KISII UNIVERSITY

COURSE TITLE:

LABOUR LAWS

COURSE CODE:

LLBK 413

NAME:

DANIEL ERICK OCHIENG

REG. NO:

LAP11//30122/13

LECTURER:

GERBERA QEU

SUBMISSION DATE:

6TH NOVEMBER, 2015

SIGN:

TASK:
STIGMA

AND

EXAMINING

DISCRIMINATION

THE

LEGISLATIVE

WORKPLACE IN KENYA

OF

HIV-PATIENTS

PROTECTION

OF

AT
HIV

WORK

PLACE:

PATIENTS

AT

Declaration
I, declare that STIGMA AND DISCRIMINATION OF HIV-PATIENTS AT WORK PLACE:
EXAMINING

THE

LEGISLATIVE

PROTECTION

OF

HIV

PATIENTS

AT

WORKPLACE IN KENYA is my own work and that all the sources that I have used or quoted
have been indicated and acknowledged by means of complete references.

..
ERICK OCHIENG DANIEL

Table of Contents
Declaration.................................................................................................................... i
1.0 Introduction............................................................................................................. 1
1.1 Legislative Protection of HIV-Patients at Workplace in Kenya............................................1
1.1.2 Employment Act 2007........................................................................................... 1
1.1.3 The HIV and AIDS Prevention and Control Act, 2006.................................................3
1.1.4 Service Commissions Act Cap 185 (Revised 1985).......................................................3
1.1.5 Constitutional Framework..................................................................................... 4
1.2 Some Selected Judicial Decisions on Work Place Discrimination Based on HIV Status............5
1.2.1 J. A. O. vs. Home Park Caterers & Metropolitan Hospital............................................5
1.2.2 V M K v C U E A [2013] eKLR................................................................................ 6
1.3 Discussion................................................................................................................ 7
1.3.1 Whether the Legislations on HIV-Patients Discrimination at Work Place have been Effective
................................................................................................................................ 7
1.3.2 Whether the legislation on discrimination based on HIV status is adequate...................11
1.3.3 Public Sector Workplace Policy on HIV and AIDS....................................................12
1.4 Comparative study a case of South Africa.....................................................................13
1.5 Courts decision on discrimination at work place............................................................13
1.6 Legislative Measures that other Legal Jurisdictions Apply to Reduce Work Place Stigma and
Discrimination............................................................................................................. 14
1.7 Conclusion............................................................................................................. 15
1.7.1 Whether constitution of Kenya, 2010 has enhanced the legislative framework or granted
further protection...................................................................................................... 15
Bibliography............................................................................................................... 17

1.0 Introduction
During the wake of mid-2000, there was an intense campaign against HIV patients stigma and
discrimination. Both the government and private sector there was a major concern that the HVI
patients were being discriminated at work place and also prior to accessing employment
opportunities in Kenya. As a result of this, various human rights organization started major
sensitization with an objective of creating awareness and eliminating the stigma associated with
HIV/AIDS pandemic. However, despite the efforts put in place by nongovernmental
organizations and government agencies to fight the stigma around HIV, people living with HIV
continued to face discrimination and stigma as a result of their HIV status, particularly when
accessing health care services and in employment.
Discrimination on the basis of HIV status occurs in numerous arenas, including employment,
prison, housing, adoption, education, and health care settings. This discussion focuses on the area
where people living with HIV often face discrimination in employment settings.
To effectively address the menace of stigma in employment setting, Kenya realized that an
enabling legal and regulatory environment is imperative to create the desired impact in the fight
against HIV/ AIDS pandemic. Thereafter a number of statutes were enacted that (either explicitly
or implicitly) responds to HIV/AIDS related issues in the workplace. These are discussed
hereunder.
1.1 Legislative Protection of HIV-Patients at Workplace in Kenya
1.1.2 Employment Act 2007
The Act provides significant protection from discrimination in all aspects of employment. It
reflects Kenyas obligations to provide protection against discrimination in all areas of life
contained in Article 26 ICCPR1, to ensure, without discrimination, the enjoyment of the rights to

