ADMINISTRATIVE LAW II GPR

HIV AND AIDS TRIBUNAL

JUDICIAL REVIEW IN KENYA
GROUP SIX
8/7/2013
MEMBERS:
G34/2705/2011
G34/2720/2011
G34/2748/2011
G34/2735/2011
G34/2703/2011
G34/2771/2011
G34/2798/2011
G34/2785/2011
G34/2810/2011
G34/2822/2011

Contents
THE HIV AND AIDS TRIBUNAL........................................................................................................ 1
A brief overview of Judicial Review in Kenya ................................................................................... 1
Background to the establishment of the HIV Tribunal ....................................................................... 1
Impact of HIV in the Society .......................................................................................................... 2
KENYAS LEGAL OBLIGATIONS ............................................................................................. 3
Access to Justice for Persons Living with HIV and AIDS ............................................................. 4
THE HIV AND AIDS PREVENTION AND CONTROL ACT 2006................................................................ 6
ESTABLISHMENT OF THE HIV AIDS TRIBUNAL ..................................................................... 8
COMPOSITION OF THE TRIBUNAL ......................................................................................... 9
JURISDICTION OF THE TRIBUNAL........................................................................................ 10
POWERS OF THE TRIBUNAL .................................................................................................. 12
JUDICIAL REVIEW OF THE HIV AND AIDS TRIBUNAL ........................................................ 13
Contentious Issues for Judicial Review ........................................................................................ 15
SOME IMPORTANT ISSUES OF CONCERN THAT FACE THE TRIBUNAL .......................... 15

THE HIV AND AIDS TRIBUNAL

A brief overview of Judicial Review in Kenya
The rules of natural justice have been held to be applicable to every tribunal or body of
persons vested with power to adjudicate upon matters involving civil consequences to
individuals.1
An application for judicial review may be instituted to have an order, act or decision of a
public body quashed or declared invalid on such grounds as inter alia, being ultra vires or,
unreasonable or, for being based on irrelevant or extraneous considerations. This is achieved
by the order of certiorari. There are orders to restrain the performance or continuance of an
unlawful action. This is rendered by an application for and issuance of the order of
prohibition. Lastly, an application for judicial review may be instituted to secure the
performance of a peremptory public duty. Normally, the proper remedy for wrongful
omissions by public officials is the order of mandamus.2

Background to the establishment of the HIV Tribunal

In the determination of judicial review, a court is tasked with the question of determining
what the intention of parliament was in enacting the relevant laws and establishing the
relevant institution which is the subject of the judicial review. This is necessary to understand
the scope of the powers
To elucidate this, it is therefore prudent to understand the major factors that influenced
parliament in enacting the HIV Control and Prevention Act and the establishment of the HIV
and AIDS Tribunal.
Some of the major factors that influenced parliament to enact the HIV Act and establish the
tribunal are:
i.

The severe impact of HIV/AIDS in the Society

ii.

The legal obligations under the constitutional framework that necessitated

provision of justice to people living with HIV and AIDS (from here on known
as PLHIV)

