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HIV-positive Kenyans Need Tribunal to Address Rights Violations

NAIROBI, Aug 3 2010 (IPS) - Nancy Njeri’s life changed when she contracted HIV through a gang rape. Not only did the infection traumatise her, she was ostracised by close friends and neighbours whom she had known for almost a decade. She was fired from her job and when she attempted to sell vegetables, people boycotted her stand because of her status.

Nancy Njeri at her house in Korogocho slum, longs for a speedy AIDS tribunal.  Credit: David Njagi

Nancy Njeri at her house in Korogocho slum, longs for a speedy AIDS tribunal. Credit: David Njagi

Sadly Njeri’s case is not an anomaly in Kenya. Research has shown that four out of five HIV-positive people are being ostracised by the larger community. And in a country where an estimated 1.4 million people aged between 15 to 64 years are infected with HIV, it represents gross human rights violations.

It is something human rights organisations in the country are looking to change by calling for the implementation of the AIDS tribunal which was gazetted in December 2009. It is expected to seek legal redress for past injustices against people living with HIV.

The 2010 Human Rights Count report released in May 2010, which is the first of its kind in Kenya, revealed that 82.7 percent of people living with HIV face abuses ranging from loss of life, denial of social security as well as health care, among others.

The report, conducted in partnership with the Global Network of People Living with HIV/AIDS and the National Empowerment Network of People Living with HIV, says there is a high likelihood a person living with HIV will be denied available treatment, care and support from public health facilities.

The Report Findings

According to the report which sampled 68 case studies in Mount Elgon, Mombasa, Nairobi and Kisii regions, 53 respondents said their rights were violated at the family, society and institutional level, with 25 percent of the victims reported to have died.

The report, which is a culmination of a study conducted in October and November, 2009, says 41 respondents acknowledged that they were denied access to housing, education and employment due to their real or perceived HIV status.

While the report indicates that 34 percent of the abused persons are not likely to report the violation because they did not know that they should report, 32.1 percent did not know whom to report to while 22.6 percent were afraid to report.

The study, which was motivated by the need to spotlight human rights abuse in parts of Kenya that have experienced militia activities and those that were affected by the 2007 post election violence, says respondents in the 31 to 40 age bracket accounted for most violations, with only eight per cent having attained formal education.

“Production of this report was inspired by the fact that historical injustices against people living with HIV have never been documented before,” says one of the researchers, Rahab Mwaniki.

Despite the constitution of Kenya guaranteeing the right to life and protection from inhuman treatment and any form of discrimination, it does not directly address the rights of people living with HIV, according to Jacinta Nyachae, the executive director of the AIDS Law Project.

According to Nyachae, this could explain why most HIV-positive people who experience human rights violations fail to report them. She also links the low reporting rate to lack of awareness on where they may report as well as the process of seeking redress.

“This is why we are lobbying for a vigorous AIDS tribunal so that people living with HIV will be able to seek justice for past as well as future injustices,” says Nyachae.

The tribunal is meant to pursue redress for past injustices against people living with HIV. And though the list of injustices submitted to the tribunal’s chairman, Ambrose Rachier, is long, he says it is not meant to punish offenders who transgressed the rights of people living with HIV.

“Restitution will vary depending on the nature of the complaint and could include cash remedies, job reinstatement as well as requirement for violators to comply with the law as stipulated in the 2006 HIV Prevention and Control Act,” says Rachier.

This is good news to Njeri, who longs for a speedy tribunal. The 34-year-old migrant from Murang’a district in the Central Province of Kenya says the tribunal offers her a window of opportunity to redress her unfair dismissal.

“My boss demanded to accompany me to a Voluntary Counselling and Testing (VCT) facility to obtain a medical certificate after I began taking two days sick (leave) in a week,” recalls the mother of two. Njeri, who used to work as a maid, declined to allow her boss to accompany her for what should be a private test.

“I was immediately dismissed from my job without any explanation. My boss said he would call me on my cell phone but up to now he has never called me. I think I was fired because I was HIV-positive. I did not know what to do to seek redress because stigma was very high at the (time).”

Njeri is not the only HIV-positive person who has had found it hard to seek justice. Dr. David Bukusi, a psychiatrist and head of VCT at Kenyatta National Hospital in Kenya, says many HIV-positive people whose rights were violated are not likely to report these crimes because they are fearful.

“A person who is HIV-positive and whose rights have been violated feels that the society set them up to be infected in the first place but the same society does not want to have anything to do with the victim,” explains Bukusi. “So they are not likely to report a human rights violation because they are still in fear. But this could change if the AIDS tribunal is given powers for civil adjudication after the referendum.”

Another issue is lack of commitment from government, says Asunta Wagura, the executive director, Kenya Network of Women with AIDS. Kenya is signatory to the United Nations 2006 Political Declaration on HIV and AIDS that to develop regulations and other measures to eliminate all forms of discrimination against people living with HIV. But this is not put into practice.

“The fact that we don’t have justice nets that we can run to makes it difficult to seek justice even when one knows precisely a right has been violated,” says Wagura. “This is clear lack of commitment on the government side to universal access.”

She adds: “We need to see more uptake and action and good will implemented in terms of action for those that are violated in for instance, lawyers that deal with purely violation of human rights, courts that don’t delay their fight to resolve cases and more highlights of justice administered.”

Meanwhile, Njeri is hopeful that the tribunal will be made functional after Kenya’s referendum on Aug. 4.

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