Judicial Officers Training Manual-Human Rights Approaches On Drug Related Issues

Training Manual for Judges and Judicial
Officers-
Facilitating access to health services for
People who Inject Drugs(PWDs).
T ABLE OF C ONTENT .
TABLE OF CONTENT. ....................................................................................................................................................... 3
LIST OF TABLES. ........................................................................................................................................................... 10
LIST OF FIGURES. ......................................................................................................................................................... 10
ABBREVIATIONS & ACRONYMS. ...................................................................................................................................... 11
ACKNOWLEDGEMENTS. ................................................................................................................................................. 12
PREFACE. ............................................................................................................................................................ 13
INTRODUCTION. ................................................................................................................................................. 15
Background and Rationale. ............................................................................................................................................... 16
Overview of the Training Manual. .................................................................................................................................... 17
Proposed Workshop Schedule .......................................................................................................................................... 19
MODULE 1A. ...................................................................................................................................................... 20
OVERVIEW OF HIV AND AIDS: EPIDEMIOLOGY, PREVENTION, TREATMENT AND CARE. ...................................... 20
Module 1a. .......................................................................................................................................................... 21

Overview of HIV and AIDS: Epidemiology, Prevention, Treatment and Care. .................................................................. 21
Learning Objectives. ................................................................................................................................................ 21
Background and Rationale. .......................................................................................................................................... 22
Kenya’s National Statistics. .......................................................................................................................................... 22
Universal Access. ..................................................................................................................................................... 23
Recommended HIV Prevention Programs for PWID. ................................................................................................... 24
Recommended HIV Care & Treatment Programmes for PWID ................................................................................... 24
Elements of HIV Care and Treatment: .................................................................................................................... 24
Harm Reduction Intervention Services ........................................................................................................................ 26
Case Studies and Practical Sessions. ............................................................................................................................ 26
MODULE 1B. ....................................................................................................................................................... 27
OVERVIEW OF HIV AND AIDS: KENYA’S NATIONAL STATISTICS AS PERTAINS TO PWID. ...................................... 27
Module 1b. .......................................................................................................................................................... 28

Overview of HIV and AIDS: Kenya’s National Statistics as Pertains to PWID. ................................................................... 28
Module Content. .......................................................................................................................................................... 28
Kenya’s County Statistics of PWID. .............................................................................................................................. 28
Summary of the HIV County Profile for PWID. ........................................................................................................ 28
Kenyan Statistics on PWID ........................................................................................................................................... 30
MODULE 2A. ...................................................................................................................................................... 31
OVERVIEW OF HIV & PWID IN KENYA’S LEGAL CONTEXT: THE CONSTITUTION, 2010 AND THE RIGHT TO HEALTH.
........................................................................................................................................................................... 31
Module 2a. .......................................................................................................................................................... 32

Overview of HIV & PWID in Kenya’s Legal Context: The Constitution, 2010 and the Right to Health. ............................. 32
Module Content. .......................................................................................................................................................... 32
The Right to Health in the Constitution. ................................................................................................................. 32
TABLE OF CONTENTS.
The Right to Health in Ratified International Treaties. ........................................................................................... 33

Sustainable Development Goals. ............................................................................................................................ 33
Government Duty in Regard to the Right to Health. ............................................................................................... 34
The Role of the Judiciary in Safeguarding the Right to Health. ............................................................................... 35
THE RIGHT TO HEALTH AMIDST OTHER RIGHTS OF FWIDS/FWUD. ............................................................................. 35
Introduction ............................................................................................................................................................ 35
Context of FWID/FWUD in Kenya. .......................................................................................................................... 36
Conclusion. .............................................................................................................................................................. 37
MODULE 2B. ....................................................................................................................................................... 38
OVERVIEW OF HIV & PWID IN KENYA’S LEGAL CONTEXT: HEALTH AS A DEVOLVED FUNCTION. .......................... 38
Module 2b. .......................................................................................................................................................... 39

Overview of HIV & PWID in Kenya’s Legal Context: Health as a Devolved Function. ....................................................... 39
Module Content ........................................................................................................................................................... 39
Kenya’s Devolved System of Governance. .............................................................................................................. 39
Government Structures under Devolution. ................................................................................................................. 40
The National Government. ..................................................................................................................................... 40
The County Governments. ...................................................................................................................................... 40
Inter-Governmental Relations. ............................................................................................................................... 41
Summary. ................................................................................................................................................................ 42
The Government Structures for Implementing Matters Affecting PWID. ............................................................... 42
References. ............................................................................................................................................................. 43
MODULE 2C. ....................................................................................................................................................... 44
OVERVIEW OF HIV & PWID IN KENYA’S LEGAL CONTEXT: THE LEGISLATIVE AND POLICY FRAMEWORK RELATING
TO DRUG USE. .................................................................................................................................................... 44
Module 2c. .......................................................................................................................................................... 45

Overview of HIV & PWID in Kenya’s Legal Context: The Legislative and Policy Framework Relating to Drug Use. .......... 45
Learning Objective .................................................................................................................................................. 45
MODULE CONTENT ...................................................................................................................................................... 45
Laws Relating to Drug Use and Control. ...................................................................................................................... 45
Narcotic Drugs and Psychotropic Substances (Control) Act .................................................................................... 45
The Sexual Offences Act: ......................................................................................................................................... 46
The East African Community HIV and AIDS Prevention and Management Act. ...................................................... 46
The National Authority for the Campaign Against Alcohol and Drug Abuse Act: ................................................... 47
Policies Relating to Drug Use and Control. ............................................................................................................. 47
The National Protocol for Treatment of Substance Use Disorders in Kenya, 2017 by Ministry of Health, Kenya. . 48
MODULE 3. ......................................................................................................................................................... 49
OCCUPATIONAL HEALTH AND SAFETY: HIV AND HEPATITIS. ............................................................................... 49
Module 3. ............................................................................................................................................................ 50
Overview of Occupational Health and Safety: HIV and Hepatitis. .................................................................................... 50
Risk of HIV transmission. ......................................................................................................................................... 51
4

TABLE OF CONTENTS.
Other Workplace Risk. ............................................................................................................................................ 51

Hepatitis B (HBV). .................................................................................................................................................... 52
Post-Exposure Prophylaxis (PEP). ............................................................................................................................ 52
Work-place HIV Safety. ........................................................................................................................................... 52
Personal HIV Risk Reduction ................................................................................................................................... 52
Safe Disposal. .......................................................................................................................................................... 52
A National Judicial Policy for Occupational HIV Risk Reduction. ............................................................................. 52
Reference: ............................................................................................................................................................... 53
MODULE 4A. ...................................................................................................................................................... 54
OVERVIEW OF THE ROLE OF JUDICIAL OFFICERS. ................................................................................................ 54
Module 4a. .......................................................................................................................................................... 55

Overview of the Role of Judicial Officers. ......................................................................................................................... 55
Learning objective ................................................................................................................................................... 55
Module Content. .......................................................................................................................................................... 55
The Role of the Judiciary ......................................................................................................................................... 55
JUDICIARY BAIL AND BOND POLICY GUIDELINES. ........................................................................................................ 56
Definitions. ................................................................................................................................................................... 56
Bail. ......................................................................................................................................................................... 56
Bond. ....................................................................................................................................................................... 56
Security. .................................................................................................................................................................. 56
Surety. ..................................................................................................................................................................... 56
Pre-trial Detention. ................................................................................................................................................. 56
Bail Report. .............................................................................................................................................................. 57
Personal Recognizance. ........................................................................................................................................... 57
Remandee. .............................................................................................................................................................. 57
Constitutional and Legislative Basis for Bail and Bond. ............................................................................................... 57
General Principles on Bail and bond. ........................................................................................................................... 58
Bail and Bond Decision-Making. .................................................................................................................................. 58
Bail and Bond in the Police Station. ........................................................................................................................ 58
Bail and Bond in the Courts. .................................................................................................................................... 58
JUDICIARY SENTENCING POLICY GUIDELINES .............................................................................................................. 59
Principles Underpinning the Sentencing Process. ........................................................................................................ 59
Proportionality: ....................................................................................................................................................... 59
Equality/Uniformity/Parity/Consistency/Impartiality: ............................................................................................ 60
Accountability/Transparency: ................................................................................................................................. 60
Inclusiveness: .......................................................................................................................................................... 60
Respect for Human Rights and Fundamental Freedoms: ....................................................................................... 60
Adherence to Domestic and International Law with Due Regard to Recognised International and Regional
Standards on Sentencing: ....................................................................................................................................... 60
Objectives of Sentencing. ............................................................................................................................................ 61
Retribution: ............................................................................................................................................................. 61
Deterrence: ............................................................................................................................................................. 61
Rehabilitation: ......................................................................................................................................................... 61
Restorative Justice: ................................................................................................................................................. 61
Community Protection: ........................................................................................................................................... 61
Denunciation: .......................................................................................................................................................... 61
Penal and Corrective Sanctions Recognised Under Kenyan Law. ................................................................................ 61
Custodial versus Non-Custodial Sentences. ................................................................................................................. 62
5

TABLE OF CONTENTS.
Factors in Determining Whether to Impose a Custodial or Non-Custodial Sentence. ................................................. 63

Gravity of the Offence: ............................................................................................................................................ 63
Criminal History of the Offender: ............................................................................................................................ 63
Children in Conflict with the Law: ........................................................................................................................... 63
Character of the Offender: ...................................................................................................................................... 63
Protection of the Community: ................................................................................................................................ 64
Offender’s Responsibility to Third Parties: ............................................................................................................. 64
Alternative Places of Custody. ................................................................................................................................ 64
Fines. ............................................................................................................................................................................ 64
Situational Analysis. ................................................................................................................................................ 64
Payment in Instalments. ......................................................................................................................................... 65
Determination of a Fine. ......................................................................................................................................... 65
Imprisonment in Default of Payment of a Fine. ...................................................................................................... 65
Forfeiture. .................................................................................................................................................................... 66
Situational Analysis. ................................................................................................................................................ 66
Policy Directions. ..................................................................................................................................................... 66
MODULE 4B. ....................................................................................................................................................... 67
OVERVIEW OF THE ROLE OF JUDICIAL OFFICERS IN PUBLIC HEALTH AND THE IMPORTANCE OF WORKING WITH
KEY POPULATIONS. ............................................................................................................................................ 67
Module 4b. .......................................................................................................................................................... 68

Overview of the Role of Judicial Officers in Public Health and the Importance of Working with Key Populations. ......... 68
MODULE 5. ......................................................................................................................................................... 70
RISK AND VULNERABILITY: POLICING KEY POPULATIONS AND PROTECTING HUMAN RIGHTS. ............................ 70
Module 5. ............................................................................................................................................................ 71
Overview of the Risk and Vulnerability: Policing Key Populations and Protecting Human Rights. ................................... 71
Learning Objectives ................................................................................................................................................. 71
Risks & Vulnerabilities. ................................................................................................................................................. 73
KP Risks & Vulnerabilities. ....................................................................................................................................... 74
Women Who Inject Drugs (WWID). ........................................................................................................................ 74
HIV Risk Environments. ........................................................................................................................................... 74
Decreasing the Risk Environment. .......................................................................................................................... 74
Kenya National HIV/AIDS Strategic Plan, 2009-2013 (KNASP III). ................................................................................ 75
Human Rights Policing and understanding Diversity. ............................................................................................. 75
Community Policing. ............................................................................................................................................... 76
Benefits and Challenges of Community Policing. .................................................................................................... 76
Panel Discussion ........................................................................................................................................................... 77
“Community Encounters”. ...................................................................................................................................... 77
MODULE 6. ......................................................................................................................................................... 78
INTRODUCTION TO DRUGS, POLICING AND HARM REDUCTION. ......................................................................... 78
Module 6. ............................................................................................................................................................ 79
6

TABLE OF CONTENTS.
Introduction to Drugs, Policing and Harm Reduction. ...................................................................................................... 79

What is a Drug? ....................................................................................................................................................... 80
Categories of drugs ...................................................................................................................................................... 80
Stimulants: .............................................................................................................................................................. 80
Depressants: ........................................................................................................................................................... 80
Hallucinogens: ......................................................................................................................................................... 81
Risk and harms of alcohol. ...................................................................................................................................... 81
Different Drugs, Different Risks and Implications for Health. ...................................................................................... 81
Opiates/Heroin. ....................................................................................................................................................... 81
Alcohol. ................................................................................................................................................................... 81
Amphetamines. ....................................................................................................................................................... 82
What is harm reduction? ............................................................................................................................................. 82
Definition: ............................................................................................................................................................... 82
MODULE 7. ......................................................................................................................................................... 84
THE COMPREHENSIVE PACKAGE FOR PREVENTION OF HIV, HEPATITIS AND TB AMONG PWID. .......................... 84
Module 7. ............................................................................................................................................................ 85
The Comprehensive Package for Prevention of HIV, Hepatitis and TB among PWID. ...................................................... 85
The Comprehensive Package for HIV Prevention, Treatment Care And Support among PWID. ................................. 85
Needle and Syringe Programmes (NSPs). ............................................................................................................... 86
NSPs: Considerations for Judicial Officers. .............................................................................................................. 86
Opioid Substitution Therapy (OST) ......................................................................................................................... 87
.
Peer Outreach Benefits and Considerations for Judicial Officers. .......................................................................... 87

Challenges for the Judicial Officers When Thinking Harm Reduction Programmes. ................................................... 87
Judicial Practices that Block Drug Users’ Access to Sterile Syringes. ...................................................................... 87
Targeting PWID for Arrest Increases Unsafe Infection Behaviour. ......................................................................... 88
Criminal Laws Deter PWID From Seeking Health-Care and Emergence Services. ................................................... 88
Incarceration of PWID Increases Risky Behaviour and Endangers their Health. ..................................................... 88
The ‘War on Drugs’ has been Associated with Excessive Force and Inappropriate Judicial Officers Behaviour. .... 88
Key Populations Interventions. .................................................................................................................................... 89
Behavioral Components: ......................................................................................................................................... 89
Bio-medical components: ....................................................................................................................................... 89
Structural Components: .......................................................................................................................................... 89
Overdose While in the Presence of the Judicial Officers. ............................................................................................ 90
The Use of Naloxone. .............................................................................................................................................. 90
MODULE 8: ......................................................................................................................................................... 91
LAW ENFORCEMENT AND THE USE OF DISCRETION, DRUG DIVERSION PROGRAMMES AND THE ROLE OF ETHICAL
FRAMEWORKS. .................................................................................................................................................. 91
Module 8. ............................................................................................................................................................ 92
Law Enforcement and the Use of Discretion, Drug Diversion Programmes and the Role of Ethical Frameworks. .......... 92
Learning Objectives ................................................................................................................................................. 92
What is Discretion? ...................................................................................................................................................... 94
7

TABLE OF CONTENTS.
What is an Ethical Dilemma? ....................................................................................................................................... 94

Discretion and Ethical Dilemmas. ........................................................................................................................... 94
Ethical Frameworks. ..................................................................................................................................................... 94
Natural Law: ............................................................................................................................................................ 94
Ethical Formalism: ................................................................................................................................................... 94
Utilitarianism: .......................................................................................................................................................... 95
Ethics of Care: ......................................................................................................................................................... 95
Drug-Diversion Programmes. ....................................................................................................................................... 95
Diversion from Criminal Prosecution. ..................................................................................................................... 95
MODULE 9. ......................................................................................................................................................... 96
CREATING MULTI-SECTORAL PARTNERSHIPS TO MORE EFFECTIVELY WORK WITH KEY POPULATIONS TO

ENHANCE THE NATIONAL HIV/AIDS RESPONSE. .................................................................................................. 96
Module 9. ............................................................................................................................................................ 97
Creating Multi-Sectoral Partnerships to More Effectively Work with Key Populations to Enhance the National HIV/AIDS
Response. .......................................................................................................................................................................... 97
Main Components of Partnership Formation .............................................................................................................. 98
Leadership. .............................................................................................................................................................. 98
Civil Society & Community-based Organizations. ................................................................................................... 98
Police Reform. ......................................................................................................................................................... 98
Communication. ...................................................................................................................................................... 98
Addressing Structural DriverS. ................................................................................................................................ 98
On-going Monitoring And Evaluation. .................................................................................................................... 99
Other Considerations. ............................................................................................................................................. 99
The Following Approaches can Help Bring Law Enforcement Efforts in Line with Public Health Goals. ..................... 99
Encourage Police to Use Discretion When Confronting Potential PWID. ............................................................. 100
Law Enforcement Authorities Should Adopt The Provision of Harm-Reduction Training for their Officers and
Incorporate Harm-Reduction into their Law Enforcement Strategies. ................................................................. 100
Adopt Drug Laws that Reduce Risks to Public Health and Safety ......................................................................... 100
Case Studies and Practical Sessions. .......................................................................................................................... 101
Annex 1: ............................................................................................................................................................ 102
Reference Material: ........................................................................................................................................................ 102
Annex 2: ............................................................................................................................................................ 103
Guidelines for Handling and Disposal of Needles and Syringes. ..................................................................................... 103
Infection Control Procedures. ............................................................................................................................... 104
Assumption of Risk. ............................................................................................................................................... 105
Dealing with Spills of Body Fluids. ......................................................................................................................... 105
Universal Precautions. .......................................................................................................................................... 105
Exposure to Body Fluids. ....................................................................................................................................... 106
What to do If You have A Needle-Stick Injury. ...................................................................................................... 106
Annex 3: ............................................................................................................................................................ 107
Case-Study And Practical Sessions. ................................................................................................................................. 107
NATIONAL SCENARIO. ................................................................................................................................................ 107
Interior Ministry. ........................................................................................................................................................ 107
Health Ministry. ......................................................................................................................................................... 108
LOCAL SCENARIO ....................................................................................................................................................... 109
The Ministry of Interior’s Statement Concerning the Anti-Alcohol and Anti-Drug Campaign: ............................. 109
8

TABLE OF CONTENTS.
The Ministry of Health’s Statement Concerning the Health Mass-Mobilisation Campaign: ................................ 110
The Mass-Media Reporting on the Anti-Alcohol and Anti-Drug Campaign: ......................................................... 111
The Mass-Media Reporting on the Health Outreach-Drive: ................................................................................. 111
The Joint-Statement by Partner Civil Society Organisations (CSO) and Community-Based Organisations (CBO)
Concerning the Anti-Alcohol & Anti-Drug Campaign and Health Mass-Mobilisation Campaign: ......................... 112
Classes of Apprehended Persons. .............................................................................................................................. 113
Male Suspect. ........................................................................................................................................................ 113
Female Suspect. .................................................................................................................................................... 114
Case-study Approach Guide for Instructors. .............................................................................................................. 116
General Questions. .................................................................................................................................................... 116
Sample Questions for Trainees: ................................................................................................................................. 116
Questions Based upon the Module’s Objectives. ...................................................................................................... 116
Module 1a: ............................................................................................................................................................ 116
Module 1b: ............................................................................................................................................................ 116
Module 2a: ............................................................................................................................................................ 117
Module 2b: ............................................................................................................................................................ 117
Module 2c: ............................................................................................................................................................ 117
Module 3: .............................................................................................................................................................. 117
Module 4a: ............................................................................................................................................................ 117
Module 4b: ............................................................................................................................................................ 117
Module 5: .............................................................................................................................................................. 118
Module 6: .............................................................................................................................................................. 118
Module 7: .............................................................................................................................................................. 118
Module 8: .............................................................................................................................................................. 118
Module 9: .............................................................................................................................................................. 119
Additional Questions for Trainees: ............................................................................................................................ 119
Series 1: ................................................................................................................................................................. 119
Series 2: ................................................................................................................................................................. 120
9

