Government has no business knowing HIV status of school kids, court rules

The high court has ruled that the presidential directive requiring all county commissioners to collect and keep up to date data of school going children living with HIV unlawful.


The high court has ruled that the presidential directive that required all county commissioners to collect and keep up to date data of school going children living with HIV unlawful.

Justice Isaac Lenaona, has ruled the directive issued on February 23, 2015 by president Uhuru violates the right of the young ones, their gurdians and all those who are associated with school going children living with the virus.

The judge instead directed the heath cabinet secretary, Dr. Cleopa Mailu and the national Aids control council to cordify the names and have the data stored in a manner that does not evidently link to their status in the public domain within 45 days.

Mid this year, the Kenya Legal and Ethical Issues Network on HIV and Aids (KELIN) and Children of God Relief Institute filed a petition in court, to stop the profiling of the children, saying it was unconstitutional and a violation of their rights.

Lenaona’s rule cements their worry and points out Kenya’s Achilles heel in terms of its public policy.

Kenya has a knack of putting the horse before the cart in most issues of public interest.

The government instead of following due process in form of carrying out adequate research, consulting and adhering to the constitution normally resort to blanket hurried directives, which normally backfires at the 11th hour.

Do you remember the hype and hurried manner in which the automated matatu cards were introduced in the market? Government through its bull dog, NTSA issues threats, banks sensed meat and jump into the bandwagon, Equity , KCB name them came calling with billions of shillings, where is it now?

Back to KELIN case, through lawyer Allan Maleche, they accused the ministries of Health, Education and Interior of implementing President Uhuru Kenyatta’s directive without consulting persons living with HIV/Aids.

“The method of collecting data is prejudicial to the rights of people living with HIV. It is like they have no right to protection from the law and to be treated equally,” Mr Maleche said then.

Well it seems the court agrees with their concern, back to drawing board.

The idea of collecting data is not a bad at all, it is actually a noble idea and should be supported because it aids the government in planning and allocating budget for financing HIV programmes.

Currently the bulk of HIV/Aids burden Kenya, is catered by USAID through the President's Emergency Plan for AIDS Relief (PEPFAR) and the danger of solely relying on it, is if they pull the plug on us we are helpless, hopeless etc. so we need to start creating a way we can fund our own burdens.

However while undertaking it, the process must adhere to the constitution and carried out in a manner which won’t stigmatized people living with the HIV virus.

After the ruling, KELIN posted a statement on its website.

“We welcome the judgment to the extent that it has found the directive to be unconstitutional and upheld the right to privacy but express our disappointment at the failure to address the need of having privacy regulations as contemplated by Section 20 of the HIV & AIDS Prevention and Control Act. It is indeed a time to celebrate the judgment but only partially as work remains to be done to ensure that we have the regulations in place and that will be our next battle front,”  said Allan Maleche – Advocate for the Petitioners and Executive Director of KELIN


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