of an HIV
Equity Tribunal in Kenya--the first of its kind
globally--represents a bold step towards achieving this goal.
An estimated 1.6 million people are living with HIV in Kenya. The
seven-member Tribunal will provide access to justice for Kenyans
who face stigma, discrimination or criminalization based on their
HIV status. It will also seek to advance the rights of women and
girls, who are disproportionately affected by the HIV epidemic in
The Joint UN Team on HIV and AIDS in Kenya, through UNDP and
UNAIDS, will support the Tribunal by building its capacity to
operate effectively, providing technical support, and creating
demand within communities through advocacy.
UNAIDS spoke with Ambrose Rachier, Chair of the Tribunal, about
the opportunities and challenges that lie ahead.
What is the mandate of the Tribunal? How will the Tribunal carry
out its mandate?
The mandate of the Tribunal is outlined in the 2006 HIV/ AIDS
Prevention and Control Act.* The Tribunal has jurisdiction to
hear and determine complaints arising out of any breach of the
Act and any matter or appeal as may be made pursuant to the
provisions of the Act. The Tribunal can also perform functions
related to the Act, excluding criminal jurisdiction.
Court proceedings can take years in Kenya. The Tribunal can
quicken access to justice for people living with HIV. What are
the other expectations of the Tribunal?
The Tribunal has the power of a court and can receive evidence,
hear witness accounts, conduct full hearings and pass judgments
on the above matters. With this in mind, it is expected that the
Tribunal will focus on the protection of human rights of people
living with HIV. It therefore encourages those infected with and
affected by HIV that have been violated in any manner that is a
breach of the HIV/AIDS Prevention and Control Act of 2006 to come
forward and air their grievances.
How do you plan to discharge your mandate?
The Tribunal has established a registry that receives complaints
and grievances in writing. The different complaints are reviewed
and assigned as appropriate. The Tribunal also assists members
of the public who may be illiterate to record their complaints.
What actions have been undertaken by the Tribunal so far?
Since the swearing in of the members, the Tribunal has received
various matters, reviewed them and categorized them based on the
general complaints as follows:
A majority of the complaints received relate to workplace issues
that discriminate and stigmatize employees on the basis of their
real and/or perceived HIV status. These range from termination of
employment, demotion and irregular transfer of employees based on
their HIV-positive status.
The second category of cases relate to denial of access and
difficulty in access to HIV treatment, mainly arising from claims
of persons being transferred to remote areas of the county where
antiretrovirals, medications for opportunistic infection and HIV
prevention services and commodities cannot be readily accessed.
The last category involves cases that arise from family relations
and primarily affect women who, on the grounds of their
HIV-positive status, may have suffered domestic violence,
abandonment or the disinheritance of property.
What are the immediate plans for the Tribunal?
The immediate plan is to build the capacity of Tribunal members
to enable them hear and resolve matters, as only three of the
seven members are officers of the court. The Tribunal first sat
and dealt with two complex cases on 31 January. A campaign to
publicize the Tribunal and the access to social justice is
planned so as to enlighten the public and create awareness of the
services of the Tribunal.
How do you envision the Tribunal will contribute to the national
response to HIV?
The Tribunal will help discourage discriminatory practices,
encourage inclusivity and uphold involvement of people living
with HIV. It will also increase the space for social dialogue on
HIV-related stigma, increase knowledge and awareness, and reduce
stigma. This will help increase access to HIV prevention services
and practices, increase uptake of services, and create demand for
HIV prevention, treatment, care and support services.
What opportunities lie within the Tribunal to address stigma and
discrimination--a persistent bottleneck to achieving universal
The Tribunal will be an excellent vehicle for reaching out to
other institutions that knowingly or unknowingly exacerbate
stigma and discrimination, including the insurance sector,
employers and even institutions of learning. The Tribunal can
complement and provide awareness around ethical and legal issues
surrounding HIV and on how to treat those in your charge that
could be affected.
What do you expect are the anticipated challenges for the
The Tribunal is currently experiencing a lack of goodwill and
resistance by some parties with specific interests. This has
hampered our work. The bureaucracy is also a hindrance affecting
the optimal performance of the Tribunal, and it delays the legal
redress that is needed. Those affected may continue to suffer as
they await justice and may lose faith in the Tribunal. It is
known that Justice Delayed is Justice Denied. We do not want to
set such precedence, but the bureaucracy is a big limiting
The other challenge will be to operationalize the Tribunal and
discharge our duties effectively in the coming devolved structure
of governance. Currently the intention is for the Tribunal
members to hold rotational sittings by province. However with the
devolved structure, the seat of governance will be at the
proposed 47 counties, and this may overwhelm our seven-member
Tribunal to adequately discharge justice.
Despite these challenges, I am optimistic and proud to have been
part of this unique Tribunal that is the first of its kind in the
world. I hope that other countries will emulate our experiences
and learn from our successes and challenges.
Other countries may be interested in how this idea came about,
and how long it took to bring to fruition.
In 1999, HIV was declared a national disaster. This led to the
establishment of the National AIDS Control Council. A taskforce
on HIV and the law was also instituted.
The mandate of the taskforce was to provide legal guidance on
what laws are necessary to facilitate HIV prevention, treatment
and care. I was the chair of that taskforce. In 2000, we began
our work and completed a report in July 2002. At the time, we
identified three key issues that could be addressed: i) Stigma
and discrimination were factors that escalated the spread to HIV
ii) There was a need to address issues of access to HIV
prevention, treatment and care services iii) Access to justice
for people living with and/or affected by HIV as a means to
improve the national response. After the submission of the
report, the drafting of the HIV/AIDS Prevention and Control Act
began and was passed in 2006. This Tribunal was enshrined in the
said Act and, in June 2011, the Tribunal members were sworn in.
*Object and purpose of Kenya's HIV and AIDS Prevention and
Control Act of 2006:
(a) Promote public awareness about the causes, modes of
transmission, consequences, means of prevention and control of
HIV and AIDS;
(b) Extend to every person suspected or known to be infected with
HIV and AIDS full protection of his human rights and civil
(i)Prohibiting compulsory HIV testing save as provided in this
(ii) Guaranteeing the right to privacy of the individual;
(iii) Outlawing discrimination in all its forms and subtleties
against persons with or persons perceived or suspected of having
HIV and AIDS;
(iv) Ensuring the provision of basic health care and social
services for persons infected with HIV and AIDS;
(c) Promote utmost safety and universal precautions in practices
and procedures that carry the risk of HIV transmission; and
(d) Positively address and seek to eradicate conditions that
aggravate the spread of HIV infection.
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