L IST OF T ABLES .
TABLE 1: KENYAN STATISTICS ON PWID. ................................................................................................................... 30
TABLE 2: THE INTERGOVERNMENTAL STRUCTURES IN KENYA. ................................................................................... 41
L IST OF F IGURES .
FIGURE 1; DEVOLVED GOVERNANCE STRUCTURE. ...................................................................................................... 42
A BBREVIATIONS & A CRONYMS .
AIDS Acquired Immune Deficiency Syndrome.
ART Anti-Retroviral Therapy.
BBV Blood Borne Viruses.
BMGF Bill and Melinda Gates Foundation.
CSO Community-Based Organisations.
CND United Nations Commission on Narcotic Drugs.
CSO Civil Society Organisations.
ECOSOC United Nations Economic and Social Council.
FSW Female Sex Workers.
FWID Female Who Inject Drugs.
FWUD. Female Who Use Drugs.
HBV Hepatitis B Virus.
HCV Hepatitis C Virus.
HIV Human Immuno-deficiency Virus
HTC HIV Testing and Counselling.
IDU Injecting Drug Users.
IEC Information, Education and Communication
KAIS Kenya Aids Indicator Survey.
KNASP III Kenya National HIV and AIDS Strategic Plan.
KP Key Populations.
MAT Medically Assisted Therapy.
MDGs United Nations Millennium Development Goals.
MSM Men who have Sex with Men.
MSW Male Sex Workers.
NACC National AIDS Control Council.
NASCOP National AIDS and STI Control Programme
NCAJ. National Council on the Administration of Justice.
NSP Needle Syringe Programmes.
OI Opportunistic Infections.
OST Opiate Substitution Therapy.
PCB UNAIDS Programme Coordinating Board.
PEP Post-Exposure Prophylaxis.
PEPFAR U.S. President's Emergency Plan for AIDS Relief.
PLWHIV People Living With HIV.
PWID People Who Inject Drugs.
PWUD. People Who Use Drugs.
SOP Standard Operating Protocol
STI Sexually Transmitted Infections.
SW Sex Workers.
TSU Technical Support Unit
UNAIDS Joint United Nations Programme on HIV/AIDS
UNODC United Nations Office on Drugs and Crime.
WHO World Health Organisation.
A CKNOWLEDGEMENTS .
The template for this manual and much of generic information within this document is sourced
primarily from UNODC’s Training Manual Template titled, “Training Manual for Law
Enforcement on HIV Service Provision for People Who Inject Drugs”.
This manual has relied heavily upon the National AIDS Control Council (NACC) and the
National AIDS and STI Control Programme (NASCOP) for much of the empirical national data,
and information on Kenya’s PWID (a sub-set of the wider stigmatised and marginalised KP
community, amongst whom a higher HIV prevalence has been identified than in the wider
populace). Both these agencies are the lead national agencies that have for years undertaken the
coordination and technical support functions for the government of Kenya in the fight against
HIV/AIDS. Their web portals and that of UNAIDS have made invaluable contributions to the
development of this manual. Particularly reference was made to NACC & NASCOP report titled
“Kenya HIV County Profile, 2016”.
The National Council on the Administration of Justice (NCAJ) authored “Bail and Bond Policy
Guidelines” and the “Sentencing Policy Guidelines” for the Judiciary have been of invaluable
assistance in the drafting of this manual, with relevant portions thereof significantly incorporated
in the Modules that address the roles of the Judicial Officers.
PREFACE.
There is an increasing global recognition of the important role that actors in the law enforcement
and justice system (including the Judicial Officers), have in protecting and promoting individual
and public health, especially the health of diverse and vulnerable communities that the Judicial
system interacts with. In the context of HIV prevention, treatment, care and support, the Judicial
Officers have a significant role and responsibility to ensure uninterrupted access to essential
HIV-related health and social services for HIV/AIDS infected and affected, vulnerable
populations, who have come into conflict with the law. Many of them are stigmatised,
marginalised or total ostracized by their community. The HIV/AIDS Programmes have
specifically targeted a sub-set of the wider Key Populations (KP) group, knowns as People Who
Inject Drugs (PWID); who are themselves a fraction of the larger group of People Who Use
Drugs (PWUD).
The success of any National HIV/AIDS programme is dependent on the strength of multi-
sectoral partnerships and collaboration between all relevant agencies. Collaboration between the
justice sector actors especially the Judicial Officers, health sector, social services and non-
governmental agencies provides the best option in the effective management of HIV and related
diseases. Functional and collaborative partnerships between these agencies can significantly
enhance the enabling environment for the provision of key services that prevent, treat, and care
and support people who are vulnerable to HIV and other infections.
This Training Manual is intended for the sensitization of the Judicial Officers on HIV Service
Provision for PWID has been developed to assist actors in the justice sector in building their
understanding of and collaboration with the health sector actors particularly those in HIV
prevention, treatment, care and support services for PWID. It recognizes the importance of
justice sector actors and their institutions in developing their own internal HIV-related
Occupational Health and Safety Protocols as Standard Operating Protocols/Procedures (SOP)
and Guidelines. A protocol for the Judicial Officers can, for instance outline the role of the
Judicial Officers as part of the national multi-sectoral national HIV response. The Training
Manual is therefore built around a series of modules that together form a comprehensive
HIV/AIDS related training programme for the Judicial Officers.
The manual includes modules with the general epidemiological information on HIV globally and
in Kenya with a focus on vulnerable populations and PWID in particular; this is then followed
with modules that are targeted at the Judicial Officers. The modules on the Judicial Officers
focus on how to enable them to respond more effectively to the challenges posed by HIV,
specifically in regard to:
§ The professional and personal risk of HIV among the members of the Judicial Officers; and
§ The prevention, treatment care and support of HIV among the most vulnerable communities
they serve and PWID in particular.
By virtue of their role in upholding law and order, promoting community safety and protecting
human rights, the Judicial Officers are often in frequent contact with PWID. The Training
Manual aims to assist Judicial Officers trainers with designing, tailoring and delivering a training
PREFACE.
package that will ensure that the Judicial Officers at all levels are better informed and equipped
to exploit the unique opportunities their work presents for reaching out to the key populations
they encounter, referring them to HIV prevention, treatment, and care services and for helping
them to adhere to such services.
Enhancing the role of the Judicial Officers as significant partners in a multi-sectoral National
HIV response is critical. The Training Manual provides the background, rationale and training
tools to ensure that the Judicial Officers not only contribute to the National HIV response, but in
doing so carry out their constitutional mandate to observe, promote and protect the Human
Rights and needs of the most vulnerable communities.
The Training Manual focuses predominantly on the role of the Judicial Officers in supporting
HIV/AIDS prevention, treatment, care and support among PWID, while many of the principles
outlined in the modules do also apply to other key populations for HIV such as Men who have
Sex with Men (MSM), Sex Workers (SW), Transgender Populations and People Incarcerated in
Closed Settings.
We apply the term “Judicial Officers” -throughout this manual- to refer -not only- to all Judges
and Magistrates, but also all the partners who aid the court in their determination of cases, as
well as their supervision of the consequent incarceration. These partners also interact with PWID
and other key populations -in the course of their duties. The term “Judicial Officers” in this
Training Manual refers to all those authorized by law to sit in a Court or Tribunal, to
determination of all matters (largely criminal) that come before them.
Both the National AIDS Control Council (NACC) and the National AIDS and STI Control
Programme (NASCOP) are the lead national agencies in the fight against HIV/AIDS in Kenya.
Following the operationalization of the devolved system of government, and the devolution of
the health function, the program activities relating to service delivery and implementation within
the NACC and the NASCOP are set to devolve to the county governments in line with the
functional assignment of the Health function. The institutions are expected to continue providing
the technical support on the development of national policies and the establishment of standards
to guide the delivery of services on key populations including PWID. They may also provide
technical support for capacity development to county governments as their mutual agreement.
To guide on the governance system for the devolved health function, the manual has included
modules on the constitution and its provisions on the right to health and the devolved system of
governance.
14

INTRODUCTION.
The global community has made significant progress in responding to the HIV pandemic but
concentrated epidemics amongst KP still persist and present ongoing challenges. HIV
transmission through unsafe injecting drug use is largely responsible for continued high rates of
HIV transmission amongst PWID. PWID suffer the twin-deficiencies of insufficient provision of
evidence-based comprehensive HIV services targeted at PWID; and a persistent ‘criminalisation’
of PWID (in like manner to the ‘criminalisation’ of the larger community of PWUD, and even
the Civil Society Organisations (CSO) that work in PWUD communities with PWID), that
results in the targeting of PWID (and PWUD) by the Judicial Officers for overt acts of
discrimination.
Pursuant to the World Drug Report, 2014, UNODC, WHO, UNAIDS and the World Bank
estimate that globally there are 12.7 (8.9-22) million people who inject drugs and of those 1.7
million are currently living with HIV1. Preventing HIV and other infections from and among
PWID and other vulnerable populations is a fundamental public health imperative for any
country.
In responding to HIV among PWID, several of the lead international organisations in the HIV
fight, adopted a 2013, Technical Guide targeted at PWID2. That guide lays out a comprehensive
package of 9 interventions, also known as ‘Harm Reduction’ services that include the provision
of;
§ Needle and Syringe Programmes (NSPs);
§ Opioid Substitution Therapy (OST) and other evidence-based drug dependence treatment;
§ HIV Testing and Counselling (HTC);
§ Anti-Retroviral Therapy (ART);
§ Prevention and treatment of Sexually Transmitted Infections (STIs);
§ Condom programmes for PWID and their sexual partners;
§ Targeted Information, Education and Communication (IEC) for PWID and their sexual
partners;
§ Prevention, vaccination, diagnosis and treatment for viral hepatitis; and
§ Prevention diagnosis and treatment of tuberculosis (TB).
This comprehensive package of 9 interventions has been recommended by WHO, UNODC and
UNAIDS, and endorsed at the highest political level including the UN Commission on Narcotic
Drugs (CND), UNAIDS Programme Coordinating Board (PCB), and the UN Economic and
Social Council (ECOSOC). It also helped to shape policy around HIV and harm reduction.

1
United Nations Office of Drugs and Crime. World Drug Report, 2014.
http://www.unodc.org/documents/wdr2014/World_Drug_Report_2014_web.pdf
2
World Health Organization, United Nations Office on Drugs and Crime & Joint United Nations Programme on
HIV and AIDS , WHO, UNODC and UNAIDS Technical Guide for countries to set targets for universal access to
HIV prevention, treatment and care for injecting drug users, 2013, https://www.unodc.org/documents/hiv-
aids/idu_target_setting_guide.pdf. PWID are therein referred to as ‘Injecting Drug Users’.
INTRODUCTION.
Donor agencies such as the Global Fund and the U.S. President's Emergency Plan for AIDS
Relief (PEPFAR) also adopted the guide3.
Whilst the 9 ‘Harm Reduction’ Interventions are the cornerstone of concert programmatic
efforts at HIV prevention, treatment, care and support; they do not adequately address tangential
mental health dimension to HIV prevention, treatment, care and support.
On their appointment, Judicial Officers pledge (swear or affirm) to uphold the laws of their
countries including laws that directly or indirectly protect public health, Fundamental Human
Rights and promote health related programmes and interventions. By supporting programmes
that work with the KP to reduce their risk of HIV infection, Judicial Officers can make a
significant contribution to public health and public safety and ensure that the fundamental right
to health of all citizens is protected.
There are many countries where the provision of a comprehensive range of harm reduction
services for PWID is supported by the government. This results in an environment where HIV
infection risk is dramatically lowered. There are also countries where PWID can face harsh
penalties and are often at greater risk of negative interactions with the Judicial Officers.
Resolving these political, legal, procedural and cultural tensions is critical to improving the
coverage and impact of the National HIV programme. At the same time, counting on the support
of the Judicial Officers in the National HIV programme by giving them the necessary knowledge
and skills is fundamental in resolving these tensions.
BACKGROUND AND RATIONALE.
The role of the Judicial Officers in many public health issues is not well understood or
recognised. Judicial agencies have not been sufficiently integrated into national plans and
policies as key complementary actors for public health services like those for HIV prevention,
treatment, care and support. The culture, operational policies and practices of Judicial agencies
can influence the course of an HIV epidemic, either for good or ill, especially with regard to
populations at particular risk for HIV infection, such as PWID.
Judicial Officers, like all professionals, should be aware of the health and welfare implications of
their actions at the individual and community levels. Individual Judicial Officers can also be at
risk of HIV acquisition due to their professional front line role in the community and also due to
their personal behaviours. Despite these risks, evidence from many countries around the world
indicates that Judicial Officers do not always have an adequate knowledge about HIV and AIDS.
These results in misconceptions about their own HIV risk as well as increasing levels of
stigmatisation and discrimination towards people considered more at risk of HIV. Education and
awareness raising trainings can address misconceptions, encourage attitudinal change and
improve the ability of Judicial Officers to collaboratively respond to HIV as part of a multi-
sectoral approach.

3
WHO, UNODC and UNAIDS Technical Guide for countries to set targets for universal access to HIV prevention,
treatment and care for injecting drug users, 2013, https://www.unodc.org/documents/hiv-
aids/idu_target_setting_guide.pdf.
16

INTRODUCTION.
The central emphasis of the Training Manual for Judicial Officers on HIV service provision for
PWID is to enhance and support the Judicial Officers’ role in the National HIV response by
ensuring that the Judicial Officers are more knowledgeable and competent when working with
each other and with the community in order to be able to contribute to:
§ Prevent HIV among Judicial Officers and their partners and families;
§ Prevent and respond to HIV among key populations and the broader community;
§ Eliminate stigmatisation and discrimination towards vulnerable populations;
§ Ensure effective prevention, treatment, care and support for those infected or affected by
HIV and AIDS;
§ Reduce the impact of the epidemic on individuals and society as a whole;
§ Enhance collaboration between Judicial agencies and services providers, including Civil
Society Organisations (CSO) and Community-Based Organisations (CBO), in responding to
HIV.
§ The collaboration sought by CSO and CBO ought to recognise that CSO and CBO are
policy-bound, mission-led partners; who wish to adopt a mutually-beneficial relationships
with the Judicial Officers that achieves the ends of law enforcement without sacrificing
public health concerns that include HIV.
The Training Manual has been designed to provide a general background on HIV and AIDS
related issues, highlight the correlation between Judicial agencies and HIV, describe priority
areas of HIV training for Judicial Officers, and suggest implementation and evaluation methods.
The Training Manual has the following overall objectives:
§ To assist trainers from law enforcement training institutions to justify, design and conduct
training on HIV/ and AIDS related issues as part of the formal training curricula and to train
future trainers;
§ To provide Judicial Officers with accurate facts and information about HIV and AIDS that
will support better Occupational Health and Safety Practices;
§ To raise the awareness of the Judicial Officers about HIV and Human Rights in order to
better ensure that Judicial Officers implement their duties without stigmatizing and
discriminating against people at risk for HIV infection or those already infected;
§ To enhance the ability of Judicial Officers to improve their collaboration between their
agency and other government and non-government health and social service providers and
civil society and community based organizations in responding to HIV.
The UNODC training modules, namely the “Training Manual for Law Enforcement on HIV
Service Provision for People Who Inject Drugs”, were developed in consultation with former
and current Judicial Officers and address the gaps in knowledge of Judicial Officers; they are
also grounded in international laws and standards, scientific evidence and current good practices.
This manual intended for Judicial Officers in Kenya has heavily borrowed from this manual to
ensure that Judicial agencies in Kenya will attain maximum benefit of the suggested training
programme on HIV and AIDS.
OVERVIEW OF THE TRAINING MANUAL.
In order to achieve the Manual’s overall objectives, the Training Manual includes 13 Practical
Training Modules. The justification for each module as well as the Learning Objectives,
17

INTRODUCTION.
introduces each module; with additional background information on each topic to round off the
each individual module.
There is a separate, companion Instructors’ Manual titled, “Training Manual for Judicial
Officers on HIV Service Provision for People Who Inject Drugs: Instructors’ Guide” that is
designed specifically for instructors, with further details on the topics covered in each module.
In addition to the companion Instructors’ Manual, there are a series of accompanying Power-
Point Slide Presentations, specifically designed to aid in the delivery by the Judicial Officers
Trainers of each module of the HIV training and instructions targeted at the Judicial Officers
Trainees.
The 13 modules have been designed to deliver relevant training for Judicial Officers to ensure
adequate coverage across the following HIV and AIDS related areas:
1. Module 1a: Part A: Overview of HIV and AIDS: Epidemiology, Prevention, Treatment
and Care.
2. Module 1b: Part B: Overview of HIV and AIDS: Kenya’s National Statistics as
Pertains to PWID.
3. Module 2a: Part A: Overview of HIV & PWID in Kenya’s Legal Context: The
Constitution, 2010 and the Right to Health.
4. Module 2b: Part B: Overview of HIV & PWID in Kenya’s Legal Context: Health as a
Devolved Function.
5. Module 2c: Part C: Overview of HIV & PWID in Kenya’s Legal Context: The
Legislative and Policy Framework Relating to Drug Use.
6. Module 3: Occupational Health and Safety: HIV and Hepatitis.
7. Module 4a: Part A: Overview of the Role of Judicial Officers.
8. Module 4b: Part B: Overview of the Role of Judicial Officers in Public Health and the
Importance of Working with Key Populations.
9. Module 5: Risk and Vulnerability: Policing Key Populations and Protecting Human
Rights.
10. Module 6: Introduction to Drugs, Policing and Harm Reduction.
11. Module 7: Part A: The Comprehensive Package for Prevention of HIV, Hepatitis and
TB among PWID.
12. Module 8: Law Enforcement and the Use of Discretion, Drug Diversion Programmes
and the Role of Ethical Frameworks.
13. Module 9: Creating Multi-Sectoral Partnerships to More Effectively Work with Key
Populations to Enhance the National HIV/AIDS Response.
18

INTRODUCTION.
PROPOSED WORKSHOP SCHEDULE

DAY 1. DAY 2. DAY 3. DAY 4.
MORNING SESSIONS.
§ Registration. § Daily Registration. § Daily Registration. § Daily Registration.
§ Opening ceremony. § Review of the Previous § Review of the Previous § Review of the Previous
§ Trainers Introductions. Day’s Activities. Day’s Activities. Day’s Activities.
§ Trainees Introductions.
§ Outlining the
objectives of the
Course.
MODULE1A -PART A: MODULE2C -PART C: MODULE5: MODULE8:
OVERVIEW OF HIV AND OVERVIEW OF HIV & PWID RISK AND LAW ENFORCEMENT AND THE
AIDS: IN KENYA’S LEGAL CONTEXT: VULNERABILITY: USE OF DISCRETION, DRUG
Epidemiology, The Legislative and Policy Policing Key Populations DIVERSION PROGRAMMES
Prevention, Treatment Framework Relating to Drug and Protecting Human AND THE ROLE OF ETHICAL
and Care. Use. Rights. FRAMEWORKS.
MORNING TEA BREAK.
MODULE1B -PART B: MODULE3: MODULE6: MODULE9:
MORNING SESSIONS.
OVERVIEW OF HIV AND OCCUPATIONAL HEALTH INTRODUCTION TO DRUGS, CREATING MULTI-SECTORAL