iii.
1
2

PLHIV lacked access to the regular courts

Fischer v. Keane [1878] 11 Ch. D. 353

LUMUMBA, PLO & KALUMA, PETER,

Impact of HIV in the Society

HIV/AIDS has greatly impacted the Kenyan Society and Kenya as a whole in all spheres
such as social, political and economic. There are an estimated 1.6 million people are living
with HIV in Kenya.
The impact of the HIV prevalence in Kenya is profound and an impediment toward the
achievement of the Vision 2030 this is according to the Permanent Secretary in the Ministry
of State for Special Programmes, Andrew Mondoh.3
HIV/AIDS contributes to 29% of all deaths in Kenya higher than cancer and malaria." This
presents a public health and social economic challenge not only to Kenya, but the rest of the
world. The high HIV prevalence rate in Kenya has led to numerous human right abuses
against PLHIV and HIV affected families.
Kenyas HIV epidemic was the fourth highest globally, behind more populous India, Nigeria
and South Africa.4
HIV targets people in the prime of their adult lives, impoverishing families and leaving
behind a generation of orphans who are often cared for by aging grandparents. Families
affected by HIV and AIDS typically experience a dramatic drop in household income, while
businesses lose increasing profits to worker absenteeism. The very social services needed to
mitigate the impact of AIDS, including health services, are themselves diminished by high
rates of HIV among Kenyas workforce. With over half of Kenyans earning less than US$1
per day as of 2005, experts have suggested that AIDS poses a threat to the nations economic
recovery efforts.5
HIV/AIDS was therefore declared a national disaster in 1999 and became a top priority for
the government to handle.

Kenya Legal and Ethical Issues Network on HIV and AIDS

KELIN see http://kelinkenya.org/2013/06/mombasa-kilifi-lawyers-discuss-plhivs-dilemmas-vis-a-visgovernment-policieslaws/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+kelinkenya+%28Kenya+Legal+
%26+Ethical+Issues+Network+on+HIV%2FAIDS%29 viewed on 30th July 2013
4

KENYAS LEGAL OBLIGATIONS

The state also needs to function according to the principles of fairness and justice as set
out in the Constitution and protect the rights of its citizens. It also has to honour its other
legal obligations towards persons living with HIV and AIDS.

Constitutional Framework for the HIV and AIDS Control and Prevention Act

The Constitution is the Supreme6 law of Kenya and all other laws and statutes must be
consistent with constitutional provisions in order for it to hold any ground before a court of
law in Kenya.
The HIV Act was passed in 2006 during the previous constitutional dispensation however
for it not to be declared null and void by a court of law it must maintain relevancy by being
constitutionally sound even in the current dispensation.
Some of the Constitutional provisions that enshrine the rights of PLWHA and therefore
form the constitutional basis for the HIV AIDS Control and Prevention Act are:
i.

Article 22 of the Constitution any one has the right to institute court
proceedings when they claiming that a fundamental freedom has been
contravened.

ii.

Article 28 of the constitution provides that every person has inherent dignity
and the right to have that dignity respected and protected.

iii.

Article 27 on Equality and Freedom from discrimination provides in subarticle (4) that: the state shall not discriminate directly or indirectly against
any person on any ground, including race, sex, pregnancy, marital status,
health status, ethnic or social origin, colour, age, disability, religion,
conscience, belief, culture, dress , language or birth.

iv.

Article 31 which provides for the right to privacy.

v.

Article 43(1) which states that Every person has the right (a) to the highest
attainable standard of health, which includes the right to health care services,
including reproductive health care;

vi.

Article 41(1) Every person has the right to fair labour practices.

vii.

Article 50 which states that everyone has a right to a fair trial

Constitution of Kenya 2010, Article 2(4)

Kenya is also a party to numerous international treaties protecting the human rights of people
living with, affected by, and at risk of HIV and AIDS. Kenyan domestic law prohibits many
human rights abuses that are linked to HIV, such as sexual violence, child abuse, and certain
forms of discrimination.

The United Nations Declaration of Commitment on HIV/AIDS sets concrete, time-bound

targets for the introduction of national legislation and other measures to ensure the respect of
rights in regard to education, inheritance, employment, health care, social and health services,
prevention, support, treatment, information, and legal protection.