1 International Convention on Civil and Political Rights

3

work and to just and favorable conditions of work guaranteed under ICESCR 2 and those
provisions relating to work found in CEDAW3, CPWD4 and ICERD5.
Subsection 5(3) of the Act prohibits discrimination on grounds of race, colour, sex, language,
religion, political or other opinion, nationality, ethnic or social origin, disability, pregnancy,
mental status or HIV status.
The Act covers both direct and indirect discrimination and harassment, though no definitions are
provided for these forms of conduct.6 In line with the rest of the Act which governs all forms of
employment discrimination is prohibited in both public and private sector employment. 7 The
prohibition on discrimination applies to all aspects of employment including recruitment,
training, promotion, terms and conditions of employment, termination of employment or other
matters arising out of the employment.8 Thus, the scope of the prohibition compares favorably
with CEDAW and CRPD9, which both list aspects of employment where the state should
introduce measures to eliminate discrimination.10 The scope of protection extends to employees

2 International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200A (XXI), 1966.
3 Convention on the Elimination of All forms of Discrimination Against Women
4 Convention on People With Disability
5 International Convention on Elimination of Racial Discrimination
6 Employment Act 2007, section 5(3).
7 Ibid. section 3(1), which states: The Act shall apply to all employees employed by any employer under a contract of service.
8 Ibid. section 5(3) (b).
9 Committee on the Rights of Persons with Disability
10 Convention on the Elimination of All Forms of Discrimination against Women, Article 11(1)(b), (c), (d) and (f); and
Convention on the Rights of Persons with Disabilities, G.A. Res. A/RES/61/106, 2006. , Articles 27(1) (a) and (b). G.A. Res.
34/180, 1979.

and applicants for employment.11 Subsection 5(5) specifically provides for equal remuneration
for work of equal value, as required by ICESCR12 and CEDAW.13
Subsection 5(6) of the Employment Act states that contravention of the provisions elsewhere in
section 5 constitutes an offence, while section 88 provides that any person found guilty of an
offence under the Act for which no penalty is expressly provided (which includes the prohibition
on discrimination), is liable to a fine and/or term of imprisonment not exceeding one year. The
burden of proof where contravention is alleged lies with the employer, who must prove that the
discrimination did not take place as alleged, and that the act or omission is not based on any of
the protected grounds14, a provision which is in line with acknowledged best practice for civil
proceedings15.

1.1.3 The HIV and AIDS Prevention and Control Act, 2006
The Act was enacted for the appropriate treatment, counselling, support and care of persons
infected or at risk of being infected with HIV. The Act makes specific reference to HIV/AIDS in
relation to provision of education and information in the workplace, discrimination, privacy,
confidentiality and personal rights. Specifically the Act provides that:

Under sections 4 and 7, the government through its various ministries, departments,
authorities and other agencies - shall promote public awareness about the causes, means
of transmission, consequences and means of prevention and control of HIV and AIDS
through a comprehensive nationwide educational and information campaign at all places

11Employment Act 2007, section 5(8) (a).

12 International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200A (XXI), 1966. Article 7(a) (i).
13 Convention on the Elimination of All Forms of Discrimination against Women, G.A. Res. 34/180, 1979. Article 11(1) (d).
14 Employment Act, 2007 section 5(7).
15 Declaration of Principles on Equality, published by The Equal Rights Trust, London 2008, Principle 5, Principle 21, p. 13.

of work and ensure the provision of basic information and instructions on HIV/AIDS

prevention and control to all public sector employees.

Section 7 further notes that such information to be provided shall cover issues of

confidentiality in the workplace and attitudes towards infected employees and workers;
Under section 13, no person shall compel another to undergo an HIV test save where a
person is charged with an offence of a sexual nature under the Sexual Offences Act

(2006);
Section 22 prohibits the disclosure of an HIV test result or any related assessment result

of another person without his/her written consent; and

Section 31 prohibits denial of access to employment, transfer, denial of promotion or
termination of employment based on HIV status, though this is limited by subsection
31(2) which states that the prohibition shall not apply where an employer can prove (...)
that the requirements of the employment in question are that a person be in a particular
state of health or medical or clinical condition.