AIDS: AND SAFETY: POLICING AND HARM PARTNERSHIPS TO MORE
Kenya’s National HIV and Hepatitis. REDUCTION. EFFECTIVELY WORK WITH
Statistics as Pertains to KEY POPULATIONS TO
PWID. ENHANCE THE NATIONAL
HIV/AIDS RESPONSE.
LUNCH BREAK.
MODULE2A -PART A: MODULE4A -PART A: MODULE7: § Closing ceremony.
OVERVIEW OF HIV & OVERVIEW OF THE ROLE OF THE COMPREHENSIVE § Certificates of completion
PWID IN KENYA’S JUDICIALOFFICERS. PACKAGE FOR PREVENTION
LEGALCONTEXT: OF HIV, HEPATITIS AND TB
The Constitution, 2010 AMONG PWID.
and the Right to Health.
AFTERNOON SESSIONS.
AFTERNOON BREAK.
MODULE2B -PART B: MODULE4B -PART B: MODULE7:
OVERVIEW OF HIV & OVERVIEW OF THE ROLE OF (Continued).
PWID IN KENYA’S JUDICIAL OFFICERS IN THE COMPREHENSIVE
LEGALCONTEXT: PUBLIC HEALTH AND THE PACKAGE FOR PREVENTION
Health as a Devolved IMPORTANCE OF WORKING OF HIV, HEPATITIS AND TB
Function. WITH KP. AMONG PWID.
19

MODULE 1A.
OVERVIEW OF HIV AND AIDS:

EPIDEMIOLOGY, PREVENTION, TREATMENT
AND CARE.
M ODULE 1 A .
OVERVIEW OF HIV A N D AIDS: E P ID E M IO L O G Y , PREVENTION,
TREATMENT AND CARE.
The purpose of this module is to ground the participants’ perceptions of the global HIV/AIDS
epidemic in facts; and enlighten the participant on the various international responses to the
scourge; particularly as relates to PWIDS.
It provides a cursory examinations the global epidemiology of HIV, the interventions

recommended (HIV prevention, treatment, care and support). It identifies closely-related, blood-
borne viruses, specifically Hepatitis C.
The module is designed to orient Judicial Officers to Kenya’s HIV/AIDS response through the
review of national HIV/AIDS data. This is intended to commence the sensitization of Judicial
Officers, to their role in the national HIV response, particularly as pertains to interaction with
PWID.
LEARNING OBJECTIVES.
At the completion of this Module, participants should have an:

§ Increased knowledge and understanding of the global HIV epidemic and the political and
programmatic contexts of the global efforts;
§ Up-to-date knowledge of the epidemiology and policy and programmatic response to HIV
and AIDS in the country in which they work;
§ Improved understanding of what HIV and AIDS is and how HIV is transmitted, prevented,
and treated; as well as a basic understanding of transmission and prevention of viral Hepatitis
B and Hepatitis C;
§ An understanding of current good practices in preventing, treating, caring and supporting
people vulnerable to or people living with HIV and AIDS;.
§ An understanding of their own professional and personal risk.
§ An introductory understanding of Harm Reduction and be able to list of what constitutes the
‘Comprehensive Package’ of interventions for HIV prevention, treatment and care among
PWID.
It is highly recommended that a senior public health Officers figure familiar with national HIV
and AIDS situation and response including the gaps, challenges and opportunities, be seconded
to speak to participants during the delivery of this Module.
Experiences in delivering training to Judicial Officers on HIV suggests that when Judicial
Officers are taught about HIV prevention, treatment and care, HIV risk practices and the country
situation, they can often have many pertinent questions relating to their own perceived risks. An
expert on HIV and AIDS is a useful addition to this session to be able to respond to participant
inquiries.
MODULE 1A.
Since being first clinically described in 1981, HIV has become an epidemic in many countries,
posing a threat to public health, socioeconomic development, security and human rights.
According to the UNAIDS Report on the Global AIDS Epidemic 2013; globally, there were
approximately 35.3 (32.8-38.8) million People Living With HIV (PLWHIV) in 20124. The
incidence of HIV/AIDS is especially high in sub-Saharan Africa, the Caribbean, Eastern Europe
and Central Asia (where 1% of the population were living with HIV in 2011).
Although rates of HIV infection have now begun to decrease in many parts of the world, this is
not the case for certain vulnerable population groups in many countries across Africa, Eastern
Europe as well as South, South East Asia, Central and West Asia where concentrated epidemics
persist among PWID, SW, MSM and prisoners5.
In 2012, 1.6 (1.4-1.9) million people died from AIDS, down from 2.3 (2.1-2.6) million in 20056.
The provision and scale up of anti-retroviral therapy has significantly contributed to this decrease
in morbidity and mortality associated with HIV/AIDS. In Eastern Europe and Central Asia,
however, there was a 21% increase in mortality from 2005 to 2011. Most countries have devised
national HIV programmes that include a variety of strategies and intervention programmes and
several international bodies have dedicated extensive resources to HIV/AIDS prevention,
treatment, care and support. The UN Millennium Development Goals (MDGs), established in
2000, pledged to halt and reverse the spread of HIV/AIDS by 20157. The UN Declaration of
Commitment on HIV/AIDS in 2001, and again in 2006 and 2011 further established HIV/AIDS
as one of the most crucial development issues in the world8. All UN member countries have
drawn up comprehensive plans to fulfill the commitment.
KENYA’S NATIONAL STATISTICS.
The Kenya AIDS Indicator Survey, 2012 (KAIS, 2012) found that the persons living with HIV
had the national HIV prevalence rate of:
§ 7.2% of adults in Kenya or about 1,400,000 million people, aged 15 to 64 years in 2007.
§ 5.6% of adults in Kenya or about 1,200,000 million people, aged 15 to 64 years in 2012.

4
Joint United Nations Programme on HIV/AIDS. Global report: UNAIDS report on the global AIDS epidemic 2013.
http://www.unaids.org/en/media/unaids/contentassets/documents/epidemiology/2013/gr2013/unaids_global_report_
2013_en.pdf.
5
See Joint United Nations Programme on HIV/AIDS. Global report: UNAIDS report on the global AIDS epidemic
2013.
6
See Joint United Nations Programme on HIV/AIDS. Global report: UNAIDS report on the global AIDS epidemic
2013.
7
United Nations Millennium Development Goals. http://www.un.org/millenniumgoals/bkgd.shtml.
8 1/
United Nations. Declaration of Commitment on HIV/AIDS-United Nations special session on HIV/AIDS.
Adopted by the UN General Assembly Twenty-sixth special session: June 25-27, 2001. New York, United Nations,
2001. Resolution A/RES/S-26/2. 2/ United Nations. 60/262. Political Declaration on HIV/AIDS. Resolution adopted
by the UN General Assembly, 60th Session, June 2, 2006. New York, United Nations, 2006 Contract No.: Resolution
A/RES/60/262. 3/ United Nations General Assembly. General Assembly Resolution 65/277 - Political Declaration on
HIV/AIDS: Intensifying our Efforts to Eliminate HIV/AIDS. New York, United Nations, 2011.
22

MODULE 1A.
In 2009, a Modes of Transmission Study theorizes that concentrated HIV epidemic is driven –at
least in the initial phases- by sub-groups that engage in high-risk behavior. These sub-groups
include PWID, who are estimated to account for 3.8% of the prevalence rate for new infections,
nationally9. At provincial-level, PWID accounted for 5.8% & 6.1% of the prevalence rate for
new infections in former Nairobi and Coast Provinces, respectively, which is significantly
higher than the nationally average.
The 2009 Study highlighted fact that:

§ The concentrated epidemic amongst KPs (namely: PWID, together with FSWs & MSMs)
contribute 33% to new HIV infections in Kenya, and
§ These KPs were grossly under-served in the national HIV response.
On the basis this evidence, and the findings of the Kenya AIDS Indicator Survey (2008/9), the
Government of Kenya revised the existing national HIV programming frame-work and
prioritized comprehensive, targeted programming for KPs in the 2009-2013 Kenya National
HIV and AIDS Strategic Plan (KNASP III).
UNIVERSAL ACCESS.
In 2010, a UNESCAP Resolution resolved to make a call for action to achieve Universal Access.
“Universal Access”, which refers to the maximal coverage of HIV prevention, treatment, care,
and support services for those who require them and should be the underlying principle in the
design and delivery of a local, national, regional and international HIV Programme”. To
achieve Universal Access, “whole-of-government responses to HIV” responses have been
recommended to improve the legal and programmatic environment for delivery of services. The
Political Declarations and various UN Resolutions specifically mention the need for
collaboration between the criminal justice, law enforcement, health and civil society
organizations in pursuit of Universal Access10.
With increasing awareness and acknowledgement of the important role of Judicial Officers in the
National HIV response, there is a crucial need to build the baseline knowledge of Judicial
Officers about the HIV epidemic at the local, national and global levels and its prevention,
treatment and care. The Judicial institutions should fundamentally be aware of how they can
contribute to Universal Access by their contribution to a successful national HIV response.
The reality in Kenya is that a significant proportion of Public Health Programmes (i.e. the HIV
Prevention, Care, Treatment and Support Programmes) that target KP are handled by CSO and
CBO. The role of these CSO and CBO in complimenting the government’s efforts to provide
Public Health Services, to such KP as: 1/Female Sex Workers (FSW), 2/Men who have Sex with
Men (MSM), and 3/People Who Inject Drugs (PWID), is invaluable.

9
Sourced from The Kenya HIV County Profile, 2016,which cites the 2008, NACC Survey.
10
UNESCAP, 2010. ESCAP Resolution 66/10: Regional call for action to achieve universal access to HIV
prevention, treatment, care and support in Asia and the Pacific. Available at:
http://www.unescap.org/sdd/issues/hiv_aids/Resolution-66-10-on-HIV.pdf. UNESCAP, 2011. ESCAP Resolution
67/9: Asia-Pacific regional review of the progress achieved in realizing the Declaration of Commitment on
HIV/AIDS and the Political Declaration on HIV/AIDS. Available at:
http://www.unescap.org/sdd/meetings/hiv/hlm/English/HIV_IGM1_INF5.pdf.
23

MODULE 1A.
RECOMMENDED HIV PREVENTION PROGRAMS FOR PWID.
HIV Prevention programs need to:

§ Be tailored to specific contexts to ensure that the prevention response is appropriate; and
§ Ensure that resources are allocated to interventions that will have the greatest efficiency
and impact.
In this regard, Programs for the prevention, care, and treatment of HIV and STIs need to be
developed (and existing programs need to be tailored) to reach and effectively address the
particular needs of PWID. To achieve this, the programmes need to be directly linked to the
PWID. A participatory approach must be adopted in the program management, planning, and
implementation.
The programs sustainability will be anchored in the meaningful involvement of PWID in

processes that build consensus and ownership of the programs while empowering them to seek
HIV services and to advocate for their health-care and human rights. That ownership gives
PWID a vested interest in the success of the programs.
RECOMMENDED HIV CARE & TREATMENT PROGRAMMES FOR PWID 11
The goal of HIV care and treatment is to restore the immune system, reduce HIV and AIDS
related morbidity and mortality, improve quality of life, decrease viral-load and, reduce HIV
transmission to partners and associates of PWID. It is important for HIV-positive PWID to have
access to HIV care and treatment in line with national guidelines. This access is within the equal
rights of PWID and should not be obstructed on the basis of unconstitutional discriminatory
practices.
ELEMENTS OF HIV CARE AND TREATMENT:
KP should have access to a core package of HIV care and treatment services, which includes:
1. Assessments for staging and CD4 count,
2. Anti-retroviral treatment for those eligible (based on WHO staging),
3. Management of opportunistic infections (OIs),
4. Prevention with positive interventions,
5. Palliative care, and
6. Home-based care.
Aligned to WHO Guidelines (2011), areas for intervention of particular importance for KP living
with HIV are as follows
1. Psycho-social counseling and support.
2. Disclosure, partner-notification, as well as testing and counseling.
3. Cotrimoxazole prophylaxis for opportunistic infections.
4. Tuberculosis prophylaxis.

11
Transposed from the NASCOP website/web portal.
24

MODULE 1A.
5. Prevention of fungal infections.

6. Prevention of sexually-transmitted and other reproductive tract infections.
7. Prevention of malaria.
8. Vaccination for selected vaccine-preventable diseases (Hepatitis B, Pneumococcal,
Influenza and Yellow Fever Vaccines).
9. Nutrition.
10. Family planning.
11. Preventing mother-to-child transmission of HIV.
12. NSPs and OST.
13. Water, sanitation and hygiene.
After initiation of ART, the utility of many of these interventions does not necessarily decrease
and should be maintained throughout treatment. A follow-up mechanism should be developed to
ensure that the drop-out rate is minimized, while maintaining principles of confidentiality.
§ Special Considerations for HIV Care and Treatment of PWID.

A number of recommendations have been made in respect of the delivery of HIV care and
treatment for PWID. They include the following:
§ Ensuring Access to Services:
To increase HIV care and treatment access by key populations, it is beneficial to modify
comprehensive care centers, where necessary, like creating flexible working hours to
accommodate KP clients with their varied schedules. It is also important to train service
providers on delivering “Key-Population-Friendly” services and create demand for the
services through targeted outreach that does not expose them to threats.
§ Ensure Uninterrupted Supply of ART and/or OI Prophylaxis:

KP clients are highly mobile and move within and between Counties. Due to this high
mobility, they may need to be provided with ARV supplies that cover longer periods of
time or linked to other clinics offering ARVs to ensure an uninterrupted supply of drugs.
It is important for service providers to apply flexibility in their design of service
provision for PWID.
§ Tailored “Prevention with Positive” Interventions:

Prevention with positive interventions is designed to reduce HIV transmission between
PWID living with HIV and their associates and increase the well-being of the PWID
living with HIV. Positive-prevention interventions may need to be modified to
accommodate various PWID parameters. A crucial component of positive prevention is
the focus on reducing the risk of HIV transmission through:
o Risk-assessment and risk-reduction counseling, to reduce the sharing of drug
injecting paraphernalia.
o Provision of services tailored to provide psycho-social, individual or group
support that addresses their issues.
§ Screening and Treatment for Alcohol and Drug Abuse:

KP often experience multiple and cross-cutting levels of risk (e.g. drug and alcohol abuse
over and above their primary vulnerabilities). Alcohol and drug use interferes with
25

MODULE 1A.
adherence to ARVs and some illicit drugs are known to result in adverse reactions when
combined with ARVs. Therefore service providers should screen KP clients for alcohol
and drug abuse
§ Quarterly STI Screening of PWID.

HIV-positive KP clients should be syndromatically screened for STIs at least quarterly
and provided with treatment. The screening should be done in a manner that respects the
dignity of the persons of PWID and should follow the necessary procedures including
protection of the right to confidentiality. Quarterly screening provides an opportunity to
detect and treat anal, oral, and genital STIs early, deliver risk reduction counseling and
increase access to condoms and lubricants.
HARM REDUCTION INTERVENTION SERVICES
WHO, UNODC and UNAIDS through their Technical Guide recommend a comprehensive
package of nine interventions, also known as ‘Harm Reduction’ services, for people who inject
drugs to stop the spread of HIV among this population group12. These are:
partners;
§ Prevention, vaccination, diagnosis and treatment for viral Hepatitis; and
§ Prevention diagnosis and treatment of Tuberculosis (TB).
The Commission on Narcotic Drugs (CND), the UNAIDS Programme Coordinating Board
(PCB) and the United Nations Economic and Social Council (ECOSOC) endorsed the
comprehensive package for PWID.
The need for a comprehensive HIV response among PWID was also reflected in the
commitments made by the Member States at the United Nations General Assembly in 2001,
2006, 2008 and in 2011.
CASE STUDIES AND PRACTICAL SESSIONS.
For the Primary Case Studies and Practical Sessions on the Module, refer to the Annex titled
“Case Studies and Practical Sessions” at the end of this Manual; or the Instructor may opt to
simply move on to the next module.

12
treatment and care for injecting drug users, 2012 revision,
http://www.unodc.org/documents/hivaids/publications/People_who_use_drugs/Target_setting_guide2012_eng.pdf
26

MODULE 1B.
OVERVIEW OF HIV AND AIDS: KENYA’S

NATIONAL STATISTICS AS PERTAINS TO PWID.
M ODULE 1 B .
O V E R V I E W O F HIV AND AIDS: K E N Y A ’ S N A T I O N A L S T A T IS T IC S AS
P E R T A IN S T O PWID.
The module is designed to orient Judicial Officers to Kenya’s HIV/AIDS response through the
review of national HIV/AIDS data. This is intended to commence the sensitization of Judicial
Officers, to their role in the national HIV response, particularly as pertains to interaction with
PWID.
At the completion of this Module, participants should have an:

§ Increased knowledge and understanding of Kenya’s HIV epidemic.
§ Increased knowledge and understanding of the political and programmatic contexts of
Kenya’s national efforts.
§ Up-to-date knowledge of Kenya’s epidemiology.
§ Up-to-date knowledge of the policy and programmatic response to HIV and AIDS in Kenya.
MODULE CONTENT.
KENYA’S COUNTY STATISTICS OF PWID.
In the Kenya HIV County Profile, 2016 developed by NACC and NASCOP, every County is
profiled with a recurring sequence of 7 tables. In the recurring Table No: 7, the report attempts
to profile the same 3 Key Populations in all 47 counties in Kenya. The study identified the
following key populations: 1/Female Sex Workers (FSW), 2/Men who have Sex with Men (MSM),
and 3/People Who Inject Drugs (PWID). They are all deemed to be at the highest risk of
contracting and transmitting HIV. However, they have the least access to HIV prevention
Services, as well as HIV care and treatment services. This is primarily because the wider society
stigmatises and even criminalises their behaviour.
SUMMARY OF THE HIV COUNTY PROFILE FOR PWID.
The counties of Migori and Nairobi City have the highest prevalence of PWID; both posting a
County Key Population Size Estimate of 6,216 PWID13. The third highest county being,
Mombasa that posted 2,101 PWID; whilst the fourth through to the sixteenth county all range
between 597 to 109 PWID. The seventeenth through to the twenty-fifth county all range between
67 to 11 PWID.

