All data on HIV/Aids infected children ought not to disclose their status, the High Court ruled on Wednesday.
The ruling by Justice Isaac Lenaola concluded a case challenging last year’s presidential directive that required all county commissioners to collect and record up-to-date data of school children with HIV/Aids.
In the verdict delivered by Justice Edward Muriithi, Justice Lenaola found that the directive violated the right to privacy and the best interest of children.
Since the court had not been told whether any such data had been gathered, the judge said it would be better if the identities of the children are removed.
The remaining general information can be retained for statistics used in the HIV/Aids fight.
Quashing the February 23, 2015 decree, he ordered the Education, Health and Interior Cabinet Secretaries and National Aids Control Council to codify the collected names within 45 days.
“A declaration is hereby issued that the directive issued by the national government through the President is a breach of rights and violates their freedom as well as that of their families,” Justice Lenaola ruled.
President Uhuru Kenyatta issued the directive at the launch of a global promotion of strategies to deal with HIV/Aids among adolescents.
Out of the 1.6 million Kenyans with HIV/Aids, 16 per cent are adolescents and youth, hence the need for specific strategies for the age group to fight the epidemic.
But while defending the President, the judge said the directive was issued with a certain intent of enabling the state to cater for the welfare of school-going children affected by HIV/Aids and expectant HIV-positive mothers.
Justice Lenaola however declined to order that the collected data be destroyed, saying the principle of separation of powers prohibited the court from getting into the way of the policy making power of the Executive.
He called for continuous dialogue, saying it would be necessary for the State to work within the constitutional framework in the strategic fight against HIV/Aids.
The case was filed by two lobbies — the Kenya Legal & Ethical Network and the Children of God Relief Institute — and two people who had had HIV/Aids for more than 10 years. They welcomed the ruling but said they were disappointed that the privacy issue had not been fully addressed.
Justice Lenaola has since become a judge of the Supreme Court.