[2019] KEHAT 69 (KLR)

THE REPUBLIC OF KENYA

IN THE HIV AND AIDS TRIBUNAL AT NAIROBI

HAT CASE. NO. 003 OF 2018

SNW......................................................................CLAIMANT

VERSUS

ASHA GULAM..............................................RESPONDENT

JUDGMENT

1. The Claimant filed the present suit vide Statement of Claim dated 11th May 2018. The Claimant seeks general damages against the Respondent for wrongful and unlawful disclosure of her HIV status.

2. The Claimant made several attempts to serve the Respondent with the Statement of Claim and Mention Notices and Hearing Notices, but the Respondent declined to accept service. It is clear that the Respondent was not interested in participating in the proceedings.

3. The Claimant proceeded to present her case on 26th July 2019 wherein she called one witness.

The Claimant’s Case

4. According to the Claimant, she was living with the Respondent in her house located in Parklands. On 17th February 2018, the Respondent rang the bell to the Claimant’s home.

5. The Claimant opened the door, the Respondent did not enter but stood at the doorway and demanded her clothes and personal items. The Claimant, however, asked the Respondent to return the spare keys to her house before she could give her the said clothes and personal items.

6. The Respondent started hurling insults at the Claimant, which incident happened in the presence of her son and one of her friends, RW (CW2). The Claimant alleges that the Respondent said the Claimant was going to die since she was HIV positive.

7. The Claimant alleges that she did not disclose her status to the Respondent and she was surprised to learn that the Respondent knew about her status. The Claimant later on found out that the Respondent was living with her next door neighbour, one Agnes Yego, who had at one time insulted the Claimant and disclosed her HIV status.

8. At the hearing of the Claimant’s case, CW2, RW testified that on 17th February 2019, she visited the Claimant at her home in Parklands, Nairobi. She stated that the Claimant had just lost her father and she went to console her. It is during that visit that she heard someone bang the door. The Claimant opened the door and she witnessed the Respondent demand her belongings. She, thereafter, heard the Respondent shout the following words:-

“Give me my things. You are a bad person no wonder you don’t get along with your son. You cannot get along with anyone. You are a bad person. You are pretending yet you will die of HIV.”

9. CW2 confirmed that all along she did not know of the Claimant’s HIV status until the same was disclosed to her by the Respondent’s utterances.

10. The Claimant thus filed the current claim at the Tribunal for breach of confidentiality and abuse of her right to human dignity and privacy by the Respondent, for disclosing her HIV status without her consent.

11. She claimed that the Respondent had violated her rights in the following manner: Disclosing her private and confidential information without her consent; Disclosing her HIV status to unauthorized persons; Failing to protect and safeguard her private and confidential information; Stigmatizing and discriminating her due to her HIV status; Failing to protect her dignity and health status; and causing the Claimant emotional and psychological pain, distress and suffering.

Issues

(i) Whether there was breach of confidentiality from the unlawful disclosure of the Claimant’s HIV status by the Respondent?

(ii) Who shall bear the costs of the suit?

Determination

Whether there was breach of confidentiality from the unlawful disclosure of the Claimant’s HIV status by the Respondent.

12. The Claimant contends that the disclosure of her HIV status by the Respondent violates her rights to privacy and confidentiality, both under Section 22 of the HIV and AIDS Prevention and Control Act, 2006 and Articles 27, 28, 29 &31 of the Constitution of Kenya. The Claimant further contends that this unwary disclosure of her HIV status has caused her emotional and psychological pain, loss and suffering.

13. In the context, the right to privacy and confidentiality in relation to one’s HIV status is provided under Section 22 of the HIV and AIDS Prevention and Control Act, 2006, (hereinafter HAPCA) which provides as follows;

(1) No person shall disclose any information concerning the result of an HIV test or any related assessments to any other person except—

(a) with the written consent of that person;

14. The said Section of HAPCA emphasizes on the right to privacy as regards a person’s HIV status and, prohibits against disclosure of any information concerning one’s HIV status to any other person, except in certain circumstances and particularly if written consent has been granted.

15. The import of the right to privacy as regards a person’s HIV status was discussed in the Constitutional Court case of NM and Others v Smith and another (2007) ZACC 6, where the Court held that;

“… it was imperative and necessary that all private and confidential medical information be protected against unauthorized disclosure…”

16. We agree with the exposition of the law above and add that Section 22 of HAPCAmust be understood in this context – it protects against the unnecessary revelation of information relating to the HIV status of a person. Such information forms part of a person’s private affairs, which disclosure can potentially cause mental distress and injury to a person and there is thus need to keep such information confidential. Taken in that context, the right to privacy in relation to a person’s HIV status protects the very core of the personal sphere of an individual and basically envisages the right to live one’s own life with minimum interference and without the risk of stigmatization, discrimination and rejection by family, friends and the community.

17. To this end, therefore, we find that Section 22 of the Act prohibits disclosure of information concerning a person’s HIV status or any information that directly identifies a person to whom HIV test/status relates. Any disclosure would therefore violate the person’s confidentiality as stipulated under Section 22 of the Act and thus a violation of the right to privacy.