13
This data is questionable based on the fact that: 1) the 2 counties -mentioned- have identical figures (as did the
counties of Marsabit & Makueni that both posted 3 PWID), and further 2) the figures themselves are exceedingly
high vis-á-vis the data posted by other counties. The data may need review.
MODULE 1B.
The remaining 5 counties are in the single-digit range, with an additional 6 counties posting a nil
figure. There surveys do tend to provide empirical data on most of the Harm Reduction Services
(such as NSPs and OSTs).
The County of Mombasa topped the survey, achieving the testing of 78% of its targeted PWID.
There are 7 counties that posted data14, with the second through to the fifth county ranging
between 73% to 17%. The remaining counties are in the single-digit range. Coincidentally, the 3
counties with PWID with the highest risk of contracting and transmitting HIV, are all coastal,
(i.e. Mombasa, Kwale & Kilifi).
The HIV county profile for PWID reveals that 36 out of 47 counties have posted a figure for the
County Key Populations Size Estimate; Whilst 6 out of those 36 counties posted a nil figure
(namely: 1/Kericho, 2/Nandi, 3/Taita/Taveta, 4/Tharaka-Nithi, 5/Turkana & 6/West Pokot). The
total of the County Key Populations Size Estimate is 18,486, which is 101% of the National Key
Populations Size Estimate (i.e. 18,327). In some cases, the nil figures are simply a reflection of
the fact that there has been no surveying of these populations, since the inability to map those
populations when there was a mapping survey done in 2012.
These estimates are the product of the 2012 mapping and estimation exercise that was primarily
conducted by NASCOP. However, not every County was mapped (actually 14 counties were
expressly excluded, namely: 1/Turkana, 2/Nandi, 3/Tharaka-Nithi, 4/Marsabit, 5/Baringo,
6/
Elgeyo/Marakwet, 7/Garissa, 8/Isiolo, 9/Bomet. 10/Mandera, 11/Nyandarua, 12/Samburu, 14/Tana
River & 14/Wajir).
In 7 of the Counties, programmes were expressly developed to reach those PWID; (namely: 1/
Kiambu, 2/ Kilifi, 3/Kisumu, 4/ Kwale, 5/ Migori, 6/ Mombasa, & 7/ Nairobi City). 22 counties
expressly have no programme currently developed to reach PWID.
Valiant attempts were subsequently made to test a significant proportion of the estimate PWID in
at least 7 counties (namely: 1/ Mombasa (78%), 2/ Kwale (73%), 3/ Kilifi (44%), 4/ Migori (28%),
5/
Kisumu (17%), 6/ Nairobi City (9%), & 7/ Kiambu –that posted a nil figure). The HIV testing
per county targeted the testing of as close to the national targets of 80% of the counties’
estimated PWID as possible.
In 2015, NASCOP conducted a Polling Booth Survey of PWID in 4 counties, which surveyed 3
specific areas of interest:
§ The prevalence of shared needles in the Last 1 month [1/ Kilifi (8%), 2/ Kisumu (63%), 3/
Mombasa (12%), and 5/ Nairobi (9%)].
§ The quantification of visits to intervention centres [1/ Kilifi (76%), 2/ Kisumu (65%), 3/
Mombasa (67%), and 5/ Nairobi (78%)], as well as t
§ The regularities of incidences of arrest and police harassment. [1/ Kilifi (38%), 2/ Kisumu
(39%), 3/ Mombasa (46%), and 5/ Nairobi (44%)].

14
Although Kiambu County posted 0%.
29

MODULE 1B.
KENYAN STATISTICS ON PWID15.
1. Estimated Size of Population. 133,675

2. HIV Prevalence.
3. Know HIV Status.
4. Anti-Retroviral Therapy Coverage. 66.8 %
5. Condom Use. 70.3 %
6. Clean Needle Use at Last Injection. 89.5 %
7. Needles and Syringes Distributed per Person Who Injects (2016). 155
8. Coverage of HIV Prevention Programmes.
9. Coverage of Opioid Substitution Therapy (2016). 8.8 %
10. Naloxone Available (2016). No.
11. Safe Injection Rooms Available (2016). No.
12. Avoidance of Services Due to Stigma and Discrimination.
TABLE 1: KENYAN STATISTICS ON PWID.

15
Sourced from: UNAIDS Data 2017, (reference book of the Joint United Nations Programme on HIV/AIDS
(UNAIDS).
30

MODULE 2A.
OVERVIEW OF HIV & PWID IN KENYA’S

LEGAL CONTEXT: THE CONSTITUTION, 2010
AND THE RIGHT TO HEALTH.
M ODULE 2 A .
O V E R V I E W O F HIV & PWID I N K E N Y A ’ S L E G A L C O N T E X T : T H E
C O N S T IT U T IO N , 2010 A N D T H E R I G H T T O H E A L T H .
The purpose of this module is to develop the participants’ understanding of what Kenya’s
Constitution, 2010, proffers to all Kenyans as their rights as pertains to health & health-care
services generally. The module seeks to awaken the participants’ consciousness as regards the
Human Rights of PWID, and the need to empower this KP, so they may access these rights.
The purpose of this Module is to:

§ Provide broad information on the Right to Health as provided by the Constitution of Kenya.
§ Outline the constitutional provisions relating to that Right to Health.
§ Outline the state’s responsibilities as regards the implementation of that Right to Health.
§ Outline the international standards that pertain to the implementation of the Right to Health
in Kenya16.
After completion of this Module, participants should be able to demonstrate that:

§ They have increased their knowledge and understanding of the applicable constitutional
provisions relating to the Right to Health.
§ They can empathize with PWID quest for access to the health-care services they are entitled
to as a right.
§ Appreciate the unique circumstance of FWID/FWUD in the wider context of
PWID/PWID.
§ They can undertake the Constitutional Interpretation in a manner that embraces the
aspirational dictates of the Bill of Rights in the Constitution of Kenya, 2010.
MODULE CONTENT.
THE RIGHT TO HEALTH IN THE CONSTITUTION.
Article 43 of the Constitution recognizes the Right to the Highest Attainable Standards of Health
including the Right to Reproductive Health Services. It also recognizes the Right to Access Free
Emergency Treatment for all.
The Right to Health exists interdependently with several other Rights, and is ultimately only
fully exercisable when those other Rights are enjoyed. Those other Rights include:
§ Such Socio-Economic Rights, as the: Rights to Food, Water and Sanitation among others;
and
§ Such Civil-Political Freedoms, as: Freedom from Torture, Cruel, Inhuman and Degrading
Treatment.

16
As defined through the General Comment No. 14 of the United Nations Committee on Economic, Social and
Cultural Rights.
MODULE 2A.
Other rights that complement the Right to Health include the Right to Access to Information
(Article 35), the Right to Privacy (Article 31) which includes the Right to Confidentiality.
THE RIGHT TO HEALTH IN RATIFIED INTERNATIONAL TREATIES.
By virtue of Article 2 of the Constitution, the standards relating to Right to Health as recognized
in international treaties -that Kenya has ratified- are also recognized. The Right to Health was
first formally recognized in the 1948, ‘Universal Declaration of Human Rights’ that
acknowledges “the inherent dignity” of all human beings without exception and the “equality
and inalienability” of Human Rights for all members of the human family. And it is on the basis
of this concept of the person, and the fundamental dignity and equality of all human beings, that
the notion of Patient’s Rights was developed. The Right to Health is a fundamental part of our
Human Rights and Right to Live in Dignity. Human Rights are inter-related and interdependent; it
is therefore the case that the enjoyment of a particular right is often depended on the enjoyment
of another. This is the underpinning rationale for the ancillary acknowledgement that health
services, goods and facilities must be provided to all without any discrimination.
In this context all persons, including those whose conduct has been criminalized, and who
themselves have been stigmatized and marginalized by the wider society, like PWID; should all
have equal right to access the health services and programmes and the facilities that provide
services.
The treaties ratified by Kenya, generally make it the government’s responsibility to:
§ Take all appropriate policy, legislative and executive measures to address the elimination of
discriminatory practices in the implementation of governmental functions, (which may be
tended to cover access to health services).
§ Generally amongst all its citizens:
o International Covenant on Civil and Political Rights. (ICCPR),
o International Covenant on Economic Social and Cultural Rights, (ICESCR), &
o African Charter on Human and People’s Rights. (ACHPR).
§ Specifically amongst women: Convention on the Elimination of Discrimination
Against Women. (CEDAW).
§ Specifically amongst children: Convention on the Rights of the Child.
§ Specifically amongst disabled persons: International Convention on the Rights of
Disabled Persons. (CRDP).
SUSTAINABLE DEVELOPMENT GOALS.
Health-related issues are a significant component of the goals targeted by the global strategies on
development. The current Sustainable Development Goals set for attainment by governments by
2030 , include 17 goals of which, Goal #3 is to ensure healthy lives and promote well-being for
all at all ages. The targets set under this goal are:
.
Target 3.3: End AIDS, tuberculosis, malaria and neglected tropical diseases and combat
hepatitis, water-borne diseases and other communicable diseases.
Target 3.5: Where Governments are required to strengthen the prevention and treatment of
33

MODULE 2A.
substance abuse.
Target 3.7: Ensure universal access to sexual and reproductive healthcare services and
integrate reproductive health into national strategies and programmes.
Target 3.8: Achieve universal health coverage.
Target 3.10b: Support the research and development of vaccines for communicable and non-
communicable diseases and provide access to affordable essential medicines
and vaccines
Target 3.10c: Substantially increase health financing and the recruitment, development,
training and retention of the health workforce; and
Target 3.10d: Strengthen the capacity of all countries, especially developing countries for
early warning, risk reduction and management of national and global health
risks.
GOVERNMENT DUTY IN REGARD TO THE RIGHT TO HEALTH.
The Constitution saddles the government with certain responsibilities in respect of the Right to
Health. The government is obliged to “observe, respect, protect, promote and fulfil” all the
enumerated rights. (Article 21).
§ To “Observe” and “Respect” one must:
§ Not engage in any activities that undermine the enjoyment of any of the Human Rights by
all citizens -regardless of their status.
§ To “Protect”, “Promote” and “fulfil” one must:
§ Adopt policies and laws that guide the implementation of all the enumerated rights;
§ Set standards, against which implementation actions can be measured; including
standards to ensure the progressive implementation of Socio-Economic Rights in Article
43 -which include the Right to Health.
§ Implement the international obligations that the country has committed itself to.
§ Ratify the International Human Rights Instruments and other International Resolutions.
The government achieves domestication through the integration of these international
standards into national and county policies, laws and operational frameworks. (Article
21).
§ Make budgetary provisions to ensure that policies, laws, programmes on Human Rights
are implemented.
The implementation must be conducted in a manner that remains faithful to the Values and
Principles of the Constitution, as well as the responsibility to respect Human Rights. Thus in
delivering upon the different mandates; there must demonstrably be: Equality, Non-
Discrimination and Inclusion. Implementers are further obliged to conduct themselves with
Integrity. (Article 6, 10, 27, and Chapters 6).
The responsibilities are vested at both levels of government. However each level is constrained
to contextualise implementation to its functions, e.g.:
§ The national government is mandated to develop the national policies on Human Rights and
to set standards.
§ The county governments include these policies and standards in the county operational
policies and laws -as may be necessary- and above all in the service delivery activities.
34

MODULE 2A.
THE ROLE OF THE JUDICIARY IN SAFEGUARDING THE RIGHT TO HEALTH.
The role of the Judiciary is provided in Article 159 of the Constitution which vests Judicial
Authority in the courts and tribunals. The Judiciary is an independent arm of government with
hierarchical structures.
The primary mandate of the Judiciary is to dispense Justice to all irrespective of status and to
protect and promote the purpose and principles of the Constitution. The Constitution has further
provided express mandates to the courts on matters relating to human rights. The courts, in
determining whether a Human Right or Fundamental Freedom in the Bill of Rights has been
denied, violated, infringed or threatened17, are required to “develop the law to the extent that it
does not give effect to a Right or Fundamental Freedom” by “adopting the interpretation that
most favours the enforcement of a Right or Fundamental Freedom”18.
As an example, if PWID have equal rights to access health services, the courts in interpreting
cases involving PWID should ensure that the decisions they make, facilitates rather than
obstructs or denies the rights of PWID to access health services.
The Courts, like all other organs and institutions of the State including the Police, are also
expected to apply the values and principles of the constitution on Article 10 as they interpret any
law19.
The Principle of Equality is provided in Article 27 of the Constitution, which recognizes every
person as being equal before the law with the Right to Equal Protection and Equal Benefit of the
law. It prohibits any form of discrimination and has elaborate provisions on ways of ensuring
inclusion of marginalized groups. Article 27(8) sets the constitutional minimum ratio of gender
representation in all appointive and elective bodies.
THE RIGHT TO HEALTH AMIDST OTHER RIGHTS OF FWIDS/FWUD.
INTRODUCTION
The Rights of Arrested Persons are provided for is provided for by Article 49(1) of the
Constitution of Kenya. They are the right to:
(a) To be informed promptly, in language that the person understands, of—
(i) The reason for the arrest;
(ii) The right to remain silent; and
(iii) The consequences of not remaining silent;
(b) To remain silent;
(c) To communicate with an advocate, and other persons whose assistance is necessary;

17
Article 164 of the Constitution of Kenya, 2010.
18
19
35

MODULE 2A.
(d) Not to be compelled to make any confession or admission that could be used in evidence
against the person;
(e) To be held separately from persons who are serving a sentence;
(f) To be brought before a court as soon as reasonably possible, but not later than–
(i) Twenty-Four(24) Hours after being arrested; or
(ii) If the Twenty-Four(24) Hours ends outside ordinary court hours, or on a day that is
not an ordinary court day, the end of the next court day;
(g) At the First (1st) court appearance, to be charged or informed of the reason for the
detention continuing, or to be released; and
(h) To be released on bond or bail, on reasonable conditions, pending a charge or trial, unless
there are compelling reasons not to be released.
Sub-Article 2 provides that “a person shall not be remanded in custody for an offence if the
offence is punishable by a fine only or by imprisonment for not more than Six (6) Months.”
The Rights of Arrested Persons are also provided for in other international laws which apply in
Kenya by virtue of Article 2(5) and (6). These include Article 9 (3) of the International
Covenant on Civil and Political Rights, Article 6 of the African Charter on Human and
People’s Rights and Article 9 of the United Nations Declaration of Human Rights. However,
none of these provisions are as detailed as Article 49 of the Constitution.
Article 51 (1) of the Constitution astutely provides that the rights of arrested persons in addition
to the Rights listed above, intersect with other Rights provided for in the Constitution. The most
key of these rights are: Freedom from Discrimination as provided for in Article 27, the Right to
Human Dignity as provided in Article 28, the Right to Freedom from Violence as set out on
Article 29 (c), Freedom from Torture as provided for in Article 29(d), Freedom from
Degrading, Cruel or Inhuman Treatment as set out in Article 29 (f) and the Rights of Accused
Persons as provided under Article 50.
FWID/FWUD are not exceptions to the application of these Rights. They are entitled to have all
their Rights respected in the course of their arrest and while they are in police custody.
CONTEXT OF FWID/FWUD IN KENYA.
FWID/FWUD are subjected to a lot of Stigmatisation and Discrimination by their communities.

They are shunned and ostracised for their ailment by their families and their communities at
large more than their male counterparts. This makes FWID/FWUD an especially vulnerable KP
because not only are they are unable to defend their Rights, but also the community is also
unwilling to step in and advocate for their rights on their behalf. Consequently, FWID/FWUD
are seldom afforded the Rights discussed above.
Majority of the FWID/FWUD are single mothers with no fixed homes. Thus, they squat in drug
dens or live on the streets. This leaves them and their children vulnerable to harassment and
attacks from all possible sides including the community, motorcycle (Boda-Boda) operators and
the police.
36

MODULE 2A.
It is common for FWID/FWUD to be arrested under the guise of prostitution-related offences

such as idling20 or to be arrested for loitering or sex work. This is despite the fact that
prostitution, in itself is not a crime and offences such as loitering and idling are very difficult to
prove. It is also common for women to be arrested under the guide of having committed the
office of being found in a “… house, room or place to which persons resort for the purpose of
smoking, inhaling, sniffing or otherwise using any narcotic drug or psychotropic substance…”21
This is another offence that is difficult to prove before a Court of Law. Looking at these
offences, it can be concluded that the police have no intention of charging these women for the
offences they claim to be arresting them for, rather the police are looking for an avenue to exploit
them.
When arrested for allegedly having committed the above offences, FWID/FWUD are often
coerced into bribing the policemen in order to be released and not be charged. This payment can
either be in the form of money or sexual acts. The demand of sexual acts in return for their
freedom not only amounts to rape which is an offence in and of itself but is also a gross violation
of several human rights such as the right to freedom from torture22 and freedom from cruel,
inhuman or degrading treatment23. It also puts both the police officer and the women at risk for
contracting sexual transmitted diseases.
In addition to the above exploitation, FWID/FWUD also run a higher risk of being violated while
in police custody than their male counterparts. FWID/FWUD are often the victims of Assault
(generally) and Sexual Assault (in particular) while they are in police custody.
Finally, FWID/FWUD are the most affected by violence among PWIDs. Unfortunately, they are
unable to seek help and, where necessary press charges, because they will not be taken seriously
by either their community or the police. They therefore continue to suffer in silence.
CONCLUSION.
PWID are, as a whole, a marginalised group in Kenya. However, FWID/FWUD are more
marginalised than male PWIDs. They suffer more stigma than the men and are at higher risk for
exploitation and violence. They are also, because of the foregoing, at higher risk of contracting
diseases such as HIV, tuberculosis and hepatitis. It is therefore essential that the police are
sensitised to their particular situation to enable them properly serve this KP.

20
Section 182 of the Penal Code provides that “every common prostitute behaving in a disorderly or indecent
manner in any public place” is deemed to be idle and disorderly and guilty of an offence.
21
Section 5 (1) (b) of the Narcotic Drugs and Psychotropic Substances (Control) Act
22
Section 29(d) of the Constitution
23
Article 28 (f) of the Constitution
37

MODULE 2B.

LEGAL CONTEXT: HEALTH AS A DEVOLVED
FUNCTION.
M ODULE 2 B .
O V E R V I E W O F HIV & PWID IN KENYA’S LEGAL CONTEXT: HEALTH
AS A DEVOLVED FUNCTION.
The module is designed to contextualise the operational environment that currently prevails
under the devolved system of government. This Module is intended:
§ To clarify the lines of operation of different national and county government institutions in
the health sector;
§ To clarify the inter-relations of the different agencies;
The purpose of this Module is to:

§ Provide broad information on the nature health-care as a state function that has been
devolved in Kenya by the Constitution, 2010.
§ Outline the governance system, managing the health sector in Kenya, as provided by the
Constitution, 2010.
§ Outline the mandates of different actors in assisting the national and county government
institutions implementing their different responsibilities relating to the Right to Health and
PWID.
After completion of this Module, participants should be able to demonstrate that:

§ They are all sufficiently conversant with the applicable mandate of different stakeholders in
the health sector (especially those who play a role in enabling PWID access their Right to
Health).
§ They are able to understand the role that the Judicial Officers could play in assisting the
PWID navigate the intricacies of the interplay between national and county governments on
the matter of health and health-care.
MODULE CONTENT
KENYA’S DEVOLVED SYSTEM OF GOVERNANCE.
Kenya’s devolution is unique to Kenya and can be described as a cooperative devolved system
where the two levels are expected to work towards the mutual goal of service delivery to the
citizens.
The most significant feature that came with the Constitution of Kenya, 2010 is the creation of
the devolved system of governance. Two levels of government have been created with 1
National Government and 47 County Governments. Governments at the national and County-
levels are distinct and inter-dependent and expected to carry out their mutual operations through
consultation and cooperation (Article 6). The distinction of either level of government is defined
by the functions of governance that assigned to it. The Fourth Schedule to the constitution has
defined which functions will are to be under charge of either level of government. The national
government has generally been assigned the functions developing national policies, national
standards, providing technical support as may be required by counties and the provision of
MODULE 2B.
specialized services like education, national referral services in health and taking charge of
national security. The County governments have been assigned basic service delivery functions
in most sectors including agriculture, health, water and infrastructural service delivery in
counties.
GOVERNMENT STRUCTURES UNDER DEVOLUTION.
THE NATIONAL GOVERNMENT.
The national government institutions include Parliament (the National Assembly and the Senate),
the National Executive (the President, Deputy President, The Cabinet and the National
Government Public Service which includes the Ministries, the Police Service, the Prison Service
and the national executive quasi autonomous institutions like the Parastatals), the Judiciary and
the Independent Institutions which include Independent Constitutional Commissions and Offices
provided under Chapter 15 of the Constitution.
The National government is constitutionally obligated to decentralize its services to make them
accessible to all people in all counties. National government therefore has the mandate to
develop the national health policies, set national standards on health and provide technical
support to county governments to guide health service delivery. The national government is also
in charge of developing and delivering national referral services in regard to the health function.
THE COUNTY GOVERNMENTS.
The County Government structures are mainly 2; the County Executive which comprises the
Governor, the Deputy Governor, the County Executive Committee and their agencies (like county
quasi autonomous institutions/parastatals) and the County Assembly which is in charge of
developing county legislation on county functions. The County Public Service Board is an
independent body that has the human resource mandate over County staff. County Governments
have the responsibility to manage county health facilities and Pharmacies, Ambulance services,
promotion of primary health care, licensing of food outlets, veterinary services, cemeteries,
funeral parlours and crematoria, refuse removal, refuse dumps and solid waste, HIV, TB and
malaria services among others (see the Fourth Schedule and the Transitional Authority Gazette
Notice of August 2013 on functional assignment). County governments to further devolve its
services to reach all in sub-counties, wards, villages and any further levels as they may deem fit.
The assignment of functions under the Fourth Schedule has also contemplated situations where
a function or power has been conferred on more than one level of government making it with
concurrent jurisdiction of each of the two levels of government. Some of these include the
functions that administratively come with other functions including, for instance, matters of
hiring of staff, research on the issues at either level of government.
40

MODULE 2B.
INTER-GOVERNMENTAL RELATIONS.
The Cooperative model of devolution in Kenya requires that the governments at the two levels
operate in a manner that ensures consultations across the two levels and among the different
county governments for effective and efficient service delivery. This is done through the
intergovernmental mechanisms provided under the Intergovernmental Relations Act, 2012, the
National and County governments are expected to consult and cooperate for better service
delivery of health services. The national Government in a participatory manner is expected to
make laws and policies that address the needs of all Kenyans. The County governments on the
other hand is expected to come up with county service delivery frameworks and programmes that
address the county specific needs while also ensuring that these also align to the national goals
and objectives as provided in the national policies and laws. They must also supervise the service
delivery process to ensure that it aligns with the standards set by the national government.
Consultations and cooperation is expected to take place through Intergovernmental structures to

that have been established and are currently guiding operations. The intergovernmental structures
in Kenya are provided in the table below:
STRUCTURE DESCRIPTION
The Summit. The President and the 47 Governors
§ This is the Apex Inter-governmental forum for the
national and county governments that gives policy
direction on matters relating to matters of mutual
interest.
The Council of Governors. 47 Governors
§ This is an inter-governmental forum that brings the
47 counties together
The intergovernmental This is an independent intergovernmental statutory body
Technical Committee. established to provide services to the summit
The Council of Governors This is an intergovernmental statutory body established
Secretariat. to provide services to the summit
TABLE 2: THE INTERGOVERNMENTAL STRUCTURES IN KENYA.
41

MODULE 2B.
SUMMARY.
FIGURE 1; DEVOLVED GOVERNANCE STRUCTURE.

