HIV and AIDS Prevention and Control Act

Section 1. Short title Section This Act may be cited as the HIV and AIDS Prevention and Control Act.

Section 2. Interpretation Section a medical practitioner or dentist registered under the Medical Practitioners and Dentists Act ( Cap. 253 );

Section 3. Object and purpose of Act Section promote public awareness about the causes, modes of transmission, consequences, means of prevention and control of HIV and AIDS;

Section 4. HIV and AIDS education and information Section 4(1) The Government shall promote public awareness about the causes, modes of transmission, consequences, means of prevention and control of HIV and AIDS through a comprehensive nationwide educational and information campaign conducted by the Government through its various Ministries, Departments, authorities and other agencies. Section 4(2)(a) employ scientifically proven approaches; Section 4(2)(b) focus on the family as the basic social unit; Section 4(2)(c) encourage testing of individuals; and Section 4(2)(d) be carried out in schools and other institutions of learning, all prisons, remand homes and other places of confinement, amongst the disciplined forces, at all places of work and in all communities throughout Kenya. Section 4(3) In conducting the educational and infomation campaign referred to in this section, the Government shall collaborate with relevant stakeholders to ensure the involvement and participation of individuals and groups infected and affected by HIV and AIDS, including persons with disabilities.

Section 5. HIV and AIDS education in institutions of learning Section 5(1)(a) where the integration of HIV and AIDS education is not appropriate or feasible at any level, the Ministry responsible for education shall design modules of HIV and AIDS prevention and control; Section 5(1)(b) such integration shall not be used for the sale or distribution of birth control devices; Section 5(1)(c) the formulation and adoption of the appropriate course content, scope and methodology at each educational level shall be determined after consultation with the relevant stakeholders. Section 5(2) The Ministry responsible for education, in consultation with the Ministry, shall ensure that every teacher or instructor of an HIV and AIDS prevention and control course undet this section is adequately trained and duly qualified to teach such course.

Section 6. HIV and AIDS education as a healthcare service Section 6(1) HIV and AIDS education and information dissemination shall form part of the delivery of healthcare services by healthcare providers. Section 6(2) For the purposes of subsection (1), the Government shall ensure training of healthcare providers on proper information dissemination and education on HIV and AIDS, including post-exposure prophylaxis for prevention of transmission. Section 6(3) The training of healthcare providers under this section shall include education on HIV-related ethical issues such as confidentiality, informed consent and the duty to provide treatment. Section 6(4) The Cabinet Secretary for the time being responsible for matters relating to health shall, in collaboration with relevant stakeholders, provide guidelines for post exposure prophylaxis.

Section 7. HIV and AIDS education in the workplace Section 7(1)(a) employees of all Government Ministries, Departments, authorities and other agencies; and Section 7(1)(b) employees of private and informal sectors. Section 7(2) The information provided under this section shall cover issues such as confidentiality in the work-place and attitudes towards infected employees and workers.

Section 8. HIV and AIDS information in communities Section Every local authority, in collaboration with the Ministry, shall conduct an educational and information campaign on HIV and AIDS within its area of jurisdiction.

Section 9. Testing of donated tissue Section 9(1) A person who offers to donate any tissue shall, immediately before such donation, undergo an HIV test. Section 9(2) No health institution shall accept a donation of any tissue unless the donor thereof has undergone an HIV test pursuant to subsection (I) and the result thereof is negative. Section 9(3) Notwithstanding the provisions of subsections (1) and (2), the proposed recipient of donated tissue or his immediate relatives shal1 have the right to demand a second HIV test on such tissue before a transplant or other use of the tissue and such test shall, except in the case of emergencies, be carried out.

Section 10. Testing of donated blood Section 10(1) All donated blood shall, as soon as reasonably practicable after donation, be subjected to an HIV test. Section 10(2) Any blood tested under subsection (1) which is found to be HIV positive shal1 be disposed of in accordance with the prescribed guidelines on the disposal of medical waste as soon as reasonably practicable after such result is obtained.

Section 11. Guidelines on surgical and similar procedures Section 11(1)(a) precautions against HIV transmission during surgical, dental, delivery, embalming and similar procedures; and Section 11(1)(b) the handling and disposal of cadavers, body fluids or wastes of persons with HIV. Section 11(2) The Cabinet Secretary shall, at all times, ensure the provision of protective equipment such as gloves, goggles and gowns to all healthcare providers and other personnel exposed to the risk of HIV infection. Section 11(3) The Cabinet Secretary shall, at all times, ensure the provision of post exposure prophylaxis to healthcare providers and other personnel exposed to the risk of HIV infection. Section 11(4) In this section, "Cabinet Secretary" means the Cabinet Secretary for the time being responsible for matters relating to health.