Access to Justice for Persons Living with HIV and AIDS

With the severe impact of HIV/AIDS in the country it quickly became a legal issue that had
to be determined.
Women face both legal and de facto discrimination in access to property and inheritance,
often becoming destitute upon the death of their husband or dissolution of their marriage.
This discrimination, in turn, increases their socioeconomic vulnerability leading to the risk of
HIV infection and re infection for them and their children.
Sex workers in Kenya face a particularly high risk of HIV and, as a criminalized population,
may be driven from seeking health services by fear of arrest, harassment by police, and
judgmental treatment by health providers.
Adults living with HIV/AIDS also face discrimination in the workplace. Some 2.2 million
Kenyans out of a population of 30 million are living with the disease a large percentage of
the workforce. Abuses such as domestic violence, rape, early marriage, child sexual abuse, and trafficking
into sexual exploitation help drive the epidemic among women and girls, and are indicators
of the epidemics impact on communities and livelihood security.
A brief summary of many of the legal cases often related to HIV and AIDS:
Labour-related cases, including issues such as:
i.

unlawful termination

ii.

not being remunerated for work completed

4

iii.

not being remunerated for overtime work,

iv.

travel allowance, or commission earnings

v.

lack of workers compensation coverage or severance benefits

vi.

abuse of pension privileges

vii.

protection from hazardous employment

viii.

child labour

Domestic-related cases, including issues such as:

i.

inheritance

ii.

land and property rights

iii.

child custody disputes

iv.

appeal applications for cases related to domestic abuse

v.

adultery

vi.

maintenance support for women and children

vii.

divorce

viii.

sexual violence, abuse, exploitation, and rape

ix.

discrimination

Civil-related cases, including issues such as:

i.

non-payment of accounts

ii.

breach of contract

iii.

quality of health/treatment services

iv.

professional negligence

v.

violation of human rights in the health sector(e.g. violation of the right to

confidentiality, equal access to healthcare services)7

The vast majority of Kenyas people living with HIV and AIDS do not feel able to access the
formal legal system. There is a perception within the community that formal legal services
are too complicated and commercially driven,8
i.

Lack of physical access to these systems, as most of Kenyas districts have only
one magistrate in the entire district, and the north eastern province does not have a
visiting judge

Botswana Centre for Human Rights Paralegal Programme

Kalla,Kristin and Cohen, Jonathan Ensuring Justice for Vulnerable Communities in Kenya A Review of HIV and
AIDSrelated Legal Services, Open Society Institute. 2007
8

ii.

The high cost of taking cases through the courts, especially court filing fees and
transportation

iii.

Delays in processing matters before the courts, with civil matters taking between
two and six years on average, and people who have suffered abuse (such as
eviction or termination) not being able to withstand frequent adjournments of
cases

iv.

The intimidating formal court atmosphere, which consists of numerous

technicalities and complex procedures, making it necessary for litigants to have
legal assistance they cannot afford.

Most of the poor in Kenya therefore seek redress from traditional structures in the
community, such as chiefs and councils of elders. Traditional justice is carried out by
members of society exercising justice as they perceive it, often on the basis of customary or
religious law.9
This system has several disadvantages: limited knowledge among traditional leaders of the
formal laws and policies governing a particular issue; poor quality of services; lack of gender
sensitivity; lack of knowledge of AIDS issues; susceptibility to local politics and corrupt
influences; and reliance on traditional values that may undermine human rights.
Providing HIV-related legal services requires two kinds of capacity-building: building the
capacity of legal service providers to better address the needs of HIV and AIDS-affected
populations; and building the capacity of health providers to better use the law to advocate
for their patients. Legal services must be designed so they are accessible for all types of
vulnerable populations and institutions.10

It is this discourse that led parliament to enact the HIV and AIDS Prevention and Control Act

THE HIV AND AIDS PREVENTION AND CONTROL ACT 2006

ibid
ibid

10

In determining whether the decisions of a particular body are subject to judicial review, a
court is not only confined to the source of that bodys power and duties but also the nature of
functions performed by the body.11
The HIV and AIDS Prevention and Control Act is the source of the powers of the HIV
Tribunal. The Act was enacted by Parliament in 2006 to provide the legal framework to
address the HIV crisis.

