High court set to determine confidentiality of HIV Data

By Claire Wanja

The High Court in Nairobi is Friday expected to deliver judgment in Petition filed in 2015 by KELIN, Children of God Relief Institute (Nyumbani), James Njenga Kamau and Millicent Kipsang to challenge an unconstitutional directive by the President.

In the unconstitutional directive, the President directed County Commissioners to work with County Directors of Education and Medical Services in the collection of up-to-date data and preparation of a report on all school going children who are HIV positive, information on their guardians, number of expectant mothers who are HIV positive and number of breastfeeding mothers who are HIV positive.

The judgment will be instrumental in shaping the future discourse on issues pertaining to the privacy and confidentiality of data of persons living with HIV.

This landmark judgment if successful, will affect the future privacy and confidentiality guidelines. Relatedly, the judgment is expected to provide proper guidance on presidential powers in relation to issuing of directives, more so where such directives are likely to lead to infringement of constitutional rights.

In this Petition, KELIN and the other petitioners have asked the court to declare that the particular presidential directive breaches constitutional rights of petitioners; that the court to grant an order compelling the respondents to destroy all data in their possession, collected as a result of the directive, linking names of persons living with HIV and their HIV status, within a period of 14 days. In the alternative, the court has been asked to direct them to codify the names collected as a result of the directive, and ensure that they are stored in a manner that does not link their names and their HIV status in a public document.

And finally that the court to grant an order compelling the 1st respondent to put in place within 90 days of the court’s judgment the privacy guidelines,  in form of regulations as required by Section 20 of the HIV & AIDS  Prevention and Control Act, on the collection and store rage of data  relating to HIV.