[2015] KEHAT 5 (KLR)

CON & another v Africa Medical and Research Foundation (Tribunal Case 006 of 2013) [2015] KEHAT 5 (KLR) (23 October 2015) (Judgment)

Neutral citation: [2015] KEHAT 5 (KLR)

Republic of Kenya

In the HIV and AIDS Tribunal

Tribunal Case 006 of 2013

JO Arwa, Chair

October 23, 2015

Between

CON & another

Claimant

and

Africa Medical and Research Foundation

Respondent

Judgment

Jurisdiction – tribunals - HIV and AIDS Tribunal – whether the tribunal had jurisdiction to entertain cases involving violation of fundamental rights and freedoms - whether the disclosure of information in the brochure impaired the claimants’ right to privacy and hence amounted to a violation of that right under common law - whether the tribunal could assume jurisdiction over matters that took place long before the Constitution of Kenya, 2010 and the HIV and AIDS Prevention and Control Act, 2006 came into force – validity of the claimant’s statement of claim – HIV and AIDS Prevention and Control Act, 2006, section 31; Employment Act, 2007, section 87Constitutional Law - fundamental rights and freedoms - right to privacy - whether the information of and concerning the claimants’ HIV status published in the respondent’s brochure constituted private facts or confidential information, hence wrongful in the circumstances - whether the disclosure of information in the brochure impaired the claimants’ right to privacy and hence amounted to a violation of that right under common law - whether the claimants consented either verbally or by conduct to the publication of their HIV status in the brochure - whether the claimants were entitled to the reliefs sought - Constitution of Kenya 2010, article 31 tort – damages – general damages - juridical basis of the claimants’ case - whether the disclosure of information in the brochure impaired the claimants’ right to privacy and hence amounted to a violation of that right under common law - whether the HIV & AIDS Tribunal had jurisdiction to entertain an action founded on the common law tort of defamation – whether the respondent breached a statutory duty and whether the claimants were entitled to general damages Brief Facts:The 1st and 2nd claimants were married living in Kibera as husband and wife. They filed a suit against the Africa Medical and Research Foundation (the respondent) seeking general damages with interest and any other relief as the HIV and AIDS Tribunal deemed fit to grant. The claimants were involved in various projects offering counseling services to people living with HIV and AIDS within the Kibera Community.28The 1st claimant alleged that sometime in November 2012, whilst in the course of employment with the respondent, he was instructed to visit the respondent’s communication office at the head offices where a program officer asked the claimant to share with her the story of his life and health.That during the conversation, neither the Programs Manager nor any other agent of the respondent informed the 1st claimant that his story would be published in the respondent’s information, education, and communication materials in the future. During the World AIDS Day on December 1, 2012, the respondent published the information, education and communication materials, being brochures with the 1st and 2nd claimants’ life and health stories as persons living with HIV. The claimants contended that the respondent had published information in their brochures relating to their HIV status without their consent, amounting to a breach of confidentiality and causing them psychological and emotional injury.In response, the respondents contended that the publication of the claimants’ HIV status in was done with their consent. According to the respondent, the HIV status of the claimants was not confidential as the claimants openly demonstrated that there was no stigma associated with disclosing their status or danger of ill health if a person living with HIV took proper care of themselves.As a result, they were a source of encouragement for those who were living with HIV and an example that they could get on with their lives through taking the right medication and eating the recommended foods for good health. It was in this spirit that the publication was relevant within the broad objectives of the World AIDS Day. The respondent further contended, inter alia, that the suit was instituted on malicious grounds since the respondent had failed to renew the 1st claimant’s contract of employment.

The Main Issues For Determination By The Tribunal Were: i.What was the juridical basis of the claimants’ case and whether the HIV & AIDS Tribunal had jurisdiction to entertain an action founded on the common law tort of defamation;

ii.Whether the disclosure of information in the brochure impaired the claimants’ right to privacy and hence amounted to a violation of that right under common law;

iii.Whether the information of and concerning the claimants published in the brochure constituted private facts or confidential information, hence wrongful;

iv.Whether the publication of the brochure was done with the knowledge of its wrongfulness, and/ or whether the publication was done with intention to harm the claimants;

v.Whether there was malice in the publication of the claimants’ HIV status in the brochure and whether the presence or absence of malice had any effect upon the claimants’ entitlement to the reliefs sought;

vi.Whether the claimants consented either verbally or by conduct to the publication of their HIV status in the brochure, and whether the alleged verbal and/or implied consent by conduct met the requisite legal standard;

vii.Whether the HIV status of the claimants was in the public domain and whether that ipso facto affected their entitlement to the reliefs sought;

viii.Whether the claimants’ decision to institute a suit against the respondent was actuated by malice caused by the refusal to renew the 1st claimant’s contract of employment, and whether that had any effect to their entitlement to the reliefs sought;

ix.Whether the respondent breached a statutory duty and whether the claimants were entitled to the reliefs sought;

x.What was the quantum of damages payable?