THE GOVERNMENT STRUCTURES FOR IMPLEMENTING MATTERS AFFECTING PWID.
Under the devolved governance system, different actors at the national and county level have
responsibilities that impact on PWID.
At the National Government level, we have the Parliament which makes laws including the
health laws (Including public health, HIV, Human Rights laws, criminal justice laws and
procedures) that impact the lives of PWID. We also have the Executive that makes national
policies and implements different programmes that affect the PWID. The national Executive
departments and entities with mandates that affect PWID include The Ministry of Health and its
agencies including the National AIDS Control Council (NACC) and the NASCOP, the Office of
the President’s Department of Internal Security and relevant agencies including the Police and
National Authority Campaign Against Alcohol Drug Abuse (NACADA). The Judiciary is the
third arm of government which is independent and it also has a key role in the justice system
through which PWID are often processed. There are three Human Rights commissions
established under Article 59 of the Constitution and two of these, the Kenya National
Commission on Human Rights (KNCHR) and the National Gender and Equality Commission
(NGEC) are relevant in addressing Human Rights matters affecting PWID.
42

MODULE 2B.
The County Assemblies have the responsibility of making County laws and can make or repeal
any county laws including former by-laws that may affect PWID. The County Executives have
the mandate of delivering county health services and are therefore charged with the
responsibility of implementing the public health and HIV programmes including those affecting
PWID.
REFERENCES.
§ The Constitution of Kenya, 2010- Article 6, (Chapter 11, Fourth Schedule).
§ The County Government Act, 2012.
§ The Transition to Devolved Government Act, 2012: (Act No 1 of 2012).
o Subsidiary Legislation under the Act
o The Transferred Functions, 2013 (L.N. 16/2013), Regulation 2 of this Subsidiary
Legislation.
o The Transfer of Functions, 2013 (L.N. 137-183/2013), Regulation 2 of this
Subsidiary Legislation
§ The Intergovernmental Relations Act, 2012: Act No 2 of 2012.
§ The County Government Act, 2012: Act No 17 of 2012.
§ The Kenya Gazette Notice No. 116 of 8th August, 2013.
43

MODULE 2C.

LEGAL CONTEXT: THE LEGISLATIVE AND
POLICY FRAMEWORK RELATING TO DRUG
USE.
M ODULE 2 C .
O V E R V I E W O F HIV & PWID I N K E N Y A ’ S L E G A L C O N T E X T : T H E
L E G IS L A T IV E A N D P O L IC Y F R A M E W O R K R E L A T IN G T O D R U G U S E .
The purpose of this Module is to discuss the Kenyan laws and policies that impact on the welfare
of PWID. It is a summary review of the policies on drug use and control and those on health;
their compatibility with each other and their impact on the health planning for the management
of public health concerns relating to PWID.
LEARNING OBJECTIVE
At the completion of this Module, participants should have:

§ An Increased knowledge and understanding about the current laws and policies relating to
drugs, drug use and drug control.
§ An ability to engage in consensus-building on ways of applying relevant policies -with the
necessary alterations- for compliance with constitutional provisions on the Right to Health.
§ Broadened their perspectives to embrace the value of revising and/or adopting, -as necessary-
the Policy and Legislative Reforms to allow Judicial Officers to embrace the Health-and-
Human-Rights perspectives of their mandate when handling of PWID.
The health and Human Rights Interventions for PWID mainly focus on:
§ Working with individual Injecting Drug Users (IDU); and
§ Creating a Policy and Legal Environment that can enable the possibility and realization of
Harm Reduction as an intervention.
MODULE CONTENT
LAWS RELATING TO DRUG USE AND CONTROL.
NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES (CONTROL) ACT
The Narcotic Drugs and Psychotropic Substances (Control) Act is the law that directly
addresses matters related to drug use; it prohibits, among others, the:
(a) Possession of such drugs for personal use, which upon conviction, attracts an imprisonment
sentence of not more than 20 years24;
(b) Possession of such drugs for other purposes, which upon conviction, attracts a fine of at
least KES 1,000,000 or three times the value of the drugs and/or imprisonment for life25;
(c) Trafficking of such drugs, which, upon conviction, attracts the same penalty as
possession26; and
(d) The use of such drugs which attracts a fine of KES 250,000 and/or imprisonment for at
least 10 years upon conviction27.

24
Section 3(2)(b) of the Narcotic Drugs and Psychotropic Substances (Control) Act.
25
Section 3(2)(b) of the Narcotic Drugs and Psychotropic Substances (Control) Act.
26
Section 4(b) of the Narcotic Drugs and Psychotropic Substances (Control) Act.
27
Section 5(1) of the Narcotic Drugs and Psychotropic Substances (Control) Act.
MODULE 2C.
All these offences are cognisable offences because of the penalties they attract28. Therefore,
PWID can be arrested without a warrant29 when found either in possession of the drugs or found
using them. Furthermore, the Police have a duty to prevent cognizable offences30 and as such
Police are empowered to arrest PWID in order to prevent them from committing any of the
above listed offences. As we shall see, this practice of treating PWID more harshly is not only a
contravention of the Constitution but also a breach of the duty owed by the Police and the courts.
The combination of the provisions of this above-mentioned Acts (which do not seem to factor in
the psychological and health aspects of intravenous drug use) as well as the social stigma that is
attached to drug use, PWID are characterised as criminals in Kenya. Consequently, they are
seldom accorded the Dignity and Rights that other suspects and accused persons are accorded.
The Act also provides for the creation of rehabilitation centres (Section 52) which are, in part,
funded by property forfeited to the government under the Act. The Act provides that all the
property of persons convicted of an offense created by the Act shall be forfeited to the
government (Section 36).
The Act also provides courts with the necessary discretion to divert drug users from custody
(Section 58). The court can order that a person spends part of their imprisonment term in a
rehabilitation centre where the court finds that the person:
a) ‘A’ is addicted to drugs; and
b) Only had the drugs in his possession for personal use
Also, where the centre reports that the person has been rehabilitated and is no longer an addict,
the court may do away with the remainder of the person's sentence.
THE SEXUAL OFFENCES ACT:
The Act provides under Section 35 that where a person who is found guilty of an offence under
the Act is also found to be a drug addict, the court may order that, in addition to their sentence,
they also undergo mandatory treatment or counselling depending on the circumstances. The cost
of this treatment is supposed to be born borne by the State. This section clearly alludes to the
possibility of the establishment of harm reduction centres by the State
THE EAST AFRICAN COMMUNITY HIV AND AIDS PREVENTION AND MANAGEMENT ACT.
The Act provides (Section 12(d)) that governments have a duty to ensure that drug users have
access to harm reduction programmes. It also requires (Section 39) governments to develop
strategies, policies and programmes to promote the health of vulnerable or high risk groups.

28
First Schedule, Criminal Procedure Code.
29
Section 29 (a) of the Criminal Procedure Code.
30
Section 62 of the Criminal Procedure Code.
46

MODULE 2C.
The HIV and AIDS Prevention Control Act (the Kenyan Act) does not have these provisions.
Although, this could be attributed to the fact that the Kenyan Act was passed in 2006, whilst the
EAC Act was passed in 2012.
This act seems to provide more on the duty owed by the executive generally to PWID rather than
the duty owed by the Police.
THE NATIONAL AUTHORITY FOR THE CAMPAIGN AGAINST ALCOHOL AND DRUG ABUSE ACT:
While the NDPS Act (Section 73) requires police to have a warrant before they can search
premises where they have reasonable grounds to believe the NDPS Act is being contravened, the
NACADA Act (Section 20) allows police to enter and search premises without a warrant where
they suspect the NDPS Act or any other drug-related law is being contravened and provided it is
at a reasonable hour. Section 3 of the Act provides that the NACADA Act shall prevail where
there is an inconsistency between it and any other written law. This means it supersedes the
NDPS Act when it comes to providing for searches of premises.
Allowing for searches of premises without a warrant removes the control measure that protects
PWID right to privacy in Article 31 of the constitution. The criteria given of "believing on
reasonable grounds that the NDPS Act or any other drug-related act is being contravened" and
ensuring the search is conducted at a "reasonable hour" are too open to abuse when applied on
their own.
POLICIES RELATING TO DRUG USE AND CONTROL.
The national policies relating to drug use and PWID are situated in three categories including the
alcohol and drug use control where the national authority for the campaign against alcohol and
drug abuse has been established and influences policies on this subject; the law enforcement
sector where drug use and possession are part of the crimes within our laws and the public health
sector where the HIV policies have included guidelines on prevention and treatment and care of
HIV among PWIDs. Some of the policies/guidelines developed by the Ministry of health
include:
The Standard Operating Procedures defining the standard package of Harm Reduction Services
for PWID including Medically-Assisted Therapy (MAT) with Methadone developed by The
National AIDS and STI Control Program (NASCOP).
§ The Kenya MoH, NACC HIV Prevention Revolution Road Map (2014) which lays out a
National Strategy until 2030.
§ The National Guidelines for Drug Use.
§ The National Guidelines for Key Populations in Kenya amongst others
§ The National HIV Strategic Plan and Standard Operating Procedures for 2009-2013
recognised the need to have programmes that target KP including PWIDs.
47

MODULE 2C.
THE NATIONAL PROTOCOL FOR TREATMENT OF SUBSTANCE USE DISORDERS IN KENYA, 2017
BY MINISTRY OF HEALTH, KENYA.
This protocol was developed by the Mental health & substance abuse management unit. It is
intended to provide “a humane and scientific approach” to the delivery by skilled practitioners of
assistance to alcohol or drug dependent persons to facilitate their attainment of “the highest level
of personal, professional, familial and social functioning”. The protocol has integrated the
Human Rights approach to service delivery and guides the practitioners to ensure that PWID are
treated with respect to their rights including the rights to access health services, right to dignity,
the right to confidentiality among others.
Key Challenges
q Limited political will, involvement and engagement.
q High social stigma.
q Contradiction between the existing laws and health policies.
q Lack of full implementation of existing policies.
q Persons charged with implementing legislation are given little resources
q Stakeholders are not involved in policy formulation or when they are involved their inputs
are largely not taken into consideration.
48

MODULE 3.
OCCUPATIONAL HEALTH AND SAFETY: HIV

AND HEPATITIS.
M ODULE 3.
OVERVIEW OF OCCUPATIONAL HEALTH AND S A F E T Y : HIV AND
H E P A T IT IS .
The purpose of this module is to develop the participants’ understanding of HIV transmission
methods and how they can protect themselves from HIV infection whilst at work and in their
personal lives. The participants will be taught about the risk of HIV infection from a range of
unsafe behaviours. Importantly, this module provides information about tools they can use to
protect themselves at work, for example gloves and safety glasses, highlighting as well that they
too can access harm reduction services for injecting drug use or condom provision.
After completion of this Module, participants should be able to demonstrate that they have
increased their knowledge and understanding:
§ Of infection control procedures;
§ Of HIV, hepatitis, and tuberculosis as occupational hazards for members of Judicial services;
§ That all the Judicial Officers can make well informed decisions to protect themselves from
HIV;
§ That if they are infected or affected by HIV, the Judicial Officers know how to access
prevention, treatment, care and support services;
§ Of the potential Mental Health Issues that could arise from repeated exposure to
traumatic and nerve-wracking situations that could result in the development of adverse
stress-based conditions.
Information concerning HIV prevalence among the Judicial Officers and its impact on them is
often not readily available, mainly because of the lack of systematic testing and recording of HIV
data by Judicial agencies. The majority of research looking into the direct effect of HIV/AIDS on
Judicial personnel. Where there are numbers, these are often difficult to access because of
concerns about the reaction to HIV/AIDS within and outside the Judicial institutions and
agencies. Research that has been done on the relationship between HIV/AIDS and the Judicial
Officers indicates that:
§ The Judicial Officers are as vulnerable to HIV and viral hepatitis as the civilian population;
there is some additional risk of occupational infection related to exposure to blood and other
body fluids.
§ The Law Enforcement Officers working in detention facilities are at risk of airborne
infections such as TB.
§ Patterns of vulnerability are dependent on a number of variables including cadre, deployment
patterns, culture and age.
§ The stigma associated with HIV and AIDS has given rise to a lack of openness on the issue
and this appears to have been the greatest barrier in getting governments and the Judicial
Officers sufficient forces to acknowledge and deal with HIV and its effects.
M O D U L E 3.
At a personal level, the Judicial Officers are at risk for HIV and viral hepatitis if they do not
practice safe sex, if they inject drugs with unsterile injecting equipment or if they receive blood
or organs that are infected. Access to Voluntary Confidential Counselling and Testing (VCCT)
can ensure that staff are aware of their status and can begin ART if necessary. The best
prevention approach to sexual transmission of HIV for the Judicial Officers is the provision of
accurate information, raising awareness, increasing availability of condoms and lubricant, and
education to ensure that the Judicial Officers know how to properly use condoms.
In the workplace, risk is relatively low, but with increased HIV prevalence among key
populations with whom the Judicial Officers often interact there is some risk of infection.
The risk depends on the type of work undertaken and the location of the work, yet occupational
health risks can be greatly reduced by simple low cost measures and procedures such as
Universal Precautions 31. Post-exposure prophylaxis (PEP) should be readily available to deal
with possible infection due to needle-stick injury or contamination with infected body fluid (such
as blood entering a wound or splashing into the eyes). PEP should also be made available
regardless of occupational or non-occupational exposure to HIV. The prescription of PEP should
be guided by medical professionals and based on reported type and risk of exposure. The
Judicial Officers also need to be able to facilitate access to medical prescribers of PEP for the
victim of crime such as rape, when the victim may have been exposed to HIV through the crime
committed against her/him.
While occupational risk is low, it has been found that using the issue of occupational exposure to
the HIV virus is a potential entry point for researchers and organizations wishing to work with
the Judicial Officers. Senior Judicial Officers need to ensure that standard operating protocols
(SOPs) are developed to support occupational health and safety for reducing the risk of HIV to
the Judicial Officers. The SOPs need to also include the provision of and access to the
information about PEP.
RISK OF HIV TRANSMISSION.
Risk of HIV transmission through needle stick injury is actually quite low and important to
remind Judicial Officers of this.
Risk of HIV transmission through sexual transmission is also quite low but correct and consistent
use of condom is essential for Judicial Officers engaging in risky sexual activities. Therefore,
condoms should be readily available
Risk of HIV transmission from oral sex is very low as well.
OTHER WORKPLACE RISK.
Risks to Judicial Officers attending accidents. Risks to Judicial Officers attending bloody crime
scenes.