Section 12. Penalty for unsafe practices or procedures Section 12(1) A person who, in the course of his professional practice, knowingly or negligently causes another to be infected with HIV through unsafe or unsanitary practices or procedures contrary to the provisions of this Part, or of any guidelines prescribed hereunder, commits an offence. Section 12(2)(a) in the case of an institution, order the revocation of any business permit or licence in respect thereof; or Section 12(2)(b) in the case of a natural person, order the revocation of licence to practice such person's profession.

Section 13. Prohibition against compulsory testing Section 13(1) Subject to this Act, no person shall compel another to undergo an HIV test. Section 13(2)(a) employment; Section 13(2)(b) marriage; Section 13(2)(c) admission into any educational institution; Section 13(2)(d) entry into or travel out of the country; or Section 13(2)(e) the provision of healthcare, insurance cover or any other service. Section 13(3) Notwithstanding the provisions of subsection (1), a person charged with an offence of a sexual nature under the Sexual Offences Act (Cap. 63A) may be compelled to undergo an HIV test. Section 13(4) A person who contravenes any of the provisions of this section commits an offence.

Section 14. Consent to HIV testing Section 14(1)(a) with the informed consent of that other person; Section 14(1)(b) if that person is a child, with the written consent of a parent or legal guardian of the child: Provided that any child who is pregnant, married, a parent or is engaged in behaviour which puts him or her at risk of contracting HIV may, in writing, directly consent to an HIV test; Section 14(1)(c) a guardian of that person; Section 14(1)(c)(i) a guardian of that person; Section 14(1)(c)(ii) a partner of that person; Section 14(1)(c)(iii) a parent of that person; or Section 14(1)(c)(iv) an adult offspring of that person: Section 14(1)(d) where the person is required to undergo an HIV test under the provisions of this Act or any other written law. Section 14(2)(a) a person who offers to donate any tissue shall be deemed to have consented to the HIV test required under section 9 ; Section 14(2)(b) a person who offers to donate blood shall be deemed to have consented to the HIV test required in respect of such blood under section 10 ; Section 14(2)(c) the person is unconscious and unable to give consent; and Section 14(2)(c)(i) the person is unconscious and unable to give...

Section 15. Provision of testing facilities Section voluntarily request an HIV test in respect of themselves; or

Section 16. Testing centres Section 16(1) No person shall carry out an HIV test except in a testing centre approved by the Cabinet Secretary under this section or in the manner specified under paragraph (d) of subsection (4). Section 16(2) No person shall carry out an HIV test unless such person is a healthcare provider approved by the Cabinet Secretary for that purpose. Section 16(3) No person shall provide pre-test or post-test counselling for the purposes of section 17 unless such person is approved by the Cabinet Secretary under this section. Section 16(4)(a) the standards and the procedure for the approval of testing centres for the purposes of this Act; Section 16(4)(b) the standards and the procedure for the approval of healthcare providers for the purposes of subsection (2); Section 16(4)(c) guidelines for the provision of pre-test and post-test counselling services at such centres, including the standards and the procedure for approval of persons qualified to provide such services; and Section 16(4)(d) guidelines for self testing. Section 16(5) A person who contravenes the provisions of this section or of any regulations made hereunder commits an offence. Section 16(6) In...

Section 17. Pre-test and post-test counseling Section 17(1) Every testing centre shall provide pre-test and post-test counselling to a person undergoing an HIV test and any other person likely to be affected by the results of such test. Section 17(2) The Ministry responsible for matters relating to health shall enhance the capacities of testing centres by ensuring the training of competent personnel to provide the services required by this Act to be provided at such centres.

Section 18. Results of HIV test Section to the tested person;

Section 19. Access to healthcare services Section 19(1) Every health institution, whether public or private, and every health management organization or medical insurance provider shall facilitate access to healthcare services to persons with HIV without discrimination on the basis of HIV status. Section 19(2) The Government shall, to the maximum of its available resources, take the steps necessary to ensure the access to essential healthcare services, including the access to essential medicines at affordable prices by persons with HIV or AIDS and those exposed to the risk of HIV infection.

Section 39. Requirements for research Section No person shall undertake HIV or AIDS related human biomedical research on another person, or on any tissue or blood removed from such person unless such research conforms to the requirements under the Science and Technology Act (Cap. 250) or any other written law for the time in force.

Section 40. Consent to research Section 40(1)(a) with the written informed consent of that other person; or Section 40(1)(b) if that other person is a child, with the written informed consent of a parent or legal guardian of the child. Section 40(2) The person whose consent is sought to be obtained under subsection (1) shall be adequately informed of the aims, methods, anticipated benefits and the potential hazards and discomforts of the research.