18. Further to the above, in determining whether there was a violation of the right to privacy, Honourable Justice Isaac Lenaolain the case ofKenyaLegal and Ethical Network on HIV & AIDS (KELIN) & 3 others v Cabinet Secretary Ministry of Health & 4 others [2016] eKLR, quoted with approval the Constitutional Court of South Africa in the case of Mistry v Interim National Medical and Dental Council of South Africa (1998) (4) SA 1127 (CC)where it was stated that:

“In order to determine whether there is a violation of the right to privacy, the Court ought to take into account the fact; (i) whether the information was obtained in an intrusive manner, (ii) whether it was about intimate aspects of an applicants’ personal life; (iii) whether it involved data provided by an applicant for one purpose which was then used for another purpose and (iv) whether it was disseminated to the press or the general public or persons from whom an applicant could reasonably expect that such private information would be withheld”.

19. With these principles in mind, the question therefore is whether there is a violation of the Claimant’s right to privacy in the present instance and in that regard. The Claimant’s claim is that the Respondent unlawfully and without her consent, disclosed her HIV status to her friend and potentially her neighbours who did not previously know her status, which actions subjected her to stigma and discrimination.

20. CW2, RW, who is a close friend to the Applicant states that indeed she was not aware of the Applicant’s HIV status, until the same was unwarily disclosed to her by the Respondent. Despite being served with the Statement of Claim, the Respondent declined to participate in these proceedings and therefore, CW2’s evidence and that of the Claimant remains uncontroverted.

21. Further, according to the Claimant, there is no evidence that the Claimant ever disseminated the information concerning her HIV status to the Respondent. However, regardless of the manner in which this information became known by the Respondent, it is not disputed that the Claimant did not consent for the dissemination of the same to other 3rd parties.

22. From the foregoing, we note that Section 22 of the Act has endeavoured to protect the disclosure of a person’s HIV status or any other related information in the aforesaid manner and the Respondent’s unwarranted disclosure of the same therefore very clearly violates the Claimant’s right to privacy.

Having found as we have, we note that in addition to the claimed violation of the Claimant’s right to privacy underSection 22 of the Act the Claimant also alleges violation of her Constitutional rights to privacy and confidentiality as enshrined in Article 27, 28, 29 & 31 of the Constitution of Kenya.

23. In that context, the right to privacy is provided for under Article 31of the Constitution in the following terms:

“Every person has the right to privacy, which includes the right not to have-

(a) their person, home or property searched;

(b) their possessions seized;

(c) information relating to their family or private affairs unnecessarily required or revealed; or

(d) the privacy of their communications infringed.”

24. In the case of Roshaanara Ebrahim v Ashleys Kenya Limited & 3 others [2016] eKLR, Honorable Edward M. Muriithi. Jin dealing with informational privacy, an aspect protected under Article 31 (c) of the Constitution of Kenya, quoted with approval the learned authors of “The Bill of Rights Handbook, 2005” by Iain Currie and John de Waal,where in considering the decision of Mistry v. Interim National Medical and Dental Council of South Africa 1998 (4) SA 1127 (CC), Iain Currie and John de Waal write as follows;

“This is an interest in restricting the collection, use and disclosure of private information… These interests can readily be accommodated under the value of dignity since publication of embarrassing information, or information which places a person in false light, is most often damaging to the dignity of the person. But the right to privacy guarantees control over all private information and it does not matter whether the information is potentially damaging to a person’s dignity or not…”

25. We would agree and add that the protection of informational privacy must serve a lawful purpose of the preservation of a person’s dignity. Confidentiality is therefore crucial to persons living with HIV/AIDS because HIV infection is associated with sexual and drug related activities and as such disclosure of one’s HIV status can expose HIV Positive individuals to stigmatization, discrimination and rejection by family, friend and community.

26. However, the High Court has pronounced itself on the jurisdiction of this tribunal in Avery (E.A) Limited .vs. J.M.M and another (2018). We do not have the requisite jurisdiction to make a determination on whether the Claimants rights under the Constitution have been violated or not. We therefore decline the invitation to do so and limit ourselves to the Claimants rights under HAPCA.

Conclusion

27. We have found that the unwarranted disclosure of the Claimant’s HIV status violated the provisions ofSection 22 of the HIV and AIDS Prevention and Control Act, 2006.

28. Having held as above, the Claim is determined in the following terms:

a) A declaration is hereby issued that the disclosure of the Claimant’s HIV status by the Respondent was wrongful and unlawful and amounts to violation of provisions of Section 22 of the HIV and AIDS Prevention Control Act;

b) Judgment is hereby entered in favour of the Claimant against the Respondent for a sum of Kenya Shillings Two Hundred and Fifty Thousand (Kshs. 250,000/=) byway of general damages.

c) That the above sum shall attract interest at court rates from date of filing suit until payment in full.

d) The costs of the suit be borne by the Respondent.

Orders accordingly.

DATEDANDSIGNED AT NAIROBI THIS 18TH DAY OF OCTOBER, 2019.

DELIVERED AND SIGNED AT NAIROBI THIS 18TH DAY OCTOBER, 2019.

…………….………..…………..

HELENE NAMISI (CHAIRPERSON)

……….……………………………

MELISSA NGANIA

…….…………………………...

TUSMO JAMA

………………………………………

J.T. TOROINET SOMOIRE

………………….…………………....

DR. MARYANNE NDONGA

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ABDULLAHI DIRIYE

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DOROTHY JEMATOR