31
World Health Organisation. Aide Memoire. For a strategy to protect health care workers from infection with
blood-borne viruses. http://www.who.int/injection_safety/toolbox/docs/AM_HCW_Safety.pdf.
51

M O D U L E 3.
HEPATITIS B (HBV).
These series of slides discusses HBV which is a viral infection that attacks the liver. It is
commonly spread through the use of contaminated needles and syringes. Therefore, HBV can be
transmitted in a needle-stick injury. The risk of transmission can be reduced by 95% by
administering a vaccine. This vaccine should be available through every Judicial institution.
POST-EXPOSURE PROPHYLAXIS (PEP).
If you think you have been exposed to HIV through a needle-stick injury (assuming that every
needle-stick injury is a potential risk factor for acquiring HIV) or through unsafe sexual
practices, you need to be seen by a Medical Professional as soon as possible to be assessed for
PEP. Post-exposure prophylaxis is an antiretroviral therapy that is started immediately after
someone is exposed to HIV. The aim is to allow a person’s immune system a chance to provide
protection against the virus and to prevent HIV from becoming established in someone’s body. It
usually consists of a month long course of 2 or 3 different types of the antiretroviral drugs. In
order for PEP to have a chance of working, the medication needs to be taken as soon as possible,
and within 72 hours of exposure to HIV. Guidelines for accessing PEP should be stated in
Judicial institutional SOPs.
WORK-PLACE HIV SAFETY.
Items to use for protection from HIV when working in the field include the use of gloves when
conducting searches and eye masks when confronted by people who may be affected by
substances in a closed setting.
PERSONAL HIV RISK REDUCTION
Items to use for self-protection from HIV – sterile needles and condoms.
SAFE DISPOSAL.
Safe disposal of needles/syringes requires the presence of or access to Sharps-Disposable

Containers which should be easily available. Instructors should ensure that Sharps-Disposable
Containers are used in the demonstration of safe disposal of needles, syringes and other injecting
equipment.
A NATIONAL JUDICIAL POLICY FOR OCCUPATIONAL HIV RISK REDUCTION.
A national law enforcement policy for occupational HIV risk reduction needs to be developed
and taught to all Judicial Officers. The development of SOPs for guiding how Judicial Officers
can reduce their risk is critical. It should promote and ensure access to condoms, PEP, voluntary
counselling and testing and ART for all Judicial Officers and their families in a workplace
culture that is free of discrimination and stigma.
52

M O D U L E 3.
REFERENCE:
Refer to the Annex Section of this manual for the Annex titled “Guidelines for Searching a Person”
and “Guidelines for Handling and Disposal of Needles and Syringes”. The Instructor may opt to use
these Guidelines to assess the participants’ practical knowledge on how to conduct oneself in
those particular situations.
53

MODULE 4A.
OVERVIEW OF THE ROLE OF JUDICIAL

OFFICERS.
M ODULE 4 A .
OVERVIEW OF THE ROLE OF J U D I C I A L O F F IC E R S .
The purpose of this Module is to ensure the participants develop a comprehensive understanding
of the mandates of the Judicial Officers with respect to the constitutional and legal entitlements
and obligations reposed in and exercised by the Judicial Officers. In developing this
comprehensive understanding, the Judicial Officers should be able to embrace their mandates as
pertains to the implementation of human rights, as they deal with PWID.
It describes the mandates of the Judicial Officers as provided in the constitution and the
applicable laws. It further emphasises their mandates in regard to human rights, with particular
emphasis upon PWID.
LEARNING OBJECTIVE
At completion of this Module, participants should have a greater appreciation of the following
topics:
§ The constitutional responsibilities of the Judicial Officers in facilitating the common
citizen’s enjoyment their Human Rights and Fundamental Freedoms.
§ Their vital role in developing innovative approaches to broaden the expression of those
Human Rights and Fundamental Freedoms, and enable their implementation.
§ Their leadership role in assisting the wider public sector, (and the Public Health Sector in
particular) embrace a Human-Rights-led, alternative approaches to addressing the problem
experienced by PWID.
MODULE CONTENT.
THE ROLE OF THE JUDICIARY
The role of the Judiciary is provided in Article 159 of the Constitution which vests Judicial
authority in the courts and tribunals. The judiciary is an independent arm of government with
hierarchical structures including the Supreme Court as the highest court of the land, the Court of
Appeal, the High Court, the Magistrates Courts, the Kadhi’s Courts and Tribunals established in
line with the constitution. The courts are also mandated to apply the principles of facilitating
access to justice through alternative justice system.
The primary mandate of the Judiciary is to dispense Justice to All irrespective of status and to
protect and promote the purpose and principles of the Constitution. The constitution specifically
requires that “in exercising judicial authority, the courts and tribunals be guided by the
following principles—
(a) Justice shall be done to all, irrespective of status;
(b) Justice shall not be delayed;
(c) Alternative forms of dispute resolution including Reconciliation, Mediation,
Arbitration and Traditional Dispute Resolution Mechanisms shall be promoted, so
long as they do not violate the Bill of Rights;
MODULE 4A.
The constitution has further provides express mandates to the courts on matters relating to human
rights. The courts, in determining whether a human right or fundamental freedom in the Bill of
Rights has been denied, violated, infringed or threatened32, are required to “develop the law to
the extent that it does not give effect to a right or fundamental freedom” by “adopting the
interpretation that most favours the enforcement of a right or fundamental freedom”33. As an
example, if PWID have equal rights to access health services, the courts in interpreting cases
involving PWID should ensure that the decisions they make facilitate rather than obstruct or
deny the rights of PWID to access health services. The Courts, like all other organs and
institutions of the State including the Police, are also expected to apply the values and principles
of the constitution on Article 10 as they interpret any law34.
JUDICIARY BAIL AND BOND POLICY GUIDELINES.
DEFINITIONS35.
BAIL.
“An agreement between an accused person or his/her sureties and the court that the accused
person will attend court when required, and that should the accused person abscond, in addition
to the court issuing warrants of arrest, a sum of money or property directed by the court to be
deposited, will be forfeited to the court”.
BOND.
“An undertaking, with or without sureties or security, entered into by an accused person in
custody under which he or she binds him or herself to comply with the conditions of the
undertaking and if in default of such compliance to pay the amount of bail or other sum fined in
the bond”.
SECURITY.
“A sum of money pledged in exchange for the release of an arrested or accused person as a
guarantee of that person’s appearance for trial”.
SURETY.
“A person who undertakes to ensure that an accused person will appear in court and abide by
bail conditions. The surety puts up security, such as money or title to a property, which can be
forfeited to the court if the accused person fails to appear in court”.
PRE-TRIAL DETENTION.
“The confinement of arrested and accused persons in custody pending the investigation, hearing
and determination of their cases”.

32
33
34
35
Transposed almost in its entirety from: Bail and Bond Policy Guidelines for the Kenyan Judiciary produced by
the National Council on the Administration of Justice, March 2015; at p. 3.
56

MODULE 4A.
BAIL REPORT.
“A social inquiry report based on information generated about the background and community
ties of an accused person, and its purposes are to verify information provided to the court by the
accused person, to assess the likelihood that the accused person will appear for trial, and enable
the court to impose reasonable bail terms and conditions”.
PERSONAL RECOGNIZANCE.
“The release of an arrested or accused person on the undertaking of such a person that he or she
will appear in court as and when required”.
REMANDEE.
“An accused person detained in a prison pending the determination of his or her case”.
CONSTITUTIONAL AND LEGISLATIVE BASIS FOR BAIL AND BOND36.
Article 49 (1) (H) of the Constitution of Kenya gives an arrested person the Right “to be
released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are
compelling reasons not to be released.” Further, Article 49 (2) of the Constitution provides that
“a person shall not be remanded in custody for an offence if the offence is punishable by a fine
only or by imprisonment for not more than 6 months”.
The Criminal Procedure Code (CPC) empowers an officer in charge of a police station or a
court to admit a person accused of an offence to
§ Bail -on executing a bond with sureties for his or her appearance37, or
§ Release -on executing a bond with sureties for his or her appearance.
• Where the offence is not than Murder, Treason, Robbery with Violence, Attempted
Robbery with Violence and any related offence –
§ Alternatively, such a Police Officer or the Judicial Officer in Court may, instead of taking
bail from the accused person, release him or her upon executing a bond without sureties38.
Further, the CPC provides that “The amount of bail shall be fined with due regard to the
circumstances of the case, and shall not be excessive”39. The CPC also gives the High Court the
power to “direct that an accused person be admitted to bail or that bail required by a
Subordinate Court or police officer be reduced”40. Finally, the CPC provides that “before a
person is released on bail or on his own recognizance, a bond for such sum as the court or
police officer thinks sufficient shall be executed by that person, and by one or more sufficient
sureties”41.

36
37
Criminal Procedure Code, Chapter 75, Laws of Kenya, Section 123(1).
38
39
40
41
Criminal Procedure Code, Chapter 75, Laws of Kenya, Section 124.
57

MODULE 4A.
GENERAL PRINCIPLES ON BAIL AND BOND42.
The process of Bail and Bond Decision-Making shall be guided by the following principles,
1. The right of accused person to be presumed innocent43.
2. Accused Person’s Right to Liberty.
3. Accused’s obligation to attend trial.
4. Right to Reasonable Bail and Bond Terms:
5. Bail determination must balance the rights of the accused persons and the interest of justice.
6. Consideration for the rights of victims.
BAIL AND BOND DECISION-MAKING44.
BAIL AND BOND IN THE POLICE STATION.
At the Police station, a Suspect may be released on:

§ Cash Bail -With or Without Sureties, or
§ Personal (Free) Bond or recognizance.
As a general rule, the Police Force Standing Orders45 require the Officer-in-Charge of a Police
Station to release any person arrested on a minor charge on the security of Cash Bail. Unless the
officer has good grounds for believing that the arrested person will not attend court when
required to do so46.
This cash bail should be handed into Court by the date on which the arrested person should
appear in Court, and a Receipt obtained47.
BAIL AND BOND IN THE COURTS48.
The Judicial Officer as the presiding Court Official has the power under the Constitution and the
CPC to admit an Accused Person to bail or to release him or her upon:
§ Executing a Bond with Sureties for his or her appearance.
The exercise of these powers entails the performance of the following judicial and administrative
functions:
1. Determining whether or not an accused person should be granted bail;
2. Determining the amount of bail;

42
43
Article 50(2) of the Constitution.
44
45
At the time of publication of these Policy Guidelines, the Police Service Standing Orders were awaiting
Parliamentary Approval to replace the Police Forces Standing Orders.
46
Police Forces Standing Orders, Order 9 (i).
47
Police Forces Standing Orders, Order 9(ii).
48
58

MODULE 4A.
3. Attaching suitable conditions to the grant of bail;

4. Verifying security documents;
5. Approving sureties;
6. Releasing accused persons who have been granted bail from Police Custody or
Prisons;
7. Committing accused persons who have been denied bail to Police Custody or
Prisons; and
8. Reviewing bail terms and conditions.
In practice, the Judicial Officer as the presiding Court Official makes this evaluation by
considering the following non-exhaustive factors:
1. The nature of the charge or offence and the seriousness of the punishment to be
meted if the accused person is found guilty.
2. The strength of the prosecution case.
3. Character and antecedents of the accused person.
4. The failure of the accused person to observe bail or bond terms.
5. Likelihood of interfering with witnesses.
6. The need to protect the victim or victims of the crime.
7. The relationship between the accused person and potential witnesses.
8. Child offenders.
9. The accused person is a flight risk.
10. Whether accused person is gainfully employed.
11. Public order, peace or security.
12. Protection of the accused person.
JUDICIARY SENTENCING POLICY GUIDELINES
PRINCIPLES UNDERPINNING THE SENTENCING PROCESS49.
PROPORTIONALITY:
The sentence meted out must be proportionate to the offending behaviour. The punishment must
not be more or less than is merited in view of the gravity of the offence. Proportionality of the
sentence to the offending behaviour is weighted in view of:
§ The Actual Impact of the Offence,
§ The Foreseeable Impact of the Offence,
§ The Intended Impact of the Offence, and
§ The Responsibility of the Offender50.

49
Transposed almost in its entirety from: Sentencing Policy Guidelines for the Kenyan Judiciary produced by the
Judicial Taskforce on Sentencing under chairmanship of Mr. Justice Mbogholi Msagha, during the tenure of
Chief Justice, Hon. Willy Mutunga; at pp.12-13.
50
The principle of proportionality is grounded within the concept of just deserts and is embraced by common law. In
Hoare v The Queen (1989) 167 CLR 348, it was stated that “a basic principle in sentencing law is that a
sentence of imprisonment imposed by the court should never exceed that which can be justified as appropriate or
proportionate to the gravity of the crime considered in light of its objective circumstances.” The United Nations
Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules) recognise the principle
of proportionality but emphasise that in respect to juveniles, the response should not only take into account the
gravity of the offence but also the personal circumstance of the juvenile. Article 50 (1) of the Constitution of
59

MODULE 4A.
EQUALITY/UNIFORMITY/PARITY/CONSISTENCY/IMPARTIALITY:
Same Sentences should be imposed for Same Offences committed by offenders in Similar
Circumstances51.
ACCOUNTABILITY/TRANSPARENCY:
The Reasons and Considerations leading to the Sentence should be clearly set out and in
accordance to the Law and the Sentencing Principles laid out in the Sentencing Policy
52
Guidelines .
INCLUSIVENESS:
Both the offender and the victim should participate in and inform the Sentencing Process53.
RESPECT FOR HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS:

The Sentences imposed must Promote and not undermine Human Rights and Fundamental
Freedoms. In particular, the Sentencing Process must uphold the Dignity of both the Offender
and the Victim54.
Further, the Sentencing Regime should contribute to the broader enjoyment of Human Rights and
Fundamental Freedoms in Kenya. Sentencing impacts on Crime Control and has a direct
correlation to fostering an environment in which Human Rights and Fundamental Freedoms are
enjoyed.
The Sentencing Policy Guidelines take into account the Sentencing Trends and the Outcomes of
the various Modalities of sentencing in Kenya. In particular, they take into account the High
Rates of Recidivism that have been linked to Custodial Sentences and require the Judicial Officer
in Courts to opt for Sentences that are likely to promote Rehabilitation.
ADHERENCE TO DOMESTIC AND INTERNATIONAL LAW WITH DUE REGARD TO RECOGNISED

INTERNATIONAL AND REGIONAL STANDARDS ON SENTENCING:
Domestic Law sets out the precise Sentences to be imposed for each offence that Judicial Officer
in Courts must adhere to.
In addition, International Legal Instruments, which have the force of law under Article 2 (6) of
the Constitution of Kenya, should be applied. Reference should also be made to Recognised

Kenya 2010 upholds the Right to have a Fair Determination of a Matter. Fairness demands that the Sentence
imposed should neither be excessive nor less than is merited. See for instance Caroline Auma Majabu v.
Republic Criminal Appeal No. 65 of 2014 [2014] eKLR where a Sentence of Life Imprisonment and a Fine of
Kshs .1,000,000 for having been found in Possession of Heroin worth Kshs. 700 was found to be excessive.
51
Constitution of Kenya 2010, Article 27; Article 73 (1) (a) (iii); Article 73 (2) (b).
52
Constitution of Kenya 2010, Article 50; Article 73 (2) (d).
53
Article 10 (2) (b) of the Constitution of Kenya identifies Inclusiveness as one of the National Values and
Principles of Governance.
54
Article 21 (1) of the Constitution imposes a duty on all State organs to observe, respect, protect, fulfil and
promote the Rights and Fundamental Freedoms in the Bill of Rights. Article 10 (2) (b) Identifies Human Rights
as one of the National Values and Principles of Governance.
60

MODULE 4A.
International and Regional Standards and Principles on Sentencing, which though not binding,
provide important Guidance during Sentencing55.
OBJECTIVES OF SENTENCING56.
Sentences are imposed to meet the following Objectives:
RETRIBUTION:
To punish the offender for his/her criminal conduct in a just manner.
DETERRENCE:
To deter the offender from committing a similar offence subsequently as well as to discourage
other people from committing similar offences.
REHABILITATION:
To enable the offender reform from his criminal disposition and become a law abiding person.
RESTORATIVE JUSTICE:
To address the needs arising from the criminal conduct such as loss and damages. Criminal
conduct ordinarily occasions victims’, communities’ and offenders’ needs and justice demands
that these are met. Further, to promote a sense of responsibility through the offender’s
contribution towards meeting the victims’ needs.
COMMUNITY PROTECTION:
To protect the community by incapacitating the offender.
DENUNCIATION:
To communicate the community’s condemnation of the criminal conduct.
These Objectives are not mutually exclusive, although there are instances in which they may be
in conflict with each other. As much as possible, Sentences imposed should be geared towards
meeting the above objectives in totality
PENAL AND CORRECTIVE SANCTIONS RECOGNISED UNDER KENYAN LAW57.
The following penal sanctions are recognised in Kenya:

1. Death Penalty58.

55
See list of Recognised International and Regional Standards and Principles on Sentencing in Sentencing
Policy Guidelines for the Kenyan Judiciary produced by the Judicial Taskforce on Sentencing under chairmanship
of Mr. Justice Mbogholi Msagha, during the tenure of Chief Justice, Hon. Willy Mutunga; at pp. 13-14.
56
Chief Justice, Hon. Willy Mutunga; at pp. 12-13.
57
Chief Justice, Hon. Willy Mutunga; at p. 16.
58
Penal Code, Section 24 (a).
61

MODULE 4A.
2. Imprisonment59.
3. Community Service Orders60.
4. Probation Orders61.
5. Fines62.
6. Payment of Compensation63.
7. Forfeiture64.
8. Finding Security to Keep the Peace and be of Good Behaviour65.
9. Absolute and Conditional Discharge66.
10. Suspended Sentences67.
11. Restitution68.
12. Suspension of Certificate of Competency in Traffic offences69.
13. Police Supervision70.
14. Revocation/Forfeiture of Licences71.
15. Committal to Rehabilitation Centres72.
The Judicial Officer as the presiding Court Official can Order that part of the Custodial Sentence
is served in a Rehabilitation Centre where the Court is satisfied that:
§ The Offender is addicted to Narcotic Drugs or Psychotropic Substances, and
§ The Offender is in Possession of those substances only for his Own Consumption73.
CUSTODIAL VERSUS NON-CUSTODIAL SENTENCES74.
Where the option of a non-custodial sentence is available, a custodial sentence should be

reserved for a case in which the objectives of sentencing cannot be met through a non-custodial
sentence75.
The Judicial Officer in Court should bear in mind the High Rates of Recidivism associated with
imprisonment76 and seek to impose a sentence which is geared towards steering the offender

59
Penal Code, Section 24 (b).
60
Penal Code, Section 24 (c); Community Service Orders Act, s.3.
61
Penal Code, Section 24 (i); Probation of Offenders Act, s 4.
62
Penal Code, Section 24 (e).
63
Penal Code, Section 24 (g); Section 31.
64
Penal Code, Section 24 (f); Section 29.
65
Penal Code, Section 24 (h); Section 33; Section 43-46.
66
Penal Code, Section 35.
67
Criminal Procedure Code, Section 15.
68
69
Penal Code, Section 39.
70
Security Laws (Amendment Act), Section 343.
71
Alcoholic Drinks Control Act, Section 42; Environmental Coordination and Management Act, Section 146 (3).
72
Narcotic Drugs and Psychotropic Substances Act, Section 58 (1).
73
Narcotic Drugs and Psychotropic Substances (Control) Act, Section 58 (1).
74
Chief Justice, Hon. Willy Mutunga; at p. 16.
75
Kampala Declaration on Prison Conditions in Africa and Plan of Action, para 1; Ouagadougou Declaration
and Plan of Action on Accelerating Penal Reforms in Africa para 1.
62

MODULE 4A.
from crime. In particular, imprisonment of petty offenders should be avoided as the

Rehabilitative Objective of sentencing is rarely met when offenders serve short sentences in
custody. Further, short sentences are disruptive and contribute to re-offending.
FACTORS IN DETERMINING WHETHER TO IMPOSE A CUSTODIAL OR NON-

CUSTODIAL SENTENCE.
GRAVITY OF THE OFFENCE:
In the absence of aggravating circumstances or any other circumstance that render a non-
custodial sentence unsuitable, a sentence of imprisonment should be avoided in respect to
misdemeanours.
CRIMINAL HISTORY OF THE OFFENDER:
Taking into account the seriousness of the offence, first offenders should be considered for non-
custodial sentences in the absence of other factors impinging on the suitability of such a
sentence. Repeat offenders should be ordered to serve a non-custodial sentence only when it is
evident that it is the most suitable sentence in the circumstance.
Previous convictions should not be taken into consideration, unless they are either admitted or
proved.
CHILDREN IN CONFLICT WITH THE LAW:
Non-custodial orders should be imposed as a matter of course in the case of children in conflict
with the law except in circumstances where, in light of the seriousness of the offence coupled
with other factors, the Judicial Officer in Court is satisfied that a custodial order is the most
appropriate and would be in the child’s best interest77. Custodial orders should only be meted out
as a measure of last resort78.
CHARACTER OF THE OFFENDER:
Non-custodial sentences are best suited for offenders who are already remorseful and receptive
to rehabilitative measures.