Section 41. Anonymous testing Section 41(1) Notwithstanding anything to the contrary in this Act, the Cabinet Secretary for the time being responsible for matters relating to health may prescribe guidelines under which anonymous testing for HIV may be carried out. Section 41(2) Any anonymous testing conducted pursuant to this section shall only be for the purposes of public health.

Section 42. Penalty for unlawful research Section A person who contravenes any of the provisions of this Part commits an offence.

Section 20. Privacy guidelines Section 20(1) The Cabinet Secretary for the time being responsible for matters relating to health may, in regulations, prescribe privacy guidelines, including the use of an identifying code, relating to the recording, collecting, storing and security of information, records or forms used in respect of HIV tests and related medical assessments. Section 20(2) No person shall record, collect, transmit or store records, information or forms in respect of HIV tests or related medical assessments of another person otherwise than in accordance with the privacy guidelines prescribed under this section. [Act No. 6 of 2009 , Sch.]

Section 21. Confidentiality of records Section a request for an HIV test by persons in respect of themselves;

Section 22. Disclosure of information Section 22(1)(a) with the written consent of that person; Section 22(1)(b) if that person has died, with the written consent of that person's partner, personal representative, administrator or executor; Section 22(1)(c) if that person is a child with the written consent of a parent or legal guardian of that child: Provided that any child who is pregnant, married, a parent or is engaged in behaviour which puts other persons at risk of contracting HIV may in writing directly consent to such disclosure; Section 22(1)(d) if that person is unable to give written consent, with the oral consent of that person or with the written consent of the person with power of attorney for that person; Section 22(1)(e) a guardian of that person; Section 22(1)(e)(i) a guardian of that person; Section 22(1)(e)(ii) a partner of that person; Section 22(1)(e)(iii) a parent of that person; or Section 22(1)(e)(iv) an adult offspring of that person; Section 22(1)(f) to a person, being a person approved by the Cabinet Secretary under section 16 , who is directly involved in the treatment or counselling of that person; Section 22(1)(g) for the purpose of an epidemiological...

Section 23. Penalty for breach of confidentiality Section A person who contravenes any of the provisions of this Part or of any guidelines prescribed hereunder commits an offence.

Section 24. Prevention of transmission Section 24(1)(a) take all reasonable measures and precautions to prevent the transmission of HIV to others; and Section 24(1)(b) inform, in advance, any sexual contact or person with whom needles are shared of that fact. Section 24(2) A person who is and is aware of being infected with HIV or who is carrying and is aware of carrying HIV shall not, knowingly and recklessly, place another person at risk of becoming infected with HIV unless that other person knew that fact and voluntarily accepted the risk of being infected. Section 24(3) A person who contravenes the provisions subsection (1) or (2) commits an offence and shall be liable upon conviction to a fine not exceeding five hundred thousand shillings or to imprisonment for a term not exceeding seven years, or to both such fine and imprisonment. Section 24(4) A person referred to in subsection (1) or (2) may request any medical practitioner or any person approved by the Cabinet Secretary under section 16 to inform and counsel a sexual contact of the HIV status of that person. Section 24(5) A request under subsection (4) shall be in the prescribed form. Section 24(6) On receipt of a request...

Section 25. Establishment of the Tribunal Section 25(1)(a) a Chairperson who shall be an advocate of the High Court of not less than seven years' standing; Section 25(1)(b) two advocates of the High Court of not less than five years' standing; Section 25(1)(c) two medical practitioners recognized by the Medical Practitioners and Dentists Board as specialists under the Medical Practitioners and Dentists Act ( Cap. 253 ); and Section 25(1)(d) two persons having such specialized skill or knowledge necessary for the discharge of the functions of the Tribunal. Section 25(2) At least two of the persons appointed under subsection (1)(a), (b) and (c) shall be women. Section 25(3) The quorum for a meeting of the Tribunal shall be the Chairperson and four other members. Section 25(4) All matters before the Tribunal shall be decided by the votes of a majority of the members present. Section 25(5) There shall be paid to the members of the Tribunal such remuneration and allowances as the Cabinet Secretary may in consultation with the Treasury determine. Section 25(6)(a) at the expiration of three years from the date of his appointment; Section 25(6)(b) if he ceases by any reason to be such advo...

Section 26. Jurisdiction of the Tribunal Section 26(1)(a) to hear and determine complaints arising out of any breach of the provisions of this Act; Section 26(1)(b) to hear and determine any matter or appeal as may be made to it pursuant to the provisions of this Act; and Section 26(1)(c) to perfonn such other functions as may be conferred upon it by this Act or by any other written law being in force. Section 26(2) The jurisdiction conferred upon the Tribunal under subsection (1) excludes criminal jurisdiction.