1.1.4 Service Commissions Act Cap 185 (Revised 1985)

The Act prohibits discrimination in appointment, promotion and transfer of public servants. In
particular, the Act provides in Regulation 13 of the Public Service Commission (PSC)
Regulations that the appointment, promotion and transfer of a public officer shall take into
account only the merit, ability, seniority, experience and official qualifications of the candidate.
Under Regulation 19, the Act provides that if a public officer is incapable by reason of any
infirmity of mind or body of discharging the functions of his public office, he/she may present
himself/herself before a Medical Board with a view to it being ascertained whether or not he/she
is incapable as aforesaid. This implies that no employee should be discriminated against on the
basis of his/her actual or perceived HIV status.
1.1.5 Constitutional Framework
The constitution of Kenya, 2010 is lauded as one of the best constitutions in the world in the
current dispensation and protection of human rights. This is particularly due to its broad and
elaborate provisions on the bill of rights. The Bill of Rights, states that the rights and
fundamental freedoms in the Bill of Rights belong to each individual, 16 and that every person
16 Constitution of Kenya 2010, Article 19(3).
6

shall enjoy the rights and fundamental freedoms in the Bill of Rights to the greatest extent
consistent with the nature of the right or fundamental freedom.17
Particularly with regard to discrimination, Article 27, provides for equality and freedom from
discrimination under the Bill of Rights, states:
1) Every person is equal before the law and has the right to equal protection and equal
benefit of the law.
2) Equality includes the full and equal enjoyment of all rights and fundamental freedoms.
3) Women and men have the right to equal treatment, including the right to equal
opportunities in political, economic, cultural and social spheres.
4) The State shall not discriminate directly or indirectly against any person on any ground,
including race, sex, pregnancy, marital status, health status, ethnic or social origin,
colour, age, disability, religion, conscience, belief, culture, dress, language or birth.
5) A person shall not discriminate directly or indirectly against another person on any of
the grounds specified or contemplated in clause (4).
6) To give full effect to the realization of the rights guaranteed under this Article, the State
shall take legislative and other measures, including affirmative action programmes and
policies designed to redress any disadvantage suffered by individuals or groups because
of past discrimination.
7) Any measure taken under clause (6) shall adequately provide for any benefits to be on the
basis of genuine need.
Article 27(4) and (5) prohibits discrimination, direct and indirect on an extensive list of specified
grounds race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age,
disability, religion, conscience, belief, culture, dress, language or birth. Based on this, the HIVpatients who have suffered discrimination in the past can now access justice.
The constitution also requires the state to take affirmative action, including affirmative action
programmes and policies designed to redress any disadvantage suffered by individuals or groups
because of past discrimination. And legislative measures to ensure the realization of the rights
and fundamental freedoms guaranteed in the constitution.

17 Ibid. Article 20(2).

7

1.2 Some Selected Judicial Decisions on Work Place Discrimination Based on HIV Status
Work place discrimination has been experienced by a number of employees who have been
forced to live with the stigma, despite the challenges that are associated with the HIV stigma and
discrimination. However, some victims of HIV stigma and discrimination have had a chance to
seek redress in the courts of law which has resulted in the following precedence.
1.2.1 J. A. O. vs. Home Park Caterers & Metropolitan Hospital18
The services of J.A.O, a Kenyan working as a waitress, were terminated by her employer, Home
Park Caterers in Nairobi; because they found out she was HIV positive. This information was
provided to the employers by a company doctor who had not only failed to seek informed
consent to test from JAO, but also failed to seek her consent to share the information about her
HIV status. The petitioner filed a case alleging violation of her constitutional right to privacy.
She demanded compensation from the catering firm, the doctor and the hospital. The court, by
way of consent filed in court by parties to the case, made the following declarations: - That the
testing of an employee or prospective employee for HIV without his or her consent constitutes an
invasion of her right to privacy. -That disclosure of an employees HIV status to the employer
without her consent is unlawful. - That termination of an employee on the basis of his/her HIV
status only is unlawful. - That the defendants pay to the petitioner the sum of Kshs.2, 250,000
(About $26000) without admission of liability.
This was a landmark case as it was prosecuted at a time when a number of employees were
severely discriminated by their employers and fellow workmates. The policies on HIV/AIDS had
also not been developed and there were no campaigns against the stigma and discrimination of
HIV patients as it is in the current dispensation.
1.2.2 V M K v C U E A [2013] eKLR19
This was a case involving a young woman who had suffered discrimination at work place for
seven years for reasons of her gender, pregnancy and HIV - AIDS status.
The Claimant vividly brought out evidence of;
18 HCC No. 38 of 2003 Nairobi15
19 In The Industrial Court of Kenya at Nairobi Cause No. 1161 of 2010
8

