The Kenya Defence Forces (KDF) has been ordered to pay damages amounting to Sh1,050,000 to a former National Youth Service officer for releasing him from the recruit training school solely based on his HIV status.
The HIV and AIDS Tribunal ruled that the move by the defence forces was discriminatory and a violation under Section 31 of the HIV and AIDS Prevention and Control Act.
It further held that KDF ought to have applied to the tribunal to obtain an exemption from the provisions of section 31(1) and demonstrated that the job in question required specific health or medical or clinical condition.
Section 31(1) prohibits discrimination in employment, ensuring that no person is denied a job for which they are qualified, or unfairly transferred, denied promotion, or terminated.
The tribunal now wants the KDF to review and update its regulations, procedures, and practices for enlistments and recruitment to align with advancements in HIV treatment and management.
KDF has further been given 90 days from the date of the judgment to implement these changes and provide evidence of compliance.
“KDF is hereby directed 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 and 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 this judgment,” the tribunal said.
The former National Youth Service officer claimed that he was dismissed from the KDF due to his HIV status, after passing an interview and medical exam, including an HIV test without counseling.
He received a calling letter and resigned from his NYS position.
Upon reporting to the KDF training school in Eldoret on December 25, 2021, he underwent further tests.
However on January 2, 2023, a KDF officer publicly informed him of his dismissal was due to being HIV positive, providing him with Sh1000 for transport home.
He alleged public disclosure of his HIV status caused him emotional distress and that his dismissal was discriminatory.
He also stated that KDF retained key documents, including a service number, original copies of his calling letter, medical report, notice paper, certificate of recruiting officer and the attestation paper.
The KDF defended itself stating that it had no records showing that the former NYS officer was among the recruits shortlisted in the 2021 recruitment exercise.
Further, the tribunal was told that the ex-NYS officer might have been a victim of fraud since his documents did not originate from the defence forces.
The tribunal however said the KDF failed to prove that the documents were forged.
Additionally, it held that the officer did not provide informed consent for HIV testing and was not offered pre-test or post-test counseling by the KDF.
“Officers living with HIV will have no restrictions applied to their deployability or their ability to commission while a service member solely on the basis of their HIV-positive status. Nor will such individuals be discharged or separated solely on the basis of their HIV positive status,” the tribunal said.
The tribunal noted that “stigma and discrimination is an affront to human rights and puts the lives of people living with HIV and key population in danger”.
“A judgment is hereby entered in favor of the claimant against the respondent for the sum of Sh1.050,000 by way of damages for lack of informed consent to test for HIV, failure to conduct HIV pre- and post-testing counselling and discrimination on the basis of HIV status.”
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