They are the battered group. Daily, they battle the devastating effect of poverty, stigma and discrimination of living with HIV-Aids.
They sometimes are faced with violations, such as discrimination due to their status. Some have been subjected to testing without their consent and results released without their consent.
But now these Kenyans will get free legal representation thanks to a deal signed between the HIV Tribunal and Kituo cha Sheria.
Tribunal chair Hellen Namisi says persons living with HIV-Aids go through a very traumatising experience.
Most of them do not have lawyers because they do not have money to hire one. Oftentimes, they have to rely on pro bono lawyers, and there are not many to handle each case. This forces them to represent themselves before the tribunal.
Namisi says these people get so emotional because they have to come before seven strangers (tribunal members) and retell a traumatic experience they have gone through. And in most cases, they will have to face the person who has violated their rights.
She says the most difficult part is that immediately after they finish recounting their ordeal and they walk out of the tribunal, they don't have anyone who can give them professional psychological counselling.
This harms them. But the tribunal cannot do much in that regard because it falls under the judiciary and does not have a provision to offer psychological counselling sessions.
“The cases at the tribunal are of an emotional nature. Sometimes, sitting before a tribunal narrating an experience can be traumatic for the claimant. There is a great need for counselling and support services, which we are unable to provide at the tribunal,” Namisi said.
MORE HURDLES
The tribunal also faces challenges. First, the public has limited knowledge, if any, about its existence. This also extends to lawyers. For this reason, the tribunal has been actively engaging in awareness creation through various forums.
Secondly, the fact that most claimants are needy people contributes to the slow pace at which cases move. Many of them will file their claims at the tribunal but then cannot effectively represent themselves.
These cases sometimes raise weighty issues, and the respondents are companies that can afford a battery of lawyers.
The memorandum signed on June 24 means Kituo cha Sheria's in-house lawyers will offer this category of people legal representation, coaching for self-representation and draft pleadings for them.
In return, the tribunal will refer needy litigants and enhance the capacity of Kituo staff and volunteer advocates on matters relating to its mandate, practice in the tribunal and emerging issues around discrimination on grounds of HIV-Aids status.
The HIV-Aids Tribunal is a quasi-judicial organisation, and its mandate is to hear and determine complaints arising from any breach.
The tribunal comprises seven members. The chair and two members are lawyers with practice experience of more than seven years. Two of its members are doctors, while the remaining are representatives of the public.
The tribunal has powers like that of a magistrate, and once it gives an order or judgment, the litigant has to go to a magistrate's court to enforce the same.
The tribunal's specific objectives are to ensure justice and restore rights and dignity for persons living with HIV, and to eliminate all forms of discrimination, stigmatisation and rights violations that result either directly or indirectly from one's HIV status or perceived status.
It handles cases relating to breach of the provisions of the HIV and Aids Prevention and Control Act.
These include cases relating to stigmatisation of people living with HIV or even those perceived to be HIV-positive, testing persons for HIV without their informed consent, disclosure of the results or status of such persons without their consent.
The tribunal has also handled cases concerning negligence in HIV testing.
CASES GALORE
Currently, the tribunal has about 45 cases pending before it. The oldest case was filed in 2017. Most of the pending cases are from 2018 and 2019. It receives about 30 cases per year.
In one of the cases the tribunal handled last year and determined, a claimant who lives in Kibera sued over disclosure of her status without consent.
The tribunal heard that on May 24, 2016, at around 8.45am just when the claimant was about to take her ARV medication, a man known to her stormed into her house demanding money she allegedly owed him.
The man was accompanied by a woman unknown to the claimant. The claimant had placed the ARV medication on the table, ready to take it, when the man saw the drugs and began to insult her.
He continued hurling insults, loud enough for neighbours and the claimant’s grandchildren to hear.
As a result of this breach of the claimant’s right to privacy and confidentiality, the claimant sustained emotional and psychological injuries and thus suffered loss and damage.
The man denied the claims that he visited the claimant's house on that day. He further denied he would even be in a position to identify ARV drugs by sight and argued that the claimant’s allegations were untrue.
After analysing the evidence and listening to testimonies, the tribunal dismissed the case.
“On the whole, therefore, without clear evidence that the respondent was at the claimant’s house, the claimant’s claim for disclosure of status to third parties without consent fails,” held the tribunal.
Another case is that of a woman who disclosed the status of her host without consent.
According to the claimant, she was living with the respondent in her house located in Parklands. On February 17, 2018, the respondent rang the bell to the claimant’s home.
The claimant opened the door. The respondent did not enter but stood at the doorway and demanded her clothes and personal items. The claimant, however, asked the respondent to return the spare keys to her house before she could give her the said clothes and personal items.
The respondent started hurling insults at the claimant, which incident happened in the presence of her son and one of her friends. The claimant alleges that the respondent said the claimant was going to die since she was HIV-positive.
She won the case and the tribunal awarded her Sh250,000 as compensation.
FORCED CHECK-UP
In another case, the tribunal was faced with complaints of a domestic worker who was compelled to do a medical check-up to be hired and his status disclosed to employer without consent, which later led to him being fired.
It was claimed that the employer did not only fire him but disclosed his status in the presence of all the other workers.
The tribunal held in his favour and awarded the man Sh2 million. Of the amount, Sh800,000 is for non-compliance with set standards, while the remaining Sh1.2 million is for breach of his right to confidentiality.
Also determined by the tribunal is a case of a man who was given a false HIV result by a hospital that did not even seek his consent to do it in the first place.
He was so traumatised by the results that his health deteriorated further after discharge, but he got a negative test after doing same test with a different doctor at a different hospital.
The second doctor conducted a test on the man and the results came out negative. Even when a second test was done, it was negative.
The man sued the hospital and was awarded Sh1 million as compensation for conducting the test without his consent.
Edited by T Jalio