Laws, Policies and the Right to Privacy for People living with HIV in Kenya

Abstract

Despite significant scientific advancement in curbing the scourge of HIV/AIDS, the epidemic continues to register incredible resilience across various fractions of the society. It emerges that human rights abuses partly explain the HIV pandemic and increase in its impact. To this end, Kenya has enacted laws and policies and encouraged practices that support rights for persons who are at risk of HIV or Living with HIV. However, given concerns of abuse, stigma, discrimination and violations of the right to privacy are still reported by PLHIV. This study had three objectives; first, to examine the right to privacy of HIV/AIDS as provided for by law; secondly, to discuss the types of breaches PLHIV face in relation to the right to privacy in Kenya; thirdly, to interrogate the effects of violating the right to privacy for PLHIV. The study poses the argument of self-determination/autonomy under the theoretical framework, which PLHIV reclaim their power to decide the way their personal information relating to their health status should be handled. The control they have on this information in terms of who can access or even use it. Methodologically, the study was a desk review utilizing secondary data to address its objectives which were analysed based on key themes. The study found out that despite existence of laws protecting the right to privacy in Kenya, inadequate implementation of these laws contribute to the continuous violation of this right. Additionally, lack of implementation of certain laws has also led to violation of the right to privacy. Further, violation on the ground of preserving public health that can be used by the government to violate the right to privacy for PLHIV. Yet another reason is existence of gaps in certain laws that do not forbid pre- employment testing which violates the right to privacy and discriminate against PLHIV. Finally, inconsistencies in National Guidelines which previously were anonymous but currently introduced name based referrals in identifying PLHIV. Based on these finding, the study recommends a comprehensive review of the legal frameworks in the country that protect the right to privacy and addressing obstacles that hinder their full implementation. In addition, healthcare workers need to be trained on how to protect and promote the right to privacy for PLHIV since they are often the first contact in provision of healthcare service provision.