A Nation Bound By HIV/Aids

[Guest guest]

A Nation Bound By HIV/Aids

The Nation (Nairobi)

December 1, 2004

Posted to the web December 1, 2004

Wanja Njuguna

Nairobi

" They come to me, why should I chase them away? " says a woman with

Aids, popularly known as Nyar Gem. Most of the men who visit the

widow's beautifully furnished home know that her husband, a former

policeman, died of Aids.

One of her recent " customers " was a young man waiting to join

university. He was warned by colleagues in the school he was teaching

at, but he told them they were just jealous. Just before him was a

secondary school teacher with two wives - he too, knows what killed

Nyar Gem's husband. But he will not leave her alone.

This is part of the grim Aids story in Kenya - many know how to avoid

it but they don't. Others, unfortunately, are infected unknowingly

and these are some of the ones that the HIV/Aids Bill, gazetted last

August, hopes to protect.

According to the National Aids Control Programme, every three

minutes, a Kenyan dies of Aids. More than 1.8 million children in

Kenya have been orphaned by Aids. In 2001, there were 500,000 new

infections.

When the Task Force on HIV Legal Issues Relating to HIV/AIDS was

enacted about three years ago, it was hoped that the legal framework

it came up with would help deal with all matters surrounding the

scourge. It was chaired by lawyer A.D.O. Rachier and its joint

secretaries included human rights lawyers Muma and Otiende

Amollo. The rest of the team was composed of various professionals;

people with HIV/Aids were well represented.

The Task Force was mandated to deal with salient legal issues

relating to HIV/ Aids, linking law and human rights and the

strategies and policies put in place to combat the scourge. It was to

help reform our laws with a view to better prevention, management and

control of the HIV/ Aids disaster in Kenya.

It was also meant to advise on the adoption of guidelines, rules,

regulations and procedures immediately required to address the HIV/

Aids disaster, to look into human rights issues affecting widows and

widowers, orphans, employees and other workers and people living with

the scourge, address legal matters concerning HIV/Aids with regard to

marriage, research, insurance and drug access matters and make

recommendations.

The Task Force also reviewed offences under the Penal Code and other

offences in the laws of Kenya in light of the HIV/Aids pandemic and

made recommendations on how the penal laws could be strengthened.

On August 6, 2004, the Bill was gazetted. And that was the last we

heard of it. No one seems interested in pushing it any further and it

now appears to be in danger of dying. " When a bill is tabled in

Parliament, it follows a calendar. If the person under whose

jurisdiction a bill falls does not push for it, that bill might never

see the light of day, " says an official in the AG's chambers. In the

case of the HIV/Aids Bill, the mandate to push it fell under the

Ministry of Health.

Safe practices

The Bill addresses many issues that are important to the survival and

rights of people living with HIV/Aids (PLWHA) as well as those not

infected. Some of these issues include ensuring safe practices - for

instance, someone offering to donate any tissue will undergo HIV

testing, while any blood donated must be tested for the virus. Also

included are guidelines to be followed in medical institutions to

ensure no infections occur in the line of duty.

One of the most important parts of the Bill and which has become

contentious among many interested parties is Part IV 13(1,2), which

deals with testing, screening and access to healthcare services. " No

person shall compel another to undergo an HIV test as a precondition

to or continued enjoyment of employment, marriage, admission into any

educational institution, entry into or travel out of the country or

provision of healthcare, insurance cover or any other service. "

Section 14(1) subject to sub-section (2) of 13 says a child will not

undergo a test unless a guardian or parent allows it.

Another contentious section says that the results of an HIV test will

remain confidential except in cases of a child or one with a

disability that renders them incapable of understanding the results.

Available resources

Section (2) mandates the Government to the maximum of its available

resources to take the steps necessary to ensure access to essential

healthcare services, including access to essential medicines at

affordable prices by persons with HIV or Aids and those exposed to

the risk (such as rape victims).

Section 20 emphasises the confidentiality of one taking a test -

using codes for the whole process and ensuring no transmission of

this information to any other person other than the tested person or

the other people mentioned. Part IV has become a very contentious one

with PLWHA's. It states that a person who is aware of his HIV-

positive status and knowingly infects others will be prosecuted.

Part VIII discusses discriminatory acts and policies that include

insurance covers. An insurance organisation should devise a

reasonable limit of cover for which a proposer shall not be required

to disclose his or her HIV status but if one exceeds that limit, they

will be compelled to a HIV test.

No person shall undertake HIV or Aids-related biomedical research on

another person or on any tissue or blood removed from such person

unless such a research conforms to the requirements under the Science

and Technology Act or any other written law for the time in force.

So why has the Bill not gone anywhere? " Very many factors and forces

that do not want to see it go through for their own selfish reasons, "

says Amollo, a joint secretary of the Task Force.

While the Bill is supposed to accommodate many factors surrounding

people with HIV, including research rights, some foreign

organisations have been accused of playing a role in inciting PLWHA's

for their own gains. According to Amollo, " Unless the Bill is tabled

in Parliament soon, it might die. "

He expresses concern about the foreign organisations. " All

organisations that work with PLWHA contributed to the Task Force. But

they did not raise the issues they are raising now. Who are the

sufferers at the end of the day? People with HIV/Aids, not those who

are HIV-negative. "

Amollo also feels that it will be important for amendments to be made

to the Bill after it is passed so it can address prisoners' problems,

Aids orphans and the Succession Act, and traditional practices that

hinder the fight against HIV/Aids.

Muma also sees insurance companies playing a role in blocking the

Bill. " Insurance companies all over the world and some right here in

Kenya are adjusting to the fact that the scourge is affecting

millions of their potential customers. They know that there is no way

they will survive if they do not insure people with HIV. The issue of

insurance also affects mortgages and the like. Who says that people

with HIV cannot pay off their loans? " she says.

Life insurance

Last May, the Association of Kenya Insurers (AKI) threatened that

life insurance premiums would increase if the proposed Bill went

through. The AKI executive director was quoted saying, " The

Association strongly submits that if these legislative changes are

adopted, insurance will be rendered inaccessible to the majority of

Kenyans, whilst dealing a major blow to the goal of mobilising long-

term savings through life insurance. "

Dr Sobbie Mulindi, a lecturer at the University of Nairobi who has

been involved with HIV/Aids work in Kenya for a long time, says that

the issue of the 2001 Abuja Declaration, where heads of states signed

a pact saying that the health budgets of their respective countries

must not be less than 15 per cent of the total budgets, has been a

bone of contention for many countries. Kenya was a signatory to the

declaration. " Adhering to this declaration means that HIV/Aids issues

are catered for and must be taken seriously, " he says.

Arbitrary studies

Dr Mulindi also regards the contentious research part of the Bill

as " control and manipulation " global process by donor

countries. " These organisations know that if this Bill goes through,

they won't be able to carry out arbitrary studies on Kenyans like

they are doing now. "

The writer is a Harvard University Millennium Human Rights Fellow

researching on employment discrimination of people with HIV/Aids at

the Kenya Human Rights Commission.