The HIV and AIDS Tribunal of Kenya

Established under Section 25 of the HIV Prevention and Control Act of 2006, the HIV and AIDS Tribunal of Kenya is the only HIV-specific statutory body in the world with the mandate to adjudicate cases relating to violations of HIV-related human rights. Yet, very limited research has been done on this tribunal. Based on findings from a desk research and semi-structured interviews of key informants conducted in Kenya, this article analyzes the composition, mandate, procedures, practice, and cases of the tribunal with the aim to appreciate its contribution to the advancement of human rights in the context of HIV. It concludes that, after a sluggish start, the HIV and AIDS Tribunal of Kenya is now keeping its promise to advance the human rights of people living with and affected by HIV in Kenya, notably through addressing barriers to access to justice, swift ruling, and purposeful application of the law. The article, however, highlights various challenges still affecting the tribunal and its effectiveness, and cautions about the replication of this model in other jurisdictions without a full appraisal. Patrick Michael Eba, LLM, MA, is senior human rights and law adviser at the Joint United Nations Programme on HIV/AIDS (UNAIDS). He is a PhD Candidate at the School of Law, University of KwaZulu-Natal (South Africa). Please address correspondence to the author c/o Patrick Eba, UNAIDS, 20 Avenue Appia, Geneva, Switzerland. Email: [email protected]. Competing interests: None declared. Copyright: © Eba. This is an open access article distributed under the terms of the Creative Commons Attribution Non-Commercial License (http://creativecommons.org/licenses/by-nc/3.0/), which permits unrestricted non-commercial use, distribution, and reproduction in any medium, provided the original author and source are credited. Health and Human Rights Journal HHr HHR_final_logo_alone.indd 1 10/19/15 10:53 AM P. M. Eba / papers,169-180 170 J U N E 2 0 1 6 V O L U M E 1 8 N U M B E R 1 Health and Human Rights Journal Introduction Kenya has the fourth-largest HIV epidemic globally.1 Some 1.6 million people were living with HIV in the country in 2013, of whom 100,000 were infected that year alone.2 Since the country identified its first AIDS case in 1984, HIV has remained a serious public health concern that has claimed hundreds of thousands of lives and orphaned millions of children.3 Despite recent progress in the response to the epidemic in Kenya, pervasive stigma, discrimination, and human rights violations associated with HIV remain serious challenges.4 To address these challenges, Kenya adopted the HIV and AIDS Prevention and Control Act (HAPCA) in 2006.5 A defining feature of HAPCA is the establishment of the HIV and AIDS Tribunal (hereinafter “tribunal”).6 The tribunal’s role is to “determine complaints arising out of any breach” of HAPCA. Unlike the 26 other sub-Saharan African countries that have adopted HIV-specific legislation, Kenya, through the creation of the tribunal, sought to address the often forgotten yet critical issue of enforcement of its HIV legislation.7 The tribunal was established as a statutory body to ensure the protection of human rights in the context of HIV within the limits described by HAPCA.8 While the tribunal is often lauded as a tool for access to justice, limited research has been done on this mechanism.9 Beyond the curiosity that it may generate as the first and only HIV-specific judicial body in the world, is the tribunal an effective mechanism for ensuring the implementation and enforcement of HIV-related human rights? Several elements are generally taken into consideration when assessing the effectiveness of judicial and quasi-judicial bodies, including the ability to compel parties to appear before them and to comply with their decisions, the accessibility to the court for complainants, the timeline for decision, and the extent to which the decisions are based on sound interpretation of the law.10 For people living with HIV and their advocates, key concerns relating to access to justice and effective adjudication include court procedures that do not maintain confidentiality, limited knowledge of HIV and the legal issues that it raises within the judiciary, and lack of sensitivity to people living with HIV.11 This article therefore assesses whether the HIV and AIDS Tribunal of Kenya addresses some of these challenges to access to justice and to the judicial protection of human rights in the context of HIV. In doing so, the article describes and discusses the composition, procedures, and practice, as well as a key decision of the tribunal. This study is mainly based on a desk analysis of primary and secondary materials relating to HAPCA and the tribunal. The desk research was completed through semi-structured interviews with 11 key informants, conducted in Nairobi, Kenya, from August 20-29, 2014. Further information was also sought through email exchanges and phone interviews with two additional informants in September 2015. The interviewees included key informants involved in the development of HAPCA or in the work of the tribunal, such as the current and former chairpersons of the tribunal, the executive director of National Empowerment Network of People Living With HIV and AIDS in Kenya (NEPHAK), a member of the Commission for the Implementation of the Constitution, a judge of the High Court and the executive director of Kenya Ethical and Legal Issues Network on HIV and AIDS (KELIN). The research was limited by challenges in accessing tribunal decisions which were not publicly available. Furthermore, while the author was able to interview members of organizations that have supported complainants before the tribunal, he was not in a position to directly interview individual