Section 27. Powers of the Tribunal Section 27(1) On the hearing of a complaint or an appeal made pursuant to section 26 , the Tribunal shall have all the powers of a subordinate court of the first class to summon witnesses, to take evidence upon oath or affirmation and to call for the production of books and other documents. Section 27(2) Where the Tribunal considers it desirable for the purpose of minimizing expense or avoiding delay or for any other special reason, it may receive evidence by affidavit and administer interrogatories and require the person to whom the interrogatories are administered to make a full and true reply to the interrogatories within the time specified by the Tribunal. Section 27(3) In its determination of any matter the Tribunal may take into consideration any evidence which it considers relevant to the subject of the matter before it, notwithstanding that the evidence would not otherwise be admissible under the Evidence Act ( Cap. 80 ). Section 27(4) The Tribunal shall have power to summon expert evidence as may be necessary for the discharge of its functions under this Act. Section 27(5) The Tribunal shall have power to award the costs of any proceeding...

Section 28. Disobedience of summons to give evidence,etc. Section refuses or fails to attend at the time and place mentioned in the summons served on him;

Section 29. Enforcement of orders for damages and costs Section 29(1) Where the Tribunal awards damages or costs in any matter before it, it shall, on application by the person in whose favour the damages or costs are awarded, issue to him a certificate stating the amount of the damages or costs. Section 29(2) Every certificate issued under subsection (1) may be filed in the High Court by the person in whose favour the damages or costs have been awarded and, upon being so filed, shall be deemed to be a decree of the High Court and may be executed as such.

Section 30. Rules Section Except as otherwise provided in this Act, the Chief Justice may in consultation with the Chairperson of the Tribunal, and by Notice in the Gazette make rules governing the practice and procedure of the Tribunal having regard to the objectives of this Act.

Section 31. Discrimination in the workplace Section 31(1)(a) denied access to any employmcnt for which he is qualified; or Section 31(1)(b) transferred, denied promotion or have his employment terminated, Section 31(2) Subsection (1) shall not apply in any case where an employer can prove, on application to the Tribunal that the requirements of the employment in question are that a person be in a particular state of health or medical or clinical condition.

Section 32. Discrimination in schools Section No educational institution shall deny admission or expel, discipline, segregate, deny participation in any event or activity, or deny any benefits or services to a person on the grounds only of the person's actual, perceived or suspected HIV status.

Section 33. Restriction on travel and habitation Section 33(1) A person's freedom of abode, lodging, or travel, within or outside Kenya, shall not be denied or restricted on the grounds only of the person's actual, perceived or suspccted HIV status. Section 33(2) No person shall be quarantined, placed in isolation, refused lawful entry or deported from Kenya on the grounds only of the person's actual, perceived or suspected HIV status.

Section 34. Inhibition from public service Section No person shall be denied the right to seek an elective or other public office on the grounds only of the person's actual, perceived or suspected HIV status.

Section 35. Exclusion from credit and insurance services Section 35(1) Subject to this Act, no person shall be compelled to undergo a HIV test or to disclose his HIV status for the purpose only of gaining access to any credit or loan services, medical, accident or Iife insurance or the extension or continuation of any such services. Section 35(2) Notwithstanding the provisions of subsection (1), an insurer, re-insurer or health maintenance organization shall, in the case of life and healthcare service insurance cover, devise a reasonable limit of cover for which a proposer shall not be required to disclose his or her HIV status. Section 35(3) Where a proposer seeks a cover exceedipg the no test limit prescribed under subsection (2) the insurer, reinsurer or health maintenance organization may, subject to this Act, require the proposer to undergo an HIV test. Section 35(4)(a) the proposer shall, at his own expense, enter into such agreed treatment programme with the insurer as may be prescribed by the Cabinet Secretary in consultation with Commissioner for Insurance; or Section 35(4)(b) the insurer may impose a reasonable additional premium or lien to the benefits ordinarily purchas...

Section 36. Discrimination in health institutions Section No person shall be denied access to healthcare services in any health institution, or be charged a higher fee for any such services, on the grounds only of the person's actual, perceived or suspected HIV status.

Section 37. Denial of burial services Section A deceased person who had AIDS, or was known, suspected or perceived to be HIV-positive shall not be denied access to any burial services on the grounds only of their said status.

Section 38. Penalty for discriminatory acts and practices Section A person who contravenes any of the provisions of this Part commits an offence.

Section 43. General penalty Section A person convicted of an offence under this Act for which no other penalty is provided shall be liable for imprisonment for a tenn not exceeding two years or to a fine not exceeding one hundred thousand shillings or to both.

Section 44. Cognizable offences Section All offences under this Act shall be cognizable to the police.

Section 45. Regulations Section for prescribing anything required by this Act to be prescribed; or

Section 46. Act to supersede other Acts Section Where the provisions of this Act or any regulations made hereunder are inconsistent with the provisions of any other written law, the provision of this Act or of such regulations shall prevail.