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Wednesday, March 22, 2017
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Nature of the Case

This case concerns a directive issued by President Uhuru Kenyatta ordering the collection of data and the preparation of a report pertaining to school-going children, guardians, and expectant and breastfeeding mothers living with HIV. The High Court of Kenya at Nairobi found this action to be in violation of the rights to privacy and the best interests of the child, recognizing existing standards with respect to the collection and sharing of personal medical information, particularly in relation to HIV status.

Enforcement of the Decision and Outcomes

During the 45 day compliance period KELIN made a written request to the Ministry of Health for information regarding the codification process; however, the government did not respond. When the grace period lapsed, KELIN sent a follow-up letter informing the government of its intention to notify the court for failure to comply with the judgment.

Significance of the Case

This case contributes to the existing international legal framework on issues pertaining to the confidentiality of data of PLHIV, as referred to through the judgment and in the international and comparative material submitted in the Amicus Curiae brief.  In particular, this case provides an illustrative example of the intersection between the right to privacy and children’s rights. However, although the High Court explicitly confirmed that “an integral part of the right to health is the right to have personal health data treated with confidentiality”, it surprisingly chose to take a narrow approach by not declaring a violation of the right to health despite the facts, on the basis that the directive and its implementation were focused overall on granting that right as opposed to taking it away.

Groups Involved in the Case

The Kenya Legal and Ethical Issues Network on HIV and AIDS (KELIN), Children of God Relief Institute (NYUMBANI), Mr. Anand Grover, former Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health (Amicus Curiae)