76
See Legal Resources Foundation, Sentencing in Kenya: Practice, Trends, Perceptions and Judicial Discretion
(LRF 2011) 37.
77
Constitution of Kenya 2010, Article 53 (2); Children Act, Section 4 (2).
78
Constitution of Kenya 2010, Article 53(1) (f); Convention on the Rights of the Child, Article 37 (b); African
Charter on the Rights and Welfare of the Child, Article 4.
63

MODULE 4A.
PROTECTION OF THE COMMUNITY:
Where there is evidence that the offender is likely to pose a threat to the community; a non-
custodial sentence may not be the most appropriate. The Probation Officers’ Report should
inform the Judicial Officer in Court of such information79.
OFFENDER’S RESPONSIBILITY TO THIRD PARTIES:
Where committing an offender to a custodial sentence is likely to unduly prejudice others,

particularly vulnerable persons, who depend on him/her, a Judicial Officer in Court should
consider a non-custodial sentence if, in light of the gravity of the offence, no injustice will be
occasioned. Information on the offender’s responsibility to third parties should be substantiated.
ALTERNATIVE PLACES OF CUSTODY.
Where the Judicial Officer in Court is satisfied that an offender convicted of an offence under the
Narcotic and Psychotropic Substances (Control) Act is a drug addict, it should make an order
requiring the offender to serve a term in a rehabilitation centre.
FINES.
The law permits the imposition of fines80 and as specified in the relevant provisions, they may be
imposed in addition to or in substitution of another punishment81. However, a fine must not be
imposed in substitution where a minimum sentence of imprisonment is provided for82.
In most cases, the relevant provisions provide the amount payable in fines, but in some cases,
Judicial Officer in Courts are mandated to determine the fines payable.
SITUATIONAL ANALYSIS.
There are many instances where the fines are in effect excessive and offenders end up serving
imprisonment terms in default of payment. A major challenge is in regard to fines fixed by
statute which, in view of the circumstances of a given case, are excessive. Moreover, even where
the amount is minimal, Indigent Offenders are usually unable to pay and are imprisoned as a
result.
Whereas the law allows for the payment of fines in instalments83, this option is rarely utilised.
The reluctance to allow fines to be paid in instalments is attributed to the challenges in
enforcement.

79
United Nations Standard Minimum Rules for Non-custodial Measures (Tokyo Rules), rule 8.1.
80
Penal Code, Section 28 (1).
81
Penal Code, Section 26 (3).
82
Penal Code, Section 26 (3)(i).
83
Criminal Procedure Code, Section 336 (3).
64

MODULE 4A.
Policy Directions Preference for a Fine.
Where the option of a fine is provided, the Judicial Officer in Court must first consider it before
proceeding to impose a custodial sentence84. If, in the circumstances a fine is not a suitable
sentence, then the Judicial Officer in Court should expressly indicate so as it proceeds to impose
the available option85.
PAYMENT IN INSTALMENTS.
Where an offender is incapable of paying a fine at a go, but undertakes to pay within a given
period, the Judicial Officer in Court should make an order for payment in instalments86. The
order should specify the schedule of payments and the amount payable at each instance.
For an order for the payment of a fine in instalments to be imposed, the offender should be
required to execute a bond with or without sureties unless, in view of the individual
circumstances, it appears to the Judicial Officer in Court that the offender is unlikely to default
and/or abscond.
Where payment of a fine in instalments has been ordered by the Judicial Officer in Court, the
case shall be listed for mention on each date an instalment is due.
Default of a single instalment shall result in the whole outstanding amount being payable
immediately, leading to imprisonment in default of payment87.
DETERMINATION OF A FINE.
The fine fixed by the Judicial Officer in Court should not be excessive as to render the offender
incapable of paying thus liable to imprisonment88. In determining such a fine, the means of the
offender as well as the nature of the offence should be taken into account. Except in petty cases
and in which case the necessary information is within the Judicial Officer’s knowledge, a pre-
sentence report should be requested from the Probation Officer to provide information which
would assist the Judicial Officer in reaching a just quantum.
IMPRISONMENT IN DEFAULT OF PAYMENT OF A FINE.
The period of imprisonment in default of payment of a fine must not exceed 6 months unless
allowed by the law under which the conviction has been obtained89. The Penal Code, for
instance, allows for imprisonment for 12 months where the amount exceeds Kshs. 50,000.
Where the law does not expressly set the period of imprisonment in default of payment of a

84
Anis Mihidin v Republic HCCRA No. 98 of 2001 (Unreported).
85
See Fatuma Hassan Salo v Republic [2006] eKLR where it was stated that, “where an option of a fine is given,
the court has to give reasons as to why a fine is inappropriate”.
86
87
88
Penal Code, Section 28. See R v Mureto Munyoki 20 [KLR] 64 in which it was stated, “It is a fist principle in
inflicting fines that the capacity of the accused to pay should be considered”.
89
65

MODULE 4A.
fine90, the Judicial Officer in Court must be guided by the scale laid out in Section 28 (2) of the
Penal Code.
Where a Judicial Officer in Court imposes separate fines for individual offences, it must indicate
a separate sentence in default of payment of each fine91.
FORFEITURE.
There is no general power for a Judicial Officer in Court to order forfeiture unless it is expressly
provided for92.
Section 29 of the Penal Code empowers the court to order the forfeiture of any property that is
obtained as a benefit for compounding, concealing a felony or otherwise undermining the due
process of law as set out in Section 118 and 119 of the Penal Code.
In the event that the property cannot be forfeited or found, the court is to assess the value of the
property and the payment is to be effected in the same terms as a fine. The Judicial Officer in
Court may be mandates by legislated to order for the forfeiture of any property that has been
used for, or in connection with, or has been received as a reward for the commission of an
offence under the Act93.
SITUATIONAL ANALYSIS.
An order of forfeiture complements the other forms of punishment. The offender is deterred from
benefiting from his/her criminality. Forfeiture, could serve as a strong general deterrent as well.
Orders of forfeiture would also raise revenue which should be used to enhance the response to
crime. The Judicial Officer in Court may order the forfeiture of vehicles, tools or implements
used in the commission of an offence.
POLICY DIRECTIONS.
Where the Judicial Officer in Court is satisfied of the link between property and the offence
committed as set out in the different provisions, and where the Judicial Officer in Court is
mandated by the law, it should, in addition to the general punishment meted out to the offender,
order for forfeiture of the property.

90
For instance Section 121 (1) of the Penal Code stipulates the period of imprisonment in default of payment of a
fine.
91
See Wakitata v Republic Vol. 1 (E & L) 52.
92
Munyo Muu v Republic [1957] EA 89.
93
Others include Anti-Narcotics and Psychotropic Substances Act, Section 20.
66

MODULE 4B.
OVERVIEW OF THE ROLE OF JUDICIAL

OFFICERS IN PUBLIC HEALTH AND THE
IMPORTANCE OF WORKING WITH KEY
POPULATIONS.
M ODULE 4 B .
O V E R V I E W O F T H E R O L E O F J U D I C I A L O F F IC E R S I N P U B L I C H E A L T H
A N D T H E I M P O R T A N C E O F W O R K IN G W I T H K E Y P O P U L A T IO N S .
Having reviewed the relevant literature on global and national HIV/AIDS epidemic and response
and how to decrease the occupational risk of HIV, this Module begins to explore the notion of
significant role of the Judicial Officers as frontline partners in public health. The purpose of this
Module is to orientate the Judicial Officers to their role as public health actors. The Module then
uses this fact to frame how important the role of the Judicial Officers is with key affected
populations including people who inject drugs. The Module then examines in more details the
role of the Judicial Officers in HIV prevention, treatment and care among people who inject
drugs and other key populations.
At completion of this Module, participants should have a greater appreciation of the following
topics:
§ The historical role of the Judicial Officers in supporting Public Health Policies and
Practices.
§ In particular, the role of the Judicial Officers in Public Health extends to Key Affected
Populations, especially PWID and prisoners.
§ A growing understanding of how exactly the role of the Judicial Officers impacts HIV
Prevention, Treatment, Care and Support.
The Judicial Officers usually sit in judgment over people who may also have issues with alcohol
or other drugs. In addition, the Judicial Officers’ work intersects with people or behaviours that
are often criminalised, discriminated against or considered illegal such as drug use and sex work.
Balancing out their role in the enforcement of the law as well as protecting the rights and health
of individuals and the community can provide constant challenge. In the context of preventing
HIV among Key Affected Populations, the Judicial Officers need to be able to find the
appropriate balance between public health and law enforcement. This often calls for the use of
discretion as well as a developed understanding of how their role can negatively or positively
impact on Key Affected Populations.
There is a need to work with the Judicial Officers at the Judicial Institute and at the Court or
Tribunal level to ensure that they are aware of their important role in public health generally and
in HIV more specifically. The Judicial Officers, like all professionals, should be aware of the
health and welfare implications of their actions and take a responsibility for these. Despite the
vital role of the Judicial Officers in public health, the Judicial Services have often not been
sufficiently integrated into national plans and policies for HIV/AIDS prevention, treatment, care
and support. Judicial institutions can and should play a role in shaping national policies on issues
in which they play a central role. In order for this role to be an effective one, partnerships
between the Judicial Officers, the uniformed services, health services and community
representatives are required. Inspiring the Judicial Officers to actively embrace their role as
MODULE 4B.
public health actors will result not only in better community health for diverse and vulnerable
populations, but also result in better Judicial outcomes such as crime reduction.
69

MODULE 5.
RISK AND VULNERABILITY: POLICING KEY

POPULATIONS AND PROTECTING HUMAN
RIGHTS.
M ODULE 5.
O V E R V I E W O F T H E R I S K A N D V U L N E R A B I L I T Y : P O L IC IN G K E Y
P O P U L A T IO N S A N D P R O T E C T I N G H U M A N R IG H T S .
Building on from the topics covered in previous Modules, the purpose of this Module is to give
the Judicial Officers a deeper understanding of the notion of risk and vulnerability of various
population groups. The module explains the Concept of Key Populations and why certain
populations of people are more “at-risk” or vulnerable to HIV infection.
It is designed to also begin to ask the Judicial Officers to examine the impact of stigma and
discrimination on KP. By highlighting the various characteristics of Human Rights-based
Judicial models, this module then highlights specific actions that Judicial Officers that may be
considered to violate Human Rights, increase stigma and discrimination and have negative
impacts for a national HIV response.
The secondary purpose of this Module is to encourage the Judicial Officers to envisage how a
change in their attitudes and operational practice could have widespread positive implications for
KP and community safety more broadly.
The Module then focuses on the benefits of working proactively with diverse groups and
overcoming the challenges faced by the Judicial Officers in terms of building trust and creating
sustainable partnerships.
LEARNING OBJECTIVES
At the end of this module, participants should have been able to:
§ Increase their knowledge and understanding of Concept of Risk and Vulnerability for HIV
Infection;
§ Increase their knowledge and understanding of people most at Risk for, and/or Vulnerable to,
HIV Infection;
§ Understand the fundamental Concepts of Human Rights-Based Judicial Models;
§ Articulate approaches to their work that can help the Judicial Officers reduce the Risk and
Vulnerability of certain KP;
§ Identify and engage KP in HIV Programmes.
The Judicial Officers are occasionally involved in responding to complex social situations
involving vulnerable groups such as PWID, SW and people affected by mental illness. How the
Judicial Officers interact with these populations can have wide ranging implications for broader
societal values of inclusiveness and human rights. The way that the Judicial Officers interact in
the community with various groups can either promote individual and public health or negatively
impact on it94.

94
United Nations. Office of the High Commissioner for Human Rights, 2013.
http://www.ohchr.org/EN/Issues/SRHRDefenders/Pages/Defender.aspx
M O D U L E 5.
By respecting the rights of all members of the community, the Judicial Officers can contribute to
reducing widespread stigma and discrimination often faced by certain groups. Understanding the
impact of criminalisation, stigmatisation and discrimination often faced by vulnerable groups is a
critical component of being able to work with all groups in a community and uphold the values
that should be inherent in all states.
The Judicial Officers are a very visible arm of the State and as such they need to be seen to
promote and protect fundamental rights. Through addressing stigma and discrimination toward
vulnerable groups using a Human Rights and Community Policing/Crime Prevention
Framework, the Judicial Officers can promote tolerance and understanding in society. Through
partnerships with other sectors and visibly supporting the work of sectors and organisations that
work with KP, the Judicial Officers can significantly contribute to the goal of scaling up
comprehensive HIV prevention, treatment, care and support for all members of the community.
Evidence also suggests a host of positive benefits appear for the law enforcement agencies and
institutions including improvements in community relations and crime reduction, when the
Judicial Officers protect the rights of vulnerable populations, there are.
The role of the Judicial Officers in the national HIV response is shaped by the nature of the
epidemic in the country and the social, legal, cultural and political context in which a response
takes place. In a generalized HIV epidemic, the Judicial Officers are engaged in managing the
social issues relating to drivers and consequences of infection such as through their interactions
with people who live in abject poverty, street children, victims of trauma including gender based
violence, rape and war and displaced populations resulting from war or disaster. In a
concentrated epidemic which is primarily among KP including People Who Inject Drugs
(PWID), Prisoners, Sex Workers (SW) and Men who have Sex with Men (MSM), the Judicial
Officers should be primary partners in the response by supporting access of the KP to evidence
based HIV prevention, treatment, care and support services. The alarming plight of FWID
(alternative referred to as Women Who Inject Drugs -WWID) who are themselves a fraction of
the larger group of FWUD (alternative referred to as Women Who Use Drugs -WWUD); is
tragic. Their addiction aggravates their lamentable socio-economic reality, compelling them to
engage in risky behaviour and/or illegal conduct. They are often both the victim and the
victimizer of even more vulnerable person, such as their children.
In both types of epidemics, an enhanced the Judicial Officers’ response can be negatively
impacted if their role is not well understood and if tensions between sentencing and public health
objectives, such as through contradicting laws and policies, are not addressed. Operational
culture and practice of the Judicial Institution can also negatively impact and enhanced the
Judicial Officers response to HIV.
The role of the Judicial Officers within a society and its communities is complex; although their
primary role is to deal with crime, there are many other complementary roles within crime-
prevention. These include helping people who are at risk, diverting potential offenders away
from criminal justice and talking to young people about drugs. The Judicial Officers are
confronted with cases involving PWID, FSW, MSW, street children and migrants and so can act
as a link to education and services that these groups may not have heard of or have access to.
72

M O D U L E 5.
Studies on policing and drug enforcement have helped to identify alternatives to traditional
enforcement approaches that can have substantially improved effects on both individual and
public health as well as reduce crime and improve public safety. These include modifying
policing practices to an approach better suited to community policing approaches involving
fostering partnerships between policing and public health agencies, education and access to
programmes aimed at making drug use safer and providing voluntary evidence-based drug
dependence treatment programmes in the community and education aimed at the Judicial
Officers themselves to help deal with their attitudes and any possible discrimination on their part
towards these communities. Effective HIV prevention and policing vulnerable populations are
not separate aspects of law enforcement agencies’ policy and practice, but a fundamental
component of good policing95. The Judicial Officers need to understand the profound effect that
policing practices can have on the effectiveness of HIV prevention initiatives, and in
perpetuating HIV/AIDS related stigma and discrimination. Harassment and intimidation of
people vulnerable to HIV infection or already infected with HIV can impede the effectiveness of
HIV prevention and treatment programmes by driving people underground, and making them
more difficult to reach with HIV prevention and treatment messages. Stigma and discrimination
also discourage people from accessing HIV testing facilities, with the result that less people will
know their HIV status, and therefore won't take action to avoid transmitting HIV to other people.
Even where a person is aware of their HIV positive status, stigma and discrimination can
discourage them from accessing information, treatment, care and support services. Personal
opinions involving disapproval of drug use, of commercial sex or of sex between men should not
interfere with HIV prevention, treatment, care and support programmes that save lives.
RISKS & VULNERABILITIES.
Whilst PWID –in Kenya- tend to be hard-to-reach members of society; they are still entitled to
access to the same levels of health-care services as other members of that society, because that is
their human rights.
Factors that increase PWID’ vulnerability to HIV; and that make it difficult for PWID to access
services include the following:
§ Punitive and/or restrictive legislation and government policies that hinder the ability of
PWID to access voluntary and confidential health information and health-care services
§ Health-care services are structured with systematic deficiency that do not addressed, and
do not acceptable, accessible, or affordable health-care services to PWID.
§ Stigmatization and marginalization by health-care service providers and program staff
create barriers for PWID that hinder their access health-care and social services.
§ PWID often lack resources and economic opportunities to support their health-care needs.

95
International Labour Organization. An ILO Code of Practice on HIV/AIDS and the World of Work, International
Labour Office, Geneva, 2001. http://www.unplus.org/downloads/wcms_113783.pdf. Law Enforcement and HIV
Network (LEAHN), The International Police Advisory Group (IPAG) of the Law Enforcement and HIV Network,
Statement of Support by Law Enforcement Agents for Harm Reduction and Related Policies for HIV Prevention,
Melbourne, 2012. http://www.leahn.org.
73

M O D U L E 5.
KP RISKS & VULNERABILITIES.
“Risk” refers to “the probability that a person may acquire HIV infection” (largely resultant
from specific behavior(s) that allows for HIV transmission. Such behaviours create, enhance and
perpetuate risk. Examples of such behaviour include unprotected sex with a partner whose HIV
status is unknown, multiple unprotected sexual partnerships, and injecting drug use with
contaminated needles and syringes). Whilst “Vulnerability” refers to when one’s ability to avoid
infection is diminished by one or more other factors, (e.g. lack of personal knowledge or skills,
the influence of cultural norms that validate risky behaviors, or physical surroundings that make
risk-reduction difficult or impossible)96. “Driver” relates to structural and social factors, such as
poverty, gender inequality and Human Rights violations, that are not easily measured and which
increase people’s vulnerability to HIV infection.
Fully comprehending the HIV-related risks and vulnerabilities of PWID is not clearly
understood, both in terms of their size and distribution. The PWID are socially marginalized and
subject to criminal penalties for engaging in their behaviors; yet these behaviors are what are
needed to define them for epidemiological purposes. It has often been difficult to conduct
relevant studies to quantify their HIV prevalence or identify the key factors associated with their
increased risk of infection.
WOMEN WHO INJECT DRUGS (WWID).
Women Who Inject Drugs (WWID) are at greater risk for HIV than men. This is due to a number
of reasons including exposure to gender-based violence, the trading of sex for drugs and a
decreased ability to negotiate safe sex. Law enforcement officers need to be acutely aware of the
heightened risk for women who inject drugs and be able to protect the rights of women who
inject drugs as well as be able to support service provision for women who inject drugs.
HIV RISK ENVIRONMENTS.
The space where sentencing and related policies intersect with KP is often where social networks
of KP are engaged in activities that challenges the boundaries of how Judicial Officers are meant
to respond. The idea of these series of slides is for Judicial Officers to actually consider what an
HIV risk environment may look like. Instructors should ask Judicial Officers to describe how
certain geographical locations or case-by-case sentencing of PWID can increase the HIV risk
environment.
DECREASING THE RISK ENVIRONMENT.
§ What can Judicial Officers do to decrease the HIV risk environment?

§ What can be done to change risk levels?
§ What are some of the negative sentencing strategies that affect HIV risk?
§ What are the positive strategies that can decrease risk?

96
Source from UNAIDS, 2007; see Bates et al., 2004.
74

M O D U L E 5.
We want the participants to think about their roles in working with KP and to further think about
what sort of support they need to provide to play a more enhanced role in reducing the risk and
vulnerability of people to HIV.
§ What do they need from the leadership in the Judiciary?