The general aim of the act is to provide measures for the prevention, management and control
of HIV and AIDS, to provide for the protection and promotion of public health and for the
appropriate treatment, counseling, support and care of persons infected or at risk of HIV and
AIDS infection, and for connected purposes.12

Section 3 of the Act provides the object and purpose of Act:

(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 liberties by
i.

prohibiting compulsory HIV testing save as provided in this Act;

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;

(c) ensuring the provision of basic healthcare and social services for persons
infected with HIV and AIDS;
(d) Promote utmost safety and universal precautions in practices and procedures
that carry the risk of HIV transmission; and positively address and seek to
eradicate conditions that aggravate the spread of HIV infection.

The Act seeks to encapsulate the various issues that affect PLHIV in its provisions such as
education and information, safe practices and procedures in medical procedures, matters to do
with consent to testing, disclosure of HIV test results and discrimination of PLHIV in various
scenarios, confidentiality and HIV transmission.
11
12

R v. Panel on Take Over and Mergers ex p. Data fin Ltd [1987] 1 All ER 564, C.A [1987] QB 815
HIV and AIDS Prevention and Control Act No 14. Of 2006

ESTABLISHMENT OF THE HIV AIDS TRIBUNAL

The HIV and AIDS Tribunal is established by section 25 of the HIV and AIDS Prevention
and Control Act. It was established as the first ever tribunal of its kind in the world.
However it was not until December 2009 that members of The HIV Equity tribunal were
appointed by the Attorney General.
The tribunal was established to handle legal issues relating to HIV and includes
discrimination against people living with HIV and protecting the confidentiality of medical
records. It will not only hear disputes from people infected with HIV and AIDS but also those
affected by the disease.
The tribunal was set up to help provide an alternative, faster and more sensitive legal avenue
for persons living with and affected by HIV (PLHIV), in the context of the provisions of the
Act and it is also meant to reduce the many technicalities faced in the normal judicial process
and therefore deal expeditiously with such issues.
For example in the case of J.A.O. vs. Home Park Caterers & Metropolitan Hospital13
The complainant in this case had been terminated from work contrary to the above section of
the Act as she was a person living with HIV/AIDS, and her case had taken 5 years before it
was determined in court. Hence the tribunal put in place will ensure that such cases are
determined expeditiously to avoid the incidence of more psychological torture as the court
process takes long.
The Act outlaws any form of discrimination relating to PLHIV and the government is to take
all the necessary steps to ensure that PLHIV are able to access the health services they need
and this is through the channelling of resources to address their needs.
The Tribunal is to ensure that the rights of PLHIV & AIDS are protected and guaranteed and
such rights include the right to access to medical care, the rights to access to drugs and also
the right of access to information.

13

J. A. O. vs. Home Park Caterers & Metropolitan Hospital HCC No. 38 of 2003 Nairobi.

The Tribunal had established a registry that receives complaints and grievances in writing.
The different complaints are reviewed and assigned as appropriate. The Tribunal also
assisted members of the public who may be illiterate to record their complaints.

COMPOSITION OF THE TRIBUNAL

Under the act, this tribunal shall consist of:

A chairman who shall be an advocate of the High Court of not less than 7 years
standing

Two advocates of the high court of not less than 5 years standing

Two medical practitioners recognized by the Medical Practitioners and Dentists Board
as specialists under the Medical Practitioners and Dentists Act (cap 253)

Two other persons with the necessary specialized skill or knowledge for discharging
the functions of the tribunal

All the above persons are appointed by the Attorney General and at least two of them shall be
women.
This year, the Chief Justice, Willy Mutunga opened the tribunal at the Supreme Court where
the six member committee was sworn in:

Jotham Arua (chairman)

Mercy Mwarah

Mohammed Noor Kullow

Prof. Julius Muasya Kyambi

Angelina Siparo

Joe Muriuki

The members will sit for a period of three years. The Chief Justice has the mandate to ensure
that cases filed by HIV/AIDS victims are expedited for them to get justice.
Section 30 of the HIV/AIDS Prevention and Control Act states that the Chief Justice may in
consultation with the chairman of the Tribunal, and by Notice in the Gazette make rules
governing the practice and procedure of the Tribunal having regard to the objectives of this
Act.