Discrimination in respect of recruitment in that whilst her two male counterparts in the
position of telephone/operator receptionist were recruited on permanent and pensionable

terms, she was singled out and recruited as a casual;

She persevered underpayment for a period of five (5) years such that at some point her
two colleagues earned over four (4) times salary to that she earned for work of equal

value;
Discriminate testing of HIV status without her consent or knowledge;
Use of her HIV status to deny her employment on permanent and pensionable terms and

as a consequence subjected her to unequal treatment with respect to remuneration;

Degrading and dehumanizing conduct by sharing her HIV status with colleagues and

superiors at the work place without her consent;

Discrimination on the basis of pregnancy by denying her paid maternity leave contrary to

express provision of Section 29 (1) of the Employment Act;

Placing her continuously and deliberately on short contracts solely on the basis of her

HIV status and to allow for easy termination; and

Termination of her employment based on her HIV status and pregnancy contrary to
Section 29 (2) of the Employment Act.

The court found out that the claimant had actually suffered discrimination and humiliation in the
hands of her employer for seven years without justification. Consequently she was awarded
compensation of Kshs. 5,000,000/= for discrimination and other terminal dues.

1.3 Discussion
1.3.1 Whether the Legislations on HIV-Patients Discrimination at Work Place have been
Effective
The case of V M K v C U E A [2013], presented a typical scenario of the real stigma and
discrimination suffered by employees based on HIV status and other related grounds. In this case
the court was able to analyze the legislative framework governing discrimination into details
both in Kenya and in other legal jurisdictions. The court started by analyzing the provisions of
the Employment Act, 2007. The court stated that the Act provides a basic standard of
employment in Kenya. Thus in Section 5 (2) it provides:
9

An employer shall promote equal opportunity in employment and strive to eliminate

discrimination in any employment policy or practice.
Further, subsection (3) provides; No employer shall discriminate directly or indirectly against
an employee or prospective employee or harass an employee or prospective employee;a) On grounds of race, colour, sex, language, religion, political or other opinion,
nationality, ethnic or social origin, disability, pregnancy, mental status or HIV status;
b) In respect of recruitment, training, promotion terms and conditions of employment or
other matters arising out of the employment.
Furthermore, subsection (4) provides; An employer shall pay his employees equal
remuneration for work of equal value.
Under section 5 (6), the Act requires that the burden of proof be discharged by the employer in a
claim of discrimination. However, in the present case, the Respondent offered little or no
evidence at all to rebut the compelling evidence courageously adduced by the Claimant. In that
circumstances, the court found out that that was a total disregard of Section 5 (6).
The court also found out that the respondent violated Article 28 of the Constitution which
provides that Every person has inherent dignity and the right to have that dignity respected and
protected.
By conducting an HIV test on the claimant and disclosing the test result without her consent.
The court also had emphasis on Article 27 on equality and freedom from discrimination in SubArticle (3) provides; Women and men have the right to equal treatment, including the right to
equal opportunities in political, economic, cultural and social spheres.
This provision is pertinent in this matter and it behooves every employer, and the Respondent
herein, a higher institution of learning, to offer equivalent opportunities to both women and men.
Clearly, with respect to the Claimant herein, this was not realized.
With regard to discrimination, the court made reference to the following ILO convention
Article 1 of Convention No. 111 Convention Concerning Discrimination in Respect of
Employment and Occupation, 1958 defines discrimination thus; For the purpose of this
Convention the term discrimination includes;

