In a historic verdict that promises to reshape the landscape of employment in the military and Kenyan state agencies, a tribunal has declared that HIV-positive individuals have the right to serve.
This landmark decision comes with a significant financial penalty for the Kenya Defence Forces (KDF), which has been ordered to pay Sh 1.05 million to a former NYS officer for discriminating and terminating his employment due to his HIV status.
The ruling sets a precedent for equal rights and serves as a stern warning to employers against discriminatory practices, affirming that health status cannot be a barrier to employment in any institution in the country.
The case highlights a crucial step towards justice, emphasizing the need for all employers to adhere to principles of equality and non-discrimination.
A former NYS officer only identified as PRJ who was wrongfully dismissed at KDF, now hopes this judgment by a six-member of the HIV and Aids Tribunal led by its chairperson Carolyne Mboku will pave the way for greater inclusion and fairness in both military and state employment.
PRJ who had resigned from the National Youth Service, had always dreamed of serving his country in the military.
“On or about November 2021, while still serving at the National Youth Service, l applied to serve in the Kenya Defence Forces, and on November 24, 2021, l presented myself for an interview into the force and underwent a KDF enlistment medical examination at the National Youth Service headquarters which was a recruitment center,” He stated in his suit papers
Among the tests conducted was a HIV test but he was not offered HIV pre-test or post-test counseling.
He was given a calling letter from the KDF indicating that he was successful in the recruitment interview into the Kenya Defence Forces as a general duty recruit and he resigned from the National Youth Service.
After a month of preparation, he finally found himself at the Kenya Defence Forces (KDF) training school in Eldoret on December 25, 2021, it felt like a dream come true.
The claimant stated that he was subjected to further medical tests on December 26, 2021, including an HIV test but there was no pre-test or post-test counseling.
He stayed in the Recruit Training School until January 2, 2022, when things took a drastic turn after he was informed in the presence of other recruits by a recruiting officer that he was dismissed from the training because he was HIV positive.
“PRJ, your HIV test came back positive. You’re no longer fit to continue with the training.”
The former NYS serviceman was stunned. He felt the world crash around him. His heart sank as the other recruits turned to stare at him whispers spreading through the room like wildfire. His private medical information had just been disclosed publicly, without his consent.
The officer then handed him Sh 1,000 and instructed him to leave the camp immediately, saying it was for his transport back home. The dismissal felt abrupt and cold, leaving PRJ with a deep sense of betrayal.
As he walked out of the camp, his dreams shattered, he couldn’t shake the feeling of injustice. He knew that what had happened wasn’t right. His privacy had been violated, and he was dismissed without due process or dignity.
Determined to seek justice, PRJ decided to file a complaint against the KDF. He wanted to challenge the wrongful disclosure of his HIV status and the unfair dismissal, not just for himself, but for others who might be subjected to the same treatment.
“The public disclosure of my HIV status humiliated me and caused emotional and psychological torture as l was not aware of the said status since the results of the second HIV test conducted on December 26, 2021, had not been disclosed to me and l had not been counseled,” the petitioner informed the tribunal.
Further, he had to avoid going home as he was the sole breadwinner and had just lost his job. He accused the KDF of discrimination by terminating his recruitment solely on grounds of his HIV status.
The claimant testified that he could not call a witness to prove unlawful disclosure of HIV status to third parties as most of the recruits who heard the disclosure are currently serving in the force and have refused to testify for him for fear of being fired.
On its side the KDF through Major EKM, the records officer testified that he did not have any records to show that the claimant was an employee at the agency or among the recruits shortlisted in the 2021 recruitment exercise.
He also testified that though the claimant’s calling letter, medical report, notice paper, certificate of recruiting officer, and attestation paper are similar to documents issued by the KDF to successful recruits, the said documents do not originate from the state agency since the recruitment officer collects them during the recruitment exercise due to their confidential nature and concluded that the claimant might have been a victim of fraud.
On cross-examination, the Major further stated that recruits with fake documents are reported to the police station and prosecuted but confirmed that no complaint was made against the claimant at the police station because the agency did not have the claimant’s documents as his file does not exist in their records as a serving officer.
It was his testimony that the documents in the Claimant’s possession were forged because they ought not to be in his possession.
The agency further informed the tribunal that a candidate should be fit enough to sustain the vigorous training and should meet the relevant academic requirements and age.
“KDF recruitment standards borders medical fitness, physical fitness, spiritual fitness as well as moral fitness is an inference that a candidate who is not medically fit can not be recruited,” the tribunal heard.
In its decision, the tribunal dismissed the KDF assertions noting the fact that the calling letter is confidential and no photocopying is allowed, the KDF has not filed a case against PRJ for fraud to give weight to the allegation or otherwise.
“No reason was advanced by KDF why the list of recruits from the NYS recruitment center could not be availed for scrutiny to confirm whether indeed the claimant was recruited at the NYS recruitment center,” the Mboku-led tribunal stated.
Similarly, they said that KDF did not call its doctor to testify on whether or not HIV pre-test and post-test counseling is conducted on the recruits before the HIV test is conducted considering that the HIV test is among the tests to be conducted as per the medical form.
“In view of the foregoing, based on the calling letter, medical report, notice paper, certificate of recruiting officer, and the attestation paper provided, we find that the KDF has failed to prove that the claimant’s calling letter, medical report, notice paper, certificate of recruiting officer and the attestation paper were forged and hold that the claimant did not give informed consent to be tested for HIV and was not offered HIV pre-test and post-test counseling by the KDF,” the tribunal ruled.
“We find that the Respondent’s act of releasing the claimant from the Recruit Training School solely based on his HIV status is discriminatory and a violation under Section 31 of the HIV and AIDS Prevention and Control Act,” Section 31 of the Act specifically prohibits discrimination against individuals based on their HIV status, ensuring that they have the same rights and opportunities as anyone else.
The tribunal found that the claimant was not offered HIV pre-test and post-test counseling thereby violating section 17 of the Act and awarded Him Sh 250,000.
Further, the tribunal found that KDF did not obtain PRJ’s informed consent to be tested for HIV thereby violating the provisions of section 14 of the HIV Act, and awarded him Sh 400,000.
Mboku also awarded the petitioner another Sh 400,000 for being discriminated against by the KDF and denying him access to employment for which he was qualified due to his perceived HIV status.
In its judgment, the six members of the tribunal held that persons living with HIV be embraced and allowed to serve due to the advancement in HIV testing and treatment.
“This Tribunal holds that the KDF is not excluded from the operations of the HIV and AIDS Prevention and Control Act and encourages it to train its personnel and uphold the provisions of the Act,” Mboku ordered.
They further ordered KDF to review and update its regulations, procedures, and practices for enlistment and recruitment informed by scientific developments in HIV treatment and management and in compliance with the provisions of the HIV & AIDS Prevention and Control Act and existing standards and guidelines and provide evidence of the same before this Tribunal within 90 days from the date of its judgment
The sex member of the tribunal noted that the government is making broader efforts to eradicate new HIV infections by 2027 based on scientific advancements, which have made it possible to envision a future where HIV is no longer a public health threat.
“Kenya is in the process of eradicating new HIV infection by 2027. Scientific advancements in HIV treatment, particularly the success of anti-retroviral treatment (ART), have demonstrated that people living with HIV can lead healthy, productive lives. The U=U (Undetectable = Untransmissible) concept further highlights that individuals on effective ART who have reduced the virus in their blood to undetectable levels cannot transmit the virus to others,” tribunal chairlady Mboku stated.