JURISDICTION OF THE TRIBUNAL

Section 26 of the HIV Act provides for the matters which can be brought before the court. (1)
1. The Tribunal shall have jurisdiction
(a)to hear and determine complaints arising out of any breach of the provisions of this Act;
(b)to hear and determine any matter or appeal as may be made to it pursuant to the
provisions of this Act; and
(c)To perform such other functions as may be conferred upon it by this Act or by any other
written law being in force.
2. The jurisdiction conferred upon the Tribunal under subsection (1) excludes criminal
jurisdiction.

Some cases that are illustrative of the matters that can be brought before the court are:
BBC News, 2008 (party names withheld for purposes of confidentiality) 14
In 2002, a 45 year-old former waitress had visited a hospital with rash and chest pains. The
doctor tested her for HIV for which she turned positive without first informing her of the test
or her status. Without her consent, the doctor disclosed her HIV Status to the employer. The
employer dismissed her from employment on that information on what was termed as
medical grounds. She lost her employment on that basis after working with the company for
eight years. She sued the doctor for unlawful disclosure of her HIV status and the employer
for dismissing her on that basis. She was awarded a substantive sum in form of damages.
This case highlights such matters which the tribunal shall have jurisdiction to hear and they
include consent to testing as per section 14 of the act and disclosure of information
concerning the result of an HIV test as per section 22 of the Act.
Another case that illustrates a matter that would fall under the jurisdiction of the tribunal is:
C.O.M v. Standard Group Ltd & Another15
The 1st respondent, after interviewing the petitioner, who happened to be a person living with
HIV, published an article titled Thanks for the drugs, but where is the food?

14

BBC News (2008), Kenyan wins landmark HIV ruling. Available at

http://news.bbc.co.uk/2/hi/africa/7499496.stm
15
eKLR 2013

10

The article appeared on the 1st respondents newspaper i.e. East African Standard. The
petitioner contended that he did not give express or written consent to the respondent to
disclose his health status or use his photograph as contemplated under section 2 of the HIV
and AIDS Prevention & Control Act (Act No. 14 of 2006) and therefore the disclosure in the
circumstances were rendered unlawful. He contended that the revelation about his status led
to him losing respect from friends and heightened stigmatization and also led to loss of
customers in his business. Justice Lenaola found for the petitioner and awarded him Kshs
1,500,000 for the breaches proved.
Hoffman v South African Airways 16
Mr Hoffman applied for a job as a cabin attendant with South African Airways (SAA) and
was asked by SAA to go for an HIV test. The test showed that he was HIV positive. SAA
refused to give Mr Hoffman the job because, they said, part of his job involved travelling to
different countries and he would need to have a yellow fever vaccination. It is not advisable
for someone with HIV to have these vaccinations. SAA said that this was an inherent
requirement of the job (essential for the job) in the airline and therefore they couldn't employ
him.
The case was referred to the Constitutional Court. The court was asked to decide if SAA had
gone against Hoffman's rights to equality, dignity and fair labour practices.
The court decided:
1. That SAA had discriminated against Hoffman
2. The discrimination was unfair and infringed his dignity
3. Being HIV negative was not an inherent requirement of the job of being a cabin
attendant; they should have taken greater steps to investigate how Hoffman's immune
system could have dealt with travelling and the possibility of getting a strange disease.
The foregoing also is in line with our section 31 of the HIV and AIDS prevention Act which
bars any employer from firing or refusing to admit someone on the basis of their HIV status.