10

a) Any distinction, exclusion or preference made on the basis of race, colour, sex, religion,
political opinion, national extraction or social origin, which has the effect of nullifying
or impairing equality of opportunity or treatment in employment or occupation;
Furthermore very relevant to this matter is HIV and AIDS Recommendation, 2010, No. 200
which in Part III General Principles provides;
(c) There should be no discrimination against or stigmatization of workers in particular job
seekers and job applicants on the grounds of real or perceived HIV status or the fact that they
belong to regions of the world or segments of the population perceived to be at greater risk of or
more vulnerable to HIV infection;
No workers should be required to undertake an HIV test or disclose their HIV status.
Both of these recommendations were violated by the Respondent as demonstrated in this case.
The Claimant responded to an internal job advertisement, was shortlisted and sat for interview,
was recommended for appointment and invited to discuss the new terms of service but her hopes
were quickly dashed when the employer received the results of an HIV test, done without the
knowledge or authority of the claimant. What was worse, she was not counselled prior to the
disclosure of the results to her and the Respondent went ahead to share the results with her
superiors in the Human Resource Department.
The definition of discrimination under Article I of Convention 111 well fits into the pattern of
treatment the Claimant was subjected to. The conduct of the employer had the effect or
nullifying or impairing equality of opportunity with respect to the Claimant and the treatment
meted on her systematically and completely killed any of her employment chance with the
Respondent, mainly because of her sex, and HIV status.
The court also referred to a number of case laws from other legal jurisdictions including India
and South Africa.
In the High Court of Judicature at Bombay Original Side Writ Petition No. 1856 of 2002 X of
Mumbai India Inhabitant Petitioner vs. State Bank of India. The Petitioner herein had
worked for the Respondent as a sweeper for a period of 9 years on contract basis. In or about
1997, he applied for a job with the State Bank of India, the Respondent, in the position of parttime casual cum sweeper. He was recruited being found suitable for the job in an interview. He

11

was then to undergo medical examinations which were duly carried out and he was given a
certificate stating that he was fit to perform a sweepers job.
The Petitioner gave blood for ELISA test at the J.J. Hospital and was diagnosed that he is HIV
asymptomatic.
Pursuant to that finding, the Petitioner was informed by his supervisor orally that his application
for the said job has been rejected on medical grounds and he was not required to come to work
from that day onwards. He was also told he could report if he received clear report that he has
tested HIV negative. He was forced to work as a casual labourer on daily wages from time to
time.
The court found that the Petitioner could not be denied opportunity of employment on the basis
of his HIV status. The Respondent bank was directed to consider whether to employ the
Petitioner permanently or not on the basis of medical opinion regarding petitioners fitness to
work and his ability to perform the duties and satisfy the job requirements as to whether he poses
any risk or health hazard to others at the work place. The examination was to be conducted by an
independent panel of doctors who shall report to the respondent bank. The Respondent was
further directed to consider the petitioners employment on priority basis against first available
vacancy. Meanwhile he was to continue working as a casual as and when work was available,
Per A.P Shah J.
The court also relied on many authoritative literature on the matter of Aids and determination on
the question of fitness for work, including one titled AIDS and the workplace General
Recommendations regarding fitness for work, it is observed as under: 1. In view of the modes of HIV transmission, a seropositive persons fitness for work cannot be
called into question by the purely, theoretical risk of virus transmission and any discrimination is
unacceptable.
2. It is recommended that health personnel aware of a job applicants HIV seropositivity base
their decision solely on the actual capacity of the individual to satisfy the job requirements. In
this context only the usual aptitude tests and adherence to health and safety measures are of any
value.