Held: 1. Although the claimants claimed for general damages, interest on the said damages and any other relief the court deemed fit to grant, they did not indicate the juridical basis for their claim. Nonetheless, owing to the provisions of the Constitution of Kenya and the HIV & AIDS Prevention and Control Act, the claimants’ claim could be grounded on any of the following juridical bases, which governed the subject matter of the claimants’ complaints:a.The common law tort of interference with the claimants’ privacy;b.The common law tort of breach of statutory duty; to wit duties imposed under section 3(protection of liberties and rights of persons living with HIV and AIDS, including right to privacy) and section 22 (prohibition of disclosure of HIV information without written consent of concerned persons) of the HIV & AIDS Prevention and Control Act;c.The common law tort of defamation;d.The duty to uphold and protect the constitutionally guaranteed rights to dignity (article 28), privacy (article 31) and reputation (article 33(3) of the Constitution).Article 169 of the Constitution and section 3 of the Judicature Act provided for the establishment and jurisdiction of courts. Accordingly, tribunals established by Acts of Parliament (such as the HIV & AIDS Tribunal) had the jurisdiction to apply common law and enforce the rights donated thereby. Thus the HIV and AIDS Tribunal had jurisdiction to enforce violation of the claimants’ rights under the common law tort of interference with the right to privacy and the common law tort of breach of statutory duties.

2. Regarding the possibility of grounding their suit on the violations of the constitutional provisions of articles 28 (dignity), 31 (privacy) and 33(3) (reputation), the tribunal had no jurisdiction to enforce violations of those rights. Tribunals and all the other subordinate courts had no jurisdiction to interpret the Constitution or to enforce violation of constitutionally guaranteed rights until such a time as Parliament would enact a legislation to give them that power under article 23(2) of the Constitution. Therefore, it was not necessary to consider whether the matters complained about violated the provisions of articles 28, 31 and 33(3) of the Constitution, but whether those matters violated the claimants’ rights under common law.

3. To succeed in an action for breach of the common law right to privacy, a claimant had to prove the following:a.The impairment of the claimant’s privacy;b.The wrongfulness of the act;c.The intention to cause harm.The publication of the claimants’ HIV status in the brochure impaired the claimants’ right to privacy under common law. Further, the publication of the claimants’ HIV status in the brochures without their knowledge and/or consent and distributing them in the respondent’s clinics was wrongful. As to whether there was intention to cause harm to the claimants, neither parties addressed the issue. However, the provisions of sections 112 and 119 of the Evidence Act coupled with the common law presumption of intent appeared to impose the burden of proof on that issue upon the respondent who therefore had to prove that they did not intend to violate the claimants’ rights.

4. The allegation by the respondent that the claimants’ HIV status was already in the public domain was not proved. What was proved was the fact that the claimants were peer counselors who volunteered to share their HIV status within Kibera Community with persons who were already living with HIV and AIDS. There was no evidence that the claimants had shared their HIV status outside the Kibera Community. By publishing the claimants’ information in a brochure and distributing the brochure in their clinics, it was the respondent’s action that brought such information, for the first time, into the public domain, in clear violation of the claimants’ privacy rights.

5. The respondent’s argument that the 1st claimant had agreed to an interview knowing that the information shared in the interview could be published meant that he had impliedly consented by conduct to the publication was superficial.

6. A distinction had to be drawn between consent to share the claimants’ medical information with the respondent, and consent to have the information (which was now in possession of the respondent) shared with the public at large. Even if the 1st claimant knew or ought to have known that the information given would be published, he was nevertheless entitled to assume that consent would be sought prior to such subsequent publication because that was an explicit requirement of law. It would be unreasonable to expect the 1st claimant to operate on the basis of the assumption that the respondent would violate clear provisions of the law, given the status and experience of the respondent.

7. Even if the 1st claimant had consented to the publication of their HIV status in the brochure as alleged that would not justify the publication of the 2nd claimant’s HIV status without her knowledge or consent. The respondent did not deny that no consent was obtained from the 2nd claimant yet her HIV status was published.

8. The participation by the claimants in distributing the brochures on World AIDS Day could not operate to justify the publication of their HIV status in the brochures.

9. The respondent did not derive any economic benefit from the publication. The publication was made for a benevolent purpose; to wit, assisting in the fight against HIV stigma and discrimination.However, the rights of the claimants were violated by an institution which had been engaged in HIV and AIDS advocacy for several years and with presence in several countries, and which must be presumed to have known that the aforesaid benevolent purposes could very easily be achieved without violating the rights of the claimants. The claimants consent to the publication should have been sought before the publication and if the claimants were unwilling to give their consent as aforesaid, then other peer counselors would have been approached to give their consent.