16

Hoffman v South African Airways (2000)

11

POWERS OF THE TRIBUNAL

Section 27 of the Act grants the following powers by the Act, it may therefore, upon any
complaint or appeal being made to it:
(a) Confirm set aside or vary the order or decision in question;
(b) Make such other order as may be appropriate in the circumstances;
(c) Without prejudice to the generality of paragraph make an order
(i) For the payment of damages in respect of any proven financial loss,
including future loss, or in respect of impairment of dignity, pain and suffering
or emotional and psychological suffering as a result of the discrimination in
question;
(ii) Directing that specific steps be taken to stop the discriminatory practice;
(iii) For the maintenance of the status quo of any matter or activity which is
the subject of the complaint or appeal until the complaint or appeal is
determined;
(iv) Requiring the respondent to make regular progress reports to the Tribunal
regarding the implementation of the Tribunals order.

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.

Remedies the tribunal may provide

Some of the Remedies that the tribunal can provide pursuant to section 27 of the Act17 which
gives the tribunal its powers are:
Damages
Monetary compensation also referred to as damages are available to the aggrieved parties. In
C.O.M v Standard Group and another18, the petitioner was awarded general damages of 1.5
million shillings.

17
18

HIV and AIDS Prevention and Control Act

C.O.M v Standard Group and another (2013) eKLR

12

A similar remedy (compensation) was given in the case of Scholten v Foundation Sanquin of
Blood Supply19. It is clear from the above examples that damages may be awarded by the
High Court, when it is dealing with judicial review proceedings from the HIV and AIDS
Tribunal.
Injunction
The Tribunal may give an injunction, as in X v Y and others20; a permanent injunction was
given against the disclosure of confidential hospital records, which revealed the HIV status of
two doctors.

JUDICIAL REVIEW OF THE HIV AND AIDS TRIBUNAL

Article 23 of the Constitution gives the High Court jurisdiction to handle matters to do with
the infringements of fundamental rights.
The functions of the tribunal being quasi-judicial fall under the ambit of the High Court, in
exercise of its supervisory jurisdiction to conduct a judicial review of decisions of the
tribunal.21
So far, the High Court has not received any judicial review case from the tribunal.
Nevertheless, the High Court has decided cases that would have been within the powers of
the tribunal to decide. Such a decision is a precedent and is likely to be adopted by the
tribunal when deciding cases.
In the case of JAO v Home Park Caterers & Metropolitan Hospital22
The complaint, a woman known only as JAO to protect her identity, was awarded 17,000
Euros in a landmark ruling against her employer and her doctor. She claimed she had been
dismissed after her doctor told her former employer, Home Park Caterers, of her medical
status. The doctor at Metropolitan Hospital had tested her for HIV without her consent and
passed the results to her employer in breach of doctor-patient confidentiality. Her termination
letter showed that she had been sacked on medical grounds.

19

Scholten v Foundation Sanquin of Blood Supply [1999] H/98.0896, County Court of Amsterdam
X v Y and others [1988] 2 All ER 648
21
Constitution of Kenya 2010, Article 165(6)
22
Ibid, 13
20

13

The High Court ruled that it was unlawful and an invasion of privacy for a company to test a
staff member for HIV without her consent. It was also unlawful for a doctor to disclose a
patients medical status to an employer.
The complainant could have presented her complaint to the HIV and Aids tribunal as it has
jurisdiction to hear and determine complaints arising out of any breach of the provisions of
the HIV and AIDS Prevention and Control Act, in this case section 31(b) of the Act: no
person shall have his employment terminated on the grounds of his actual HIV status.
Unfortunately it had not been established then, in 2002.
Had the tribunal given a verdict in favor of that employer, she could have applied for judicial
review in the High Court.
She could seek the order of certiorari to quash the decision. Her justification for quashing
would be that the decision to dismiss her was illegally arrived at, ultra vires and irrational.
The employer had acted contrary to section 31(b) of the Act and article 27(5) of the
constitution which provides that no person should directly or indirectly discriminate another
on any basis, she had been discriminated on the ground of her HIV status hence, illegality.
Irrationality would also be pleaded cause the employer had taken into account a matter he
should not have regarded in deciding to dismiss her, her HIV status. This is a ground for
determining whether a public body has acted unreasonably set out in the Wednesbury case.
In the South African case of B & others v Minister of Correctional Services23 the court held
that the prisoner infected with HIV/AIDS had a right to medical treatment from the state
which was a constitutional requirement. Therefore, the prisoner ought to be provided with the
prescribed anti-viral therapy. It was further stated that the state had failed to show it could not
afford to treat the prisoner.
When compared to the Constitution of Kenya provision for access to healthcare services to
everyone, one deduce what a tribunal ought to consider in deciding if a right should be
acquired gradually.
Therefore, were the tribunal to be handling such a matter it ought to take into account all
relevant statutory provisions and all surrounding circumstances in arriving at the decision. If