12

3. Routine screening of the HIV seropositivity in the work context must be prohibited: it is
recommended that the WHO/ILO experts statement and the conclusions of the Council of
European Community act as guidelines.
With regard to HIV screening for purposes of employment, Conditions of Work Digest Vol.
12.2/1993 on page 53 states as follows;
HIV screening in the workplace or for purposes of employment should not be undertaken. HIV
screening should not be required for employees, candidates for employment or others to enter or
reside in another country.
Furthermore in an article HIV/AIDS and discrimination in workplace. The ILO perspective
by Louis Nadaba, Equality and Human Rights Co- ordination Branch, ILO Geneva, the
WHO/ILO principles inter alia include the following;
Pre-employment: HIV/AIDS screening as part of an assessment of fitness to work is
unnecessary and should not be required.
In this regard, the court fully agreed with the ILO perspectives on HIV/AIDS screening. And it
stated thus;
Testing for AIDS is socially irresponsible. If all employers screen out HIV positive people a
leper colony of unemployed and unemployable people would be created, the social
consequences of this (alienation, deprivation, discrimination) are undesirable
In the determination of unfair discrimination, the court further referred to the provisions of
Labour Relations Act of South Africa and The Constitution of South Africa. It stated thus;
The Respondent committed a cardinal sin, by terminating her employment under the pretext that
her short term contract had expired when the sole reason for the adverse decision was her HIV
status. In the matter of Gary Shane Allpass vs. Moikloof Estate (Pty) Ltd t/a Moikloof
Equistran Centre Respondent; Labour Court of South Africa held at Johannesburg Case No.
JS1 178/09; the applicant sought relief arising from his alleged automatically unfair dismissal on
the grounds of his HIV status in terms of Section 187 (1) (f) of the Labour Relations Act, 60 of
1995 (LRA).
In the alternative, the Applicant pleaded his dismissal was substantively and procedurally unfair
in terms of Section 188 of the LRA. In determining the issue whether the applicant was unfairly
discriminated against on the basis of his HIV status and if so, the appropriate relief to which he is
13

entitled, the court had due regard to the constitutional and labour law provisions in South Africa
on the subject. In particular Section 97 of the Constitution of the Republic of South Africa Act,
108 of 1996 which states;
1. everyone is equal before the law and has the right to equal protection and benefit of the
law; and Section 6 (1) of the Employment Equity Act, which specifically prohibits
discrimination on grounds of HIV status inter alia. Section 5 (3) (a) of the Employment Act,
2007 of Kenya as earlier said is similar to Section 6 (1) of the Employment Equity Act, aforesaid.
Whereas Article 28 of Kenya Constitution 2010 provides; Every person has inherent dignity
and the right to have that dignity respected and protected. And in addition, Article 27 (1) is on
all fours with Section 9 of the South African Constitutional provision cited above on equality
before the law, equal protection and equal benefit of the law. Having regard to these provisions
inter alia, Justice Bhoola, on page 192 paragraph 14 held; That the denial of employment to the
appellant because he was living with HIV impaired his dignity and constituted unfair
discrimination.
Conclusion
In this judgment the court delve extensively on the issue of discrimination as provided under
Article 27 of the constitution. With this analysis it is my humble submission that the legislative
measures on HIV stigma and discrimination has been very effective and its application in the
system and in the courts very extensive and well interpreted.
1.3.2 Whether the legislation on discrimination based on HIV status is adequate
The constitution of Kenya 2010 has been lauded as one of the best documents Kenya has ever
had. This is basically due to its explicit and broad provisions on a number of issues, but of
profound importance is its bill of right and the acknowledgement of the international law 20. The
preamble to the Constitution lists equality as one of six essential values upon which governance
should be based. This expression of principle is given legal force in Article 10, which includes
human dignity, equity, social justice, inclusiveness, equality, non-discrimination and protection
of the marginalized among the national values and principles of governance that are to be used in
applying and interpreting the Constitution and other laws.

