It was love at first sight for George*. He knew Jackie* was “the one” the very first time he laid eyes on her and he intended to marry her – the love of his life – as soon as they completed their studies.
Jackie on the other hand considered it a fling to while away her university years.
She threw a spanner in George’s plan when she announced that she was HIV-positive. George was consumed by feelings of anger and betrayal. All his good intentions and generosity to prove he was a serious suitor no longer counted for anything.
Jackline should have disclosed her status before he invested his all to prove that he was a serious suitor.
All his good intentions and generosity had been wasted on pursuing Jackie and he wanted recompense. As the lovebirds went their separate ways, George turned to the HIV and AIDS tribunal.
He sued his ex-girlfriend for sleeping with him with the intention of infecting him. He accused Jackie of causing him bodily harm and mental anguish.
Luckily for Jackie, the law was in her corner as she could not be penalised for not disclosing her status to her then boyfriend. The law that would have required her to do that – Section 24 of the HIV and AIDS Prevention and Control Act (HAPCA) – was declared unconstitutional by the High Court.
However, the tribunal awarded George Sh127,500 as general damages for suffering psychiatric harm after being exposed to HIV.
George now wants Jackie to be committed to civil jail, for failing to pay him the money awarded by the tribunal, and she risks having a warrant of arrest issued against her, should the High Court grant such orders when the case comes up for hearing this Thursday.
George and Jackie’s is one of many instances where a HIV-infected partner fails to disclose what would be considered a monumental piece of information – their HIV status – thereby putting the HIV-negative partner at risk of infection.
In dismissing Section 24 of the HAPCA in 2015, High Court judges Isaac Lenaola, Mumbi Ngugi and George Odunga, said it violated the principal of privacy that is enshrined in the Constitution. The case had been lodged by AIDS Law Project, a non-governmental organisation that challenged the lwa saying that it exposed HIV-positive persons to unwarranted disclosure of confidential information.
They contended that whereas those living with HIV are required to disclose their status to their “sexual contacts”, the latter are not under any duty to keep such information confidential.
The judges also found the law vague as it does not say what exactly comprises “sexual contact” and whether it includes kissing, holding hands, exploratory contact or penetrative intercourse, thus leaving the issue to the subjective views of the trial court.
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Additional reporting by Elizabeth Merab