10. The claimants’ right to privacy ought to be balanced against the public’s right to eradicate HIV stigma and discrimination. Similarly, the motive behind the violation ought to be weighed against what it would take to avoid the violation. In the instant case, all that the respondent needed to do to avoid the violation, was simply to seek the claimants’ consent (and if that was refused) then to approach other HIV/AIDS peer counselors. A right and sensitive approach to HIV pandemic, which was what Kenya was committed to, required that all reasonable measures be taken to uphold and protect the rights of persons living with or affected by HIV and AIDS. The pursuit of a socially beneficial interest did not per se justify violation of the rights of persons living with or affected by HIV and AIDS.

11. Section 3(b) of the HIV & AIDS Control and Prevention Act did not just provide full protection to the human rights and civil liberties of persons living with HIV and/or AIDS but specifically guaranteed their right to privacy. To guarantee something meant to secure it, or to give a formal or solemn promise or assurance regarding it.Therefore, the HIV & AIDS Control and Prevention Act gave a formal or solemn promise or assurance to every person suspected or known to be infected with HIV that all his/her human rights and civil liberties would be protected in full, and that their privacy would be guaranteed. The institutions created by the HIV & AIDS Control and Prevention Act - which include the HIV and AIDS Tribunal - were intended to facilitate the fulfillment of the above promise. Section 3(b) of the HIV & AIDS Control and Prevention Act therefore imposed a duty on everybody to respect and uphold the human rights and civil liberties of all persons infected HIV or suspected to be living with the virus, and specifically to abstain from violating their right to privacy. It also imposed a duty on the Tribunal to guarantee the full protection of the human rights and civil liberties of persons living with HIV and AIDS and especially their right to privacy.

12. The matter before the tribunal was a defamatory claim, a matter outside the jurisdiction of the tribunal. Besides, the allegations regarding the alleged errors in the brochure and their effect upon the claimants were not pleaded. Defamatory matters could not be countenanced by the tribunal because the respondent was not accorded the opportunity to respond to them in their pleading.

13. Sections 26(1) and 27 of the HIV & AIDS Control and Prevention Actwhich vested the tribunal with jurisdiction to hear and determine complaints arising from any breach of the provisions of the HIV & AIDS Control and Prevention Act as well as “to hear and determine any matter that may be referred to it”, conferred very broad powers. That phrase “to hear and determine any matter that may be referred to it” in section 27(1)(b) seemed to clothe the Tribunal with jurisdiction to entertain virtually any case referred to it as long as it was directly or indirectly related to a matter dealt with in the Act. Section 27(1) (b) ought to be interpreted sensibly. It could not be interpreted literally, but purposively having regards to the objectives and purposes of the HIV & AIDS Control and Prevention Act as set out in section 3 thereof.

14. The tribunal had jurisdiction to deal with direct violations of provisions of the Act (the letter of the Act) as well as the indirect violations of the objectives and purposes of the Act as spelt out in section 3 thereof (the spirit of the Act). Defamation claims did not appear anywhere among the two broad categories mentioned. For that reason, the Tribunal declined to assume any jurisdiction over what was a defamatory claim. Having dismissed the claim for defamation, it was not necessary to consider the question whether the publication was actuated by malice because such arguments were irrelevant to the grounds of relief already considered.

15. The respondent’s argument that the claimants were acting maliciously by instituting the claim to enrich themselves unjustly was irrelevant. Such an argument had no bearing on the claimants’ entitlement to the relief sought. The only reason why the tribunal could dismiss the claimants’ suit was because they were not entitled to the reliefs sought and not because they were acting in bad faith or pursuant to an improper motive. Besides, the alleged bad faith, improper motive or malice was not proved as no evidence whatsoever was furnished in proof of the same. The respondent merely presented evidence of suspicion and nothing more.

16. Similarly, the respondent’s allegation that the claimants delayed in filing the suit was both lacking in merit and also irrelevant. The suit was filed less than a year from the alleged violations. The tribunal could not ignore the fact that the claimants were poor persons living within Kibera slums and such persons could not be expected to marshal sufficient resources to institute a lawsuit immediately. Besides, the suit was not barred by the Limitation of Actions Act, and since no interlocutory relief was sought, the argument that the claimant delayed in filing the suit were simply irrelevant to the extent that they have absolutely no bearing on the question whether the reliefs sought should be granted or not.

17. On quantum of damages, the claimants’ rights were violated and the respondent was liable to compensate them in damages. A sum of Kshs 1,500,000/= awarded as damages to each of the claimants in the suit; interest at the rate of 12% and costs of the suit.

DATED, SIGNED, AND DELIVERED AT NAIROBI ON THIS 23RDDAY OF OCTOBER 2015. HON. JOTHAM O. ARWACHAIRPERSONHIV AND AIDS TRIBUNAL.