20 Article 2 (5) and (6) of the Kenyan constitution.

14

Articles 22 and 23 regulate procedural aspects of bringing a claim under the Bill of Rights,
which includes both the rights to equality and non-discrimination under Article 27. Article 22(1)
states that every person has the right to institute court proceedings claiming that their rights
under the Bill of Rights have been denied, violated, infringed or threatened. These provisions are
important in recognizing, and attempting to address, both the inherent disadvantages in terms of
resources and access to evidence which victims of discrimination have when bringing a case, and
the systemic nature of discrimination.
Article 23 gives the High Court jurisdiction to hear and determine applications for redress under
the Bill of Rights, and to grant appropriate relief, including an injunction, a declaration of
invalidity of law, and an order for compensation. This extensive list of potential remedies and in
particular the provision for orders of compensation is in line with Kenyas obligations under
inter alia the ICESCR,21 and other international conventions.
Other legislations and policies on HIV discrimination include;
The National Code of Practice on HIV and AIDS in the Discrimination in employment settings
Workplace (2009). The Code of Practice was formulated deriving from the ILO Code of Practice
on protection of workers personal data. Under the policy, it is illegal to subject any current or
prospective staff to HIV testing to inform employment decisions. HIV related information about
employees is to be considered confidential and co-workers are not obliged to reveal such
information about each other.
1.3.3 Public Sector Workplace Policy on HIV and AIDS
The Public Sector Workplace Policy on HIV and AIDS 22 puts in place a national policy that
defines an institutional framework and intensifies intervention measures for the prevention,
management, control and mitigation of impact of HIV and AIDS. The policy was formulated to
address the need to develop a clear, consistent, coherent and harmonized policy framework on
HIV and AIDS for all public sector organizations. One of the specific objectives of the policy is

21 Committee on Economic, Social and Cultural Rights, General Comment 20: Non-discrimination in economic, social and
cultural rights, UN Doc. E/C.12/GC/20, 2009, Para 9.

22 Directorate of Personnel Management, Office of the President, Public Sector Workplace Policy on HIV and AIDS, 2005.
15

to establish structures and promote programmes to ensure non-discrimination and nonstigmatization of those with HIV and AIDS. The policy specifically states that:
All employees have the same rights and obligations as stipulated in the terms and conditions of
service. No employee or job applicant shall be discriminated against in access to or continued
employment, training, promotion and employee benefits on the basis of their actual or perceived
HIV status. Employees shall not refuse to work or interact with fellow colleagues on the grounds
that the latter are infected or perceived to be infected. Such refusal shall constitute misconduct.
All these legislations and policies are geared towards reducing and/or eliminating the stigma and
discrimination faced by employees at work place based on their HIV status. In my view these
legislations are adequate and only what needs to be done is the effective implementation.

1.4 Comparative study a case of South Africa

South Africa labour law with regard to Kenya is not so much different. In fact Kenyan courts in
many occasions refer to South African authorities as persuasive authorities in their decisions.
However, the issue of discrimination at work place has been a delicate matter in the South
African work domain just the same way it has been a thorny issue in Kenya.
Discrimination in employment can take place either as part of a broader policy or legislation or
as individual action against a potential or current employee. For example, a domestic worker can
be dismissed by an individual employer on the basis of her HIV status. On the other hand, an
airline company could have a general policy that refuses to employ cabin attendants living with
HIV. Both can be challenged in domestic courts throughout southern Africa.
1.5 Courts decision on discrimination at work place
One of the cases that was in the public domain and which brought out open discrimination based
on HIV status was the case of Hoffman v South African Airways23
In Hoffman v South African Airways, the Constitutional Court was asked to decide if SAA had
violated Hoffmans constitutional right to equality, dignity and fair labour practices.

