A lobby group for people living with HIV plans to sue the Kenya Revenue Authority for excluding over 130 revenue service assistant job applicants after mandatory medical tests.
The Kenya Legal and Ethical Issues Network on HIV and Aids (Kelin) has also demanded the suspension of officers behind the exclusion of 133 applicants who were found to be either HIV positive or pregnant.
“We undertake to commence legal action against the authority in pursuit of justice for the 133 candidates. If you are one of the 133 candidates affected by these violations and require legal advice, please reach out to Kelin,” the lobby said in a statement.
“Even as action is taken against the responsible officers, we demand that the Kenya Revenue Authority outlines remedial measures it will take to remedy the violations suffered by the 133 candidates in the hands of its officers.”
KRA Commissioner of Domestic Taxes Risper Simiyu has defended the exclusion of the applicants on medical grounds, citing a rigorous training regime for the recruits.
“The RSA (revenue service assistants) training has a dimension of paramilitary training, which requires physical fitness and protection of life during training,” Simiyu told Parliament’s National Cohesion and Equal Opportunity Committee.
She added that the decision was taken to guard against potential harm to recruits.
“This approach was purely anchored on health and safety for this group of persons to help maintain training readiness and reduce risk to potential recruits,” Simiyu said.
Her response to the MPs was supported by KRA Commissioner-General Humphrey Watanga who said: “The RSA programme had a paramilitary training element. A total of 133 candidates were eliminated on medical grounds.”
The recruits were to undergo a two-month training programme with the Kenya Defence Forces at the Recruits Training College in Eldoret, to help the taxman in its plan to boost tax collection.
However, Kelin maintains that Article 27 of the Constitution prohibits discrimination based on health status.
“If the Kenya Revenue Authority was convinced that the positions they were recruiting for were such that HIV status would render the candidates incapable of undertaking [them], they had a legal obligation to prove this through a prior application, as prescribed by the law,” Kelin said.
The HIV and Aids Prevention and Control Act, 2006 prohibits compulsory HIV testing under section 13 (1). The Act further makes it illegal to compel a person to undergo an HIV test as a precondition to or for the continued enjoyment of employment.
More than half of all new HIV infections in Kenya occur among adolescents and young people (aged 15-24 years).
Kelin said that subjecting women candidates to mandatory pregnancy tests and checking for contraceptive use without their consent was a violation of their bodily autonomy and integrity.
“This practice perpetuates discrimination against women and reinforces harmful gender stereotypes in employment and is a denial of reproductive justice,” the statement said.
Last week, members of the National Cohesion and Equal Opportunity committee said KRA’s exclusion of the job applicants was a serious violation of the law.
The committee chaired by Mandera West MP Yussuf Haji recommended an in-depth investigation into the matter.
“There is no doubt that gross violation of the Constitution was conducted by KRA during the recruitment of the revenue service assistants,” Haji said.
Kasipul MP Ong’ondo Were demanded that the KRA boss take responsibility for breaching the law.
Nyeri Town MP Duncan Mathenge rejected KRA’s justification for the decision, maintaining that not all paramilitary training required HIV tests.
“We have young men and women who recently graduated having gone through NYS. Why weren’t they subjected to the tests?” Mathenge asked.
Last year, Kelin sued the Kenya Defence Forces for excluding candidates with HIV during recruitment.
Kelin has successfully acted on behalf of people living with HIV in the past, winning them hefty awards from courts or from the HIV tribunal.