23

B & others v Minister of Correctional Services [1997] 2 All SA 574

14

a tribunal fails to consider an element such as a constitutional provision, then the aggrieved
party may institute judicial review proceedings against such a decision.
Contentious Issues for Judicial Review
Section 24 of the Act criminalizes the willful transmission of HIV. However this poses
challenges as it then begs the question whether the tribunal can handle matters dealing with
transmission of HIV as the jurisdiction of the Tribunal encompasses the provisions of the act.
If it is found that the Tribunal does not have the powers to handle such cases then any
decision that the tribunal makes regarding a situation whereby there has been transmission of
HIV is ultra vires and such a decision could be rendered null and void at judicial review
However it is worth noting that human rights advocates have argued that specific criminal
laws against HIV transmission have the potential to disproportionately affect vulnerable
groups, such as sex workers, HIV-positive pregnant women, and adolescent girls who have
sex with older men for reasons of economic survival.24
Another contentious matter is section 24(7) that provides that a medical practitioner the
power to disclose a persons HIV status to someone whom he feel it at risk if the medical
practitioner believes that the person has not disclosed his status to those at risk within
reasonable grounds. There have been arguments by legal scholars that state that this provision
contravenes Article 31 of the Constitution which protects the right to privacy. 25 If on Judicial
Review this provision

SOME IMPORTANT ISSUES OF CONCERN THAT FACE THE TRIBUNAL

1. Does the public have the requisite goodwill towards the tribunal such as to trust them
to resolve their disputes? Lack of such goodwill and perceived resistance from
various quarters will hamper the tribunals activities. The public will expect high
levels of privacy and confidentiality from the tribunal.
2. What is the tribunal going to do with the usual bureaucracy involved in reporting of
cases, hearing and settling them? What plans are there to ensure prompt hearing and
disposal of such cases?

24

Interviews with Michael Angaga and staff of Network of African People Living with HIV/AIDS (NAP+),
Nairobi, July 21, 2006.
25

15

3. Now that we have a devolved system of governance, what plans does the tribunal
have on board to ensure that its services are also devolved to the 47 counties or will
they stick to the previous system of governance and opt to only have one office in
Nairobi?
4. How will the technicality of locus standi affect the operation of the tribunal? Must a
person with sufficient interest be the only person to approach the tribunal or will
there be a provision to the effect that any other person can approach the tribunal even
if they are not directly affected by the problem in question?
5. What about the aspect of limitation of actions? After how long since the occurrence
of the matter in question will such a matter be declared time-barred, or will people be
at liberty to approach the tribunal any time that they decide to?
6. How will the tribunal deal with cases that are vexatious, frivolous or reported in bad
faith?
7. Will the tribunal leave room for Alternative Dispute Resolution mechanisms as
provided for by article 159(2)(c) of the constitution?
These are some of the issues that will face the tribunal in its search for legitimacy not only
judicially but in the society as a whole. The tribunal will therefore have to address these
issues as it continues to gain ground as a respectable institution of law in the country.

16