23[2000] ZACC 17
16

Hoffman applied for a job with SAA as a cabin attendant. He was asked to go for an HIV test,
and was refused the job because he was HIV positive.
The Court decided: SAA had discriminated against Hoffman. The discrimination was unfair,
based on the medical evidence. The denial of employment to the appellant because he was living
with HIV impaired his dignity and constituted unfair discrimination. Being HIV negative was not
an inherent requirement of the job of being a cabin attendant (essential to do the job). The
Constitution also places a duty on the courts to use international law as a guide when interpreting
constitutional rights. The courts need to take note of the international agreements and
declarations on HIV and AIDS, such as: The 1988 ILO Consensus Statement on HIV/AIDS. The
SADC Code on HIV/AIDS and Employment (1997). Workers with HIV infection who are
healthy should be treated the same as any other worker. Workers with HIV-related illnesses,
including AIDS, should be treated the same as any other worker with an illness
1.6 Legislative Measures that other Legal Jurisdictions Apply to Reduce Work Place
Stigma and Discrimination
Other legal jurisdictions notably South Africa are also faced with the challenge of stigma and
discrimination at workplace. To reduce this, the labour and constitutional courts in South Africa
are encouraged to use the following legislative measures when deciding the case of
discrimination based on HIV status:

International law and conventions these include: The 1988 ILO Consensus Statement on
HIV/AIDS; the ILO C111 Discrimination (Employment and Occupation) Convention of
1958; ILO Recommendation concerning HIV and AIDS and the World of Work 200 of

2010
Regional law such as African Charter on Human and Peoples Rights

For instance in Hoffmann v South African Airways, the Constitutional Court used international
and regional law regional law to support its decision to strike down discrimination on the basis of
HIV status in employment. The court stated:
South Africa has ratified a range of anti-discrimination Conventions, including the African
Charter on Human and Peoples Rights. In the preamble to the African Charter, member states
undertake, amongst other things, to dismantle all forms of discrimination. Article 2 prohibits
discrimination of any kind. Apart from these Conventions, it is noteworthy that item 4 of the
17

SADC Code of Conduct on HIV/AIDS and Employment, formally adopted by the SADC Council
of Ministers in September 1997, lays down that HIV status should not be a factor in job status,
promotion or transfer. It also discourages pre-employment testing for HIV and requires that
there should be no compulsory workplace testing for HIV.
1.7 Conclusion
1.7.1 Whether constitution of Kenya, 2010 has enhanced the legislative framework or
granted further protection
As discussed above, the Constitution of Kenya provides all persons with a right to institute court
proceedings for a violation of their rights under the Bill of Rights, including the rights to equality
and non-discrimination under Article 27.
The Constitution also requires that any formalities relating to proceedings should be kept to a
minimum, and that the court should not be unreasonably restricted by procedural technicalities,
except as required by the rules of natural justice. 24 Second, it requires that fees must not be
charged for the commencement of proceedings, an important condition given the significant
poverty which afflicts many victims of discrimination.25 Finally, it provides that interested parties
with particular expertise may participate in proceedings as a friend of the court. 26 Taken together,
these three measures are important steps to ensuring that victims of discrimination are able to
access justice and remedies, an obligation under a number of international instruments to which
Kenya is party.27 It also provides a list of potential remedies in line with those required by
various international treaties to which Kenya is a party. Thus, the Constitution provides a
potential means of redress for those suffering discrimination by the state and by individuals, on a
range of grounds across a range of areas of life.
24 Constitution of Kenya 2010, Article 19(3).
25 Ibid., Article 22(3)(c).
26 Ibid., Article 22(3)(e).
27 See, for example, Convention on the Rights of Persons with Disabilities, Article 13; Committee on the Elimination of
Discrimination against Women, General Recommendation No. 28: on the core obligations of States parties under article 2 of the
Convention on the Elimination of All Forms of Discrimination against Women, UN Doc. CEDAW/C/2010/47/GC.2, 2010, Para
34; Human Rights Committee, General Comment 31: The nature of the general legal obligation imposed on states parties to the
Covenant, UN Doc. CCPR/C/21/Rev.1/Add. 13, 2004, Para 16.

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Article 27(6) obligates the state to take legislative measures to ensure the realization of the rights
and fundamental freedoms guaranteed in the constitution; and creates a duty of affirmative
action, a concept which is defined in Article 260 as including any measure designed to
overcome or ameliorate an inequity or the systemic denial or infringement.

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