Legal reforms needed to protect HIV-positive people

Lack of adequate legal aid for Kenyans living with HIV could reverse advances made in the fight against the disease, the Open Society Initiative for East Africa (OSIEA) has said in a new report.

'Ensuring Justice for Vulnerable Communities in Kenya: a review of HIV and AIDS-related legal services' was launched on Monday by OSIEA, a regional offshoot of the Open Society Institute, founded by international financier and philanthropist George Soros to promote human rights and good governance through grants to civil society groups.

The 40-page document catalogues human rights abuses faced by HIV-positive Kenyans, from sexual violence and property-grabbing to police abuse and discrimination, and makes recommendations for improving their access to legal services.

"Suppose an HIV-positive widow needs antiretroviral treatment but has no money to pay for her transport to the health centre because she has been denied her property rights by her late husband's family," said Jonathan Cohen, director of the Open Society Institute's Law and Health Initiative. "In such a case, the burning issue is not access to health services but to human rights and legal representation."

Cohen said the report had uncovered "startling findings", including a severe shortage of lawyers and other representatives of the legal system in Kenya.

"There is usually just one magistrate and a visiting judge in each of Kenya's 71 districts," he said. "On average, victims of sexual violence have to make 15 court appearances in order to press their cases."

Although Kenya recently passed a law to protect the rights of people living with HIV/AIDS, and another one to protect survivors of sexual violence, the country lacks a state-sponsored legal aid system, leaving expensive private lawyers and charitable organisations to fill the gap.

"Just as it is possible to scale up HIV-related health services, such as condoms, antiretroviral therapy and palliative care, it is also necessary to scale up HIV-related legal services," Cohen said. "The AIDS epidemic provides new urgency for legal aid reform in Kenya."

Allan Ragi, director of the Kenya AIDS NGOs Consortium, a national network of AIDS organisations, said that despite the existing legislation there was little political will to provide legal support to people living with HIV.

He added that all vulnerable groups, including men who have sex with men and women who have sex with women, needed access to health services and legal protection.

"It is time we stopped burying our heads in the sand - these are our brothers and sisters," Ragi said. "They need constitutional protection, just like all other Kenyans."

The OSIEA report recommends that the government incorporate legal and human rights advocacy into existing HIV/AIDS programmes, and provide support to the traditional, informal justice system by educating traditional leaders about legal and human rights relating to HIV and AIDS.

"Legal aid needs to be placed high on the country's HIV agenda and, conversely, HIV must be placed high on the legal aid agenda," Cohen said.

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