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African Commission on Human and Peoples' Rights

National Dialogue on the Study: “HIV, the Law and Human Rights in the African Human Rights System: Key Challenges and Opportunities for Rights-Based Responses to HIV”, from 4 to 5 October 2019, Nairobi, Kenya


Final Communiqué

1. The African Commission on Human and Peoples’ Rights (the Commission) through its Committee on the Protection of the Rights of People Living with HIV (PLHIV) and Those at Risk, Vulnerable to and Affected by HIV (the Committee on HIV) organized a National Dialogue on the Study: “HIV, the Law and Human Rights in the African Human Rights System: Key Challenges and Opportunities for Rights-Based Responses to HIV”, from 4 to 5 October 2019, in Nairobi, Kenya.

2. The National Dialogue was attended by 43 participants representing:

  • The Committee on HIV, represented by its Chairperson, Honorable  Commissioner  Soyata Maiga and its members Hon. Commissioner Lucy Asuagbor, Dr. Patrick Michael Eba, Prof. Ebenezer Tope Durojaye, Mr. Christian Garuka Nsabimana, Mr. Fogue Dzutue, Dr. Agnes Atim Apea,  assisted by Ms. Aji Samate Mustapha and Anita Bagona;
  • Hon. Lawrence Murugu Mute, the Vice-Chaiperson of the Commission;
  • The  Kenya National Commission on Human Rights (KNCHR);
  • The National AIDS Control Council (NACC);
  • The HIV & AIDS Tribunal;
  • The UN Agencies (UNAIDS, UNDP and WFP);
  • Civil society organizations;
  • International Organizations based in Kenya;
  • People living with HIV and;
  • Key populations (Sex workers, People who Inject Drugs, Men who have Sex with Men and Transgender persons).  

3. Opening remarks were made by the Representative of UNAIDS Kenya Country Office, Mr. Henry Damisoni, the Chairperson of the Commission and Chairperson of the HIV Committee, Honorable Commissioner Soyata Maiga and Dr. Celestine Mugambi, representing the National AIDS Control Council.

4. The National Dialogue was aimed at launching, popularizing and widely disseminating the Commission’s Study on “HIV, the Law and Human Rights in the African Human Rights System: Key Challenges and Opportunities for Rights-Based Responses”; engaging with relevant stakeholders particularly state and non-state entities on the findings of the Study; and deliberate on ways, means and mechanisms for the implementation of the recommendations made by the Study.

5. Presentations were made on several themes, including:

  • The main findings, conclusions and recommendations of the Study;
  • The perspectives in relation to the promotion and the protection of the rights of People Living with HIV and those at Risk, Vulnerable to and affected by HIV in Kenya. The perspectives of:
  • the National AIDS Control Council;
  • the National Commission on Human Rights;
  • the HIV & AIDS Tribunals ;
  • Civil Society Organizations especially Community of People living with HIV and key populations;

6. Presentations were followed by a constructive dialogue on the findings, conclusions and recommendations of the Study and the situation of HIV and AIDS in Kenya.

7. Working groups were formed to brainstorm on the recommendations and to elaborate on ways, means and mechanisms for the implementation of the recommendations of the Study in Kenya as well as ideas for further engagement with the Commission and its Committee on HIV.

8. The following recommendations were made at the conclusion of the National Dialogue:

To the Government of Kenya:

  • Remove legal, policy, social and administrative barriers that limit access to medicine especially under the Trade Related Aspects of Intellectual Property Rights Agreements (TRIPS) regime;
  • Collect disaggregated data by age, sex, themes  and disseminate it to all relevant actors for purposes of intervention;
  • Expand programs to include those on social behavioral change;
  • Provide access to full range of Sexual and Reproductive Health (SRH) services and information to all, especially adolescents, in view of the high prevalence rates of teenage pregnancy;
  • Integrate SRHR into  HIV and AIDS programming;
  • Review the legal framework establishing the HIV and AIDS Tribunal to address its inadequacies;
  • Repeal section 26 of the Sexual Offences Act and  section153, 162 (a) & (c) and 165 of the Penal Code;
  • To put in place mechanism to ensure access to Universal Health Coverage (UHC) and a comprehensive benefits package including HIV services for all, especially for key populations;
  • Fast track the training of health workforce on human rights and medical ethics in the context of HIV;
  • Raise awareness on  HIV, Human rights and Law;
  • Fast track the implementation of programs to reduce stigma and discrimination among people living with HIV/AIDS, especially young people;
  • Strengthen the implementation of laws and policies in place to address all forms of violence against PLHIV and key populations;
  • Take the necessary measures to increase the resources allocation to the health sector in general and for HIV services in accordance with the Abuja Declaration;
  • Continue to engage civil society and non-state actors in planning, implementing and monitoring of health and HIV and AIDS programs.

To the Kenya National Commission on Human Rights (KNCHR) and the National AIDS Control Council ( NACC)

  • Establish a National Task Force comprised of all stakeholders working in the HIV domain, with clear terms of reference to ensure follow up and implementation of the study’s recommendations;
  • Build synergy between the KNCHR and the NACC regarding the promotion and protection of human rights of people living with HIV with a particular attention to key populations;
  • NACC should establish a human rights desk that can lead and work with CSOs on human rights protection in the context of HIV;
  • Disseminate the conclusions and recommendations of the Study on ““HIV, the Law and Human Rights in the African Human Rights System: Key Challenges and Opportunities for Rights-Based Responses to HIV”.

To the Civil Society and Community of People living with HIV and Those at Risk, Vulnerable to and Affected by HIV:

  • Continue to engage and collaborate with relevant national organs including the NACC and the KNCHR, regional and UN human rights mechanisms for the promotion and the protection of human rights in the context of HIV;
  • Create awareness on HIV and AIDS related information and collaborate with the Commission and its Committee on HIV;
  • Empower communities including PLHIV, key populations, young people, women and girls, and other vulnerable groups to know and claim their rights;
  • Generate evidence and advocate to inform programming, review of laws and policies to create an enabling environment to enhance access to health services free from stigma and discrimination;
  • Monitor the implementation of laws and policies related to human rights in the context of HIV;
  • Develop innovative approaches to engage the general public, all state and non-state actors  on critical human rights issues relating to HIV and AIDS ;
  • Advocate for increase of resources in the context of HIV, both at the national and county levels;
  • Consider to apply for an observer status before the Commission.

To religious leaders:

  • Engage in dialogue with people living with HIV and members of key populations;
  • Refrain from all forms of mandatory or coercive HIV Testing;
  • Avoid the use of hatred speeches against people living with HIV and members of key populations.

To the Media :

  • Maintain and strengthen constructive dialogue with people living with HIV and members of key populations;
  • Refrain from fueling stigma and discrimination against people living with HIV and AIDS and members of key populations;
  • Refrain from inciting hatred against people living with HIV and members of key populations and promote responsible reporting that advances rights based and evidence informed responses to HIV and AIDS.

9. The Kenya National Commission on Human Rights will be responsible for monitoring and reporting on the implementation of these recommendations.

Done on 5th October 2019 in Nairobi, Kenya