§ What do they need from the Judiciary as an institutions?
§ What about the concept of a known and widely publicized sentencing policy that is
community derived-and-focused? That addresses the entire community and not simply
pockets of that community.
KENYA NATIONAL HIV/AIDS STRATEGIC PLAN, 2009-2013 (KNASP III).
KNASP III envisages the implementation of the KP programs that are mandates to provide
technical leadership in the development of policies, strategies, service-delivery packages and
guidelines targeted at high-risk groups (such as PWID). The national program works closely with
stakeholders (such as government agencies, the donor community, research institutions, civil
society and KP networks).
The plans succeed demands the realization of–inter alia:

§ Improvement of existing coordination-structures (preferably through reform of the
national program).
§ Formation of multi-sectorial technical working groups.
§ Mapping of PWID hotspots.
§ Estimating population sizes of PWID.
§ Integrated bio-behavioral surveillance of PWID.
§ Stake-holder analysis.
§ Development of service guidelines and other programming tools targeted at PWID.
§ National peer-educators training manual.
§ Soliciting political support from lawmakers.
§ Establishing service-delivery models targeted at PWID.
§ Development of referral networks targeted at PWID.
§ Piloting new interventions targeted at PWID (e.g. opioid substitution therapy.)
§ Financing and sustainability of PWID-targeted programs.
HUMAN RIGHTS POLICING AND UNDERSTANDING DIVERSITY.
It is important that participants have an understanding of international good practice policing

philosophy and frameworks. This sets baseline knowledge and understanding for the entire
training. Trainers should make themselves familiar with the principles of community policing
and Human Rights policing.
Key ingredients within the judgment that ensure the sentencing determination espouses the tenet
of Human Rights97; amid is thus Human-Rights-Policing compliant:
§ Dignity

97
OHCHR, International Human Rights Standards for Law Enforcement.
http://www.ohchr.org/Documents/Publication/training5Add1en.pdf.
75

M O D U L E 5.
§ Respect
§ Serving the community
§ Protecting the community
§ High standards professionalism and ethical conduct
§ Free from corruption
§ Free from discrimination
COMMUNITY POLICING.
Introduce community-policing principles to participants. Explain that ‘community policing’ is an

Internationally Recognised Policing Philosophy that fits well within a Human Rights
Framework. Acknowledge that many Judicial institutions around the world have to contend with
pre-judicial law enforcement organs that are based on a ‘command and control’ or Para-Military
Models –as are the pre-sentencing law enforcement organs, however the principles of community
policing can be easily applied to any context. It is based on the following tenet.
§ High visibility of law enforcer.
§ Engagement with the community.
§ Focus upon vulnerable populations & recognition of special needs.
§ The embracing of diversity with every community.
§ Problem-solving.
§ Active involvement of community members
§ Other terms associated with community-policing include community-engagement, Problem-
Oriented Policing, and Crime Prevention. It emphasizes a Proactive, Collaborative
Approach to Solving Complex Social Problems.
BENEFITS AND CHALLENGES OF COMMUNITY POLICING.
When Community Policing is done well, it results in significant benefits for both the community
and the Judicial Officers. These slides examine what those benefits are and highlight that
Community Policing can result in significant advantages for Judicial Officers in terms of crime
reduction, improved community trust in the Judiciary; as well as better outcomes for populations
at greater risk of HIV. There are a range of threats to growing a culture of Community Policing
and these can be related to legislation, community norms and expectations and the support for
Community Policing within the leadership of law enforcement institutions.
76

M O D U L E 5.
PANEL DISCUSSION
“COMMUNITY ENCOUNTERS”.
This Module can be expanded to include a ‘Community Encounters’ Panel involving

representatives from key community groups, such as a former or current drug user, someone
living with HIV, a sex worker and people working for non-government organizations who work
in HIV programmes with key populations. This practical session is designed as a ‘Meet and
Greet’ and would directly follow the lecture from a previous Module. It aims to provide the
trainee with an opportunity to communicate informally with people from diverse backgrounds,
providing a ‘human face’ (less formal –or legal procedure bound interaction); thus reducing
stigma and discrimination. It also provides an opportunity for Judicial Officers to hear directly
about the impact of sentencing practices on risk and vulnerability. It provides an opportunity to
address these issues.
77

MODULE 6.
INTRODUCTION TO DRUGS, POLICING AND

HARM REDUCTION.
M ODULE 6.
INTRODUCTION TO D R U G S , P O L IC IN G AND H A R M R E D U C T IO N .
Having orientated the Judicial Officers in a previous Module to the concepts of Human Rights
Policing and Community Policing with KP. This Module is designed to provide participants with
a more in depth understanding of drug use. The Module sets out to enhance participants
understanding of different types of drugs, the varying level of psychoactive effects of certain
drugs and that people use drugs for a range of reasons. Furthermore, the trainer will be able to
explain how drug use influences some behaviour that can increase risk of HIV and other Blood-
Borne Viruses (BBVs) such as HCV and HBV.
One of the purposes of this course is to acknowledge that there are different levels of drug use.
Some people use some types of drugs recreationally with minimal disruption to their health or
social lives. Other people use drugs more frequently and there can be harmful effects but drug
dependence is treatable.
The main premise is that drug use needs to be considered through a health lens rather than
through a criminal lens.
At the end of this module participants should have:

§ An increased understanding and awareness.
§ Of different Types of Drugs:
• The Mode/Manner of Administering the Drugs.
• The Prevalent Levels and Patterns of Use of the Drugs.
• Their Effects on the Drug User (and upon persons connected to the Drug User).
§ Of the drugs in use in Kenya –generally- and in individual areas in Kenya.
§ That responding to drug use requires a balanced approach; including the need to
understand and support Harm Reduction Approaches.
§ Of Drug Use in the community, and especially that:
• Drugs can be both licit (tobacco and alcohol) and illicit.
§ Of the most frequently used drugs in their community.
§ Of why people use drugs,
§ Of how Drug Use impacts on HIV Risk.
§ Of the difference between Drug Use and Drug Dependence.
§ An introductory understanding of the Concept of Harm Reduction as an approach to HIV and
other BBV Prevention.
§ An introductory understanding of what constitutes a ‘Comprehensive Package’ of
Interventions for HIV Prevention, Treatment and Care among PWID.
§ The ability to identify the benefits of Harm Reduction Approaches for Crime Prevention and
Public Order.
§ A developed awareness of how Law Enforcement Practices influence the success or failure
of Harm Reduction Interventions.
M O D U L E 6.
HIV can be spread through sharing of unsterile needles and syringes and other equipment used in
preparing and injecting drugs. Worldwide, unsafe injecting drug use is second only to
unprotected heterosexual intercourse as a cause of HIV transmission.
There are an estimated 12.7 (8.9-22.4) million PWID worldwide, with highest prevalence rates
in Eastern/South Eastern Europe, Central Asia and Trans-Caucasia. Globally, 1.7 million
(13.1%) PWID are living with HIV with highest HIV prevalence rates of 28.8% and 23.0% in
South West Asia and Eastern/South Eastern Europe respectively98.
WHAT IS A DRUG?
“Drugs” are any substance, with the exception of food and water, which, when taken into the
body, alters its function physically, and/or psychologically. (World Health Organisation, 1981).
They can be both licit and illicit substances; and have different effects on both the body and the
brain. Some drugs make everything speed up (such as stimulants); some drugs are depressants
and make things slow down (such as heroin and alcohol).
CATEGORIES OF DRUGS
STIMULANTS:
Enhance activity in the central nervous system (the brain and spinal cord).
For example:
§ Caffeine,
§ Ecstasy,
§ Cocaine,
§ Nictine,
§ Amphetamines,
§ Ephedrine, and
§ Pseudo- Ephedrine.
DEPRESSANTS:
Slow down the functioning and activity of the central nervous system.
For example:
§ Alcohol,
§ Opiates,
§ Opioids,
§ Non-Opiate Analgesics,
§ Benzodiazepines,
§ Barbiturates,

98
United Nations Office of Drugs and Crime. World Drug Report, 2014.
http://www.unodc.org/documents/wdr2014/World_Drug_Report_2014_web.pdf.
80

M O D U L E 6.
§ Cannabis,
§ GHB (Gammahydroxybutrate),
§ Anti-Histamines,
§ Some Solvents, and
§ Inhalents.
HALLUCINOGENS:
Distort messages to the central nervous system – causing disturbances in thought and perception.
For example:
§ LSD,
§ DMT,
§ Mescaline,
§ PCP (Phencyclidine – Angel Dust), and
§ Psilocybin.
RISK AND HARMS OF ALCOHOL99.
Some evidence suggest a correlation between heavy and harmful drinking patterns and an
increased likelihood of sexual risk-taking behaviours, including engaging in unprotected sex.
Excessive drinking patterns may influence sexual risk-taking by affecting judgment and reducing
inhibitions, thereby diminishing perceived risk or excusing behaviours otherwise considered
socially unacceptable. Heavy drinking has been linked to decreased inclination to use condoms.
DIFFERENT DRUGS, DIFFERENT RISKS AND IMPLICATIONS FOR HEALTH.
OPIATES/HEROIN.
Risk of sharing injecting equipment

§ Fear of arrest means people who use drugs are reluctant to carry needles (new or used)
§ Painful withdrawal symptoms means people want to inject heroin as soon as they buy it.
Thus, if no sterile needle/syringe, they might resort to sharing used needle/syringe.
§ Unsafe injecting drug use places people at higher risk of HIV. Sex without a condom can
place them and their partner at risk of HIV.
ALCOHOL.
§ Heavy and harmful drinking patterns have been correlated with an increased likelihood of
sexual risk-taking behaviours, including engaging in unprotected sex.
§ Alcohol can play a role in violent behavior or affect mental health.

99
For further information:
http://www.icap.org/policytools/icapbluebook/bluebookmodules/24hivaidsrisksanddrinkingpatterns/tabid/182/defaul
t.aspx.
81

M O D U L E 6.
AMPHETAMINES.
§ Can make people more aroused (increased libido)

§ Often associated with rougher sex and longer sessions of sex.
§ Lack of clear thoughts and decision-making on condom use.
§ There are also increasing reports of people injecting crystal methamphetamine.
§ Can lead to violent behavior and affect mental health.
WHAT IS HARM REDUCTION?
DEFINITION:
“Harm Reduction” refers to policies, programmes and practices that aim primarily to reduce
the adverse health, social and economic consequences of the use of legal and illegal
psychoactive and narcotic drugs, without necessarily reducing drug consumption.
WHO, UNODC and UNAIDS recommend a Comprehensive Package of 9 Interventions, also

known as ‘Harm Reduction’ Services, for people who inject drugs to stop the spread of HIV
among this population group100. These are:
partners;
The Commission on Narcotic Drugs (CND), the UNAIDS Programme Coordinating Board
(PCB) and the United Nations Economic and Social Council (ECOSOC) endorsed the
comprehensive package for PWID.
2006, 2008 and in 2011.
Based on the World Drug Report 2014, in 16 high-prevalence countries — which account for
45% of the global number of PWID and 66% of the global number of PWID living with HIV —
a generally low level of harm-reduction service provision can be noted, particularly with regard
to the NSPs and OST.

100
WHO, UNODC and UNAIDS Technical Guide for countries to set targets for universal access to HIV
prevention, treatment and care for injecting drug users, 2012 revision,
82

M O D U L E 6.
Evidence from around the world suggests that Harm Reduction Strategies can be mounted given
the political will to do so. Based on experience in numerous communities and governments, an
effective Harm Reduction Policy must be developed using the best available epidemiological
information and evidence of effectiveness and with the participation and support of as many
stakeholders as possible.
It is characterized by flexibility, a health promotion approach, non-repressive legislation (such as

laws that allow for distribution of needle-syringe), and law enforcement based on community
policing and de-stigmatization. It also ensures adequate coverage of the population and
sustainability of efforts. To implement the policy, countries need to provide education for law
enforcement personnel on the harms associated with punitive responses and on health-promoting
alternatives.
83

MODULE 7.
THE COMPREHENSIVE PACKAGE FOR

PREVENTION OF HIV, HEPATITIS AND TB
AMONG PWID.
M ODULE 7.
T H E C O M P R E H E N S IV E P A C K A G E FOR PREVENTION OF HIV, H E P A T IT IS
A N D TB A M O N G PWID.
Having introduced the participants to the Concept of Harm-Reduction in a previous Module, it is

time now to give them a much more in depth review of what Harm-Reduction actually looks like
in practice. This Module is specifically designed to orient the participants to the components of
what is regarded as the ‘comprehensive package’ for HIV prevention among PWID. The series
of slides in this Module not only review the comprehensive package but also examine the role of
the Judicial Officers in each of the components. This Module also highlights the benefits to the
Judicial Officers and the wider community of supporting the comprehensive package. Research
shows that the Judicial Officers are generally more receptive to interventions which benefit the
wider community, rather than focusing only on the benefits to individuals at risk of HIV.
By the end of this Module, participants should have a much higher level of awareness about
public health oriented responses to drug use outlined in the Comprehensive Package and
specifically should have:
§ Increased knowledge and understanding of a comprehensive approach to the prevention,
treatment and care of HIV, Hepatitis and TB through increasing familiarity with components
of the Comprehensive Package;
§ Understood the relationship between components of the Comprehensive Package and HIV
Prevention, Treatment and Care Policies;
§ Examined the role of the Judicial Officers for each intervention in the Comprehensive
Package;
§ Understood the benefits of the Comprehensive Package for Judicial processing of, PWID and
their sexual partners, as well as for the wider community.
THE COMPREHENSIVE PACKAGE FOR HIV PREVENTION, TREATMENT CARE AND

SUPPORT AMONG PWID.
WHO, UNODC and UNAIDS recommend a Comprehensive Package of 9 Interventions, also
known as ‘Harm Reduction’ services, for people who inject drugs to stop the spread of HIV
among this population group101. These are:
§ Condom programmes for people who inject drugs and their sexual partners;

101
treatment and care for injecting drug users, 2012 revision,
M O D U L E 7.
partners;
CND, PCB and ECOSOC endorsed the comprehensive package for people who inject drugs.
2006, 2008 and in 2011.
This UN Comprehensive Package was put together in order of priority and evidence, with NSPs
and OST being the most important and having the best evidence base of the nine interventions.
Over the past three decades, law enforcement agencies in many parts of the world have
recognised that these harm reduction measures also reduce crime, save money and improve
health. This has meant increasing support for components of the Comprehensive Package.
Cities where these strategies have proved successful in avoiding an HIV epidemic among people
who inject drugs have four features in common:
1. The use of community outreach or peer education to reach and educate drug users;
2. Cheap and easy access to sterile syringes;
3. Early action on prevention, before HIV prevalence reached a critical point; and
4. The availability of OST and ARV.
In many of these settings, Judicial Operations and Practices work towards enhancing access to
these services.
NEEDLE AND SYRINGE PROGRAMMES (NSPS).
NSPs are essentially the provision of free or very cheap new needles and syringes to PWID. The
NSPs can be mobile, at fixed sites or delivered by outreach teams. The operating hours of NSPs
are generally designed to adapt to the organization of the lives of PWID. The most effective
programmes are the NSPs that do not require exact exchange of used needles for new needles but
instead provide the number of new needles and syringes required by a person for a period of time
defined by the PWID.
NSPS: CONSIDERATIONS FOR JUDICIAL OFFICERS.
Punitive approaches also tend to push drug use further underground, where needle sharing
becomes more common, with related increased transmission risk of other blood borne viruses.
The proximate agent of this influence is the law enforcement sector. It is important to consider
how Sentencing Policies/Practices by Judicial Officers impact on programmes which might be
funded by the government also. In addition, when PWID are under pressure from Law
Enforcement Officers they panic, which may result in the abandoning of used needles in public
space which creates a health and public security concern for the community.
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M O D U L E 7.
OPIOID SUBSTITUTION THERAPY (OST)102.
OST is a Long-Term Medical Treatment (Methadone and Buprenorphine are medicines) that
can be taken under medical supervision and is based on the principle that a drug user will be able
to regain a normal life while being treated with a substance that prevents withdrawal symptoms
but does not provide strong euphoria. OST with Methadone or Buprenorphine, is highly
effective in reducing injecting episodes, which in turn reduces the risk of HIV transmission.
PEER OUTREACH BENEFITS AND CONSIDERATIONS FOR JUDICIAL OFFICERS.
Drug use is a highly stigmatised activity; drug users and their sexual partners may find it difficult
to access medical and social services through traditional agencies.
Peer outreach workers can access hard-to-reach PWID and advocate protective behaviours such
as discontinuing drug use, using sterile syringes, disinfecting injection equipment, and using
condoms. The distribution of materials that facilitate risk reduction (condoms, lubricant, cottons,
cookers, alcohol swabs, etc.) is an important function of community outreach workers in
initiating behaviour change. Likewise, providing information about the availability of sterile
syringes, drug dependence treatment, HIV/AIDS treatment, and other medical and social services
within the local community is also important.
Peer Outreach does not necessarily emphasise reaching out to HIV-positive drug users. This is
because people who are unaware of their sero-status may engage in risky behaviours not
knowing they or others may be put at risk. Studies show that PWID who are aware of their HIV
positive status are able to make major behaviour changes to protect their injecting and sexual
partners. To this end, the present intervention model can be adapted to help PLWHIV to access
HIV medicines and adhere to ARV treatments that can prevent progression of HIV disease,
inform their drug and sex partners about potential risk of infection and the importance of getting
tested and counselled for HIV and other blood-borne infections, and initiate behaviour change
that may prevent transmission of the virus to others.
CHALLENGES FOR THE JUDICIAL OFFICERS WHEN THINKING HARM REDUCTION

PROGRAMMES103.
JUDICIAL PRACTICES THAT BLOCK DRUG USERS’ ACCESS TO STERILE SYRINGES.

§ Punitive sanctioning and detention of outreach workers, and PWID who attempt to obtain
health-care information and sterile syringes from pharmacies and legal syringe exchange
sites.
§ The resultant consequence is that some PWID are unwilling to carry safe injection or bleach
kits due to fear of arrest. These PWID are reportedly more than one-and-a-half times more

102
For further information on Cost effectiveness reference: National Institute of Drug Abuse, NIDA International
Programme, Methadone research, http://international.drugabuse.gov/educational-opportunities/certificate-
programmes/methadone-research-web-guide
103
Sourced from the Public Health Fact-Sheet on Police, Harm Reduction, and HIV, authored by International
Harm Reduction Development Program (IHRD) that is run under the auspice of the Open Society Institute’s Public
Health Program. Further reference is made to the Factsheet’s source materials as cited in the document’s endnotes.
87

M O D U L E 7.
likely to report sharing needles. Whilst others will hide syringes in bushes or abandoned
buildings, and even flush them down toilets, or give them to others to hide; to avoid being
caught with a syringe. These behaviours create a hazardous environment for people who
come in contact with the unsanitary injection paraphernalia.
TARGETING PWID FOR ARREST INCREASES UNSAFE INFECTION BEHAVIOUR.

§ The fear of arrest often makes PWID hurriedly attempt to inject drugs, which has meant the
PWID often fail to disinfect the injection areas on their body, or dress wounds after injecting,
or first test drugs for its strength prior to injection to avoid overdose. They are at risk for
suffering the serious consequences of an imprecise injection technique that could result in
paralysis or death -if they puncture an artery or a major nerve. They are also more likely to
share injection equipment, putting them at risk of contracting HIV.
CRIMINAL LAWS DETER PWID FROM SEEKING HEALTH-CARE AND EMERGENCE SERVICES.
§ Punitive sanctioning and detention of outreach workers and staff at syringe exchange
programs has reduced program attendance and limited expansion of these services. This
increase the length of time that contaminated needles circulated on the street.
§ Punitive sanctioning and detention of PWID, results in the displacement of PWID
communities, making it difficult for outreach workers to reach PWID who repeatedly move
to new locations to evade police raids.
§ In some countries, the existence of government registries of suspected or proven PWIDs, has
seen PWID avoid seeking life-saving services due to fear that their names will be reported to
Judicial Officers or their employers.
§ PWIDs are unwilling to seek medical assistance during or following an overdose, due to fear
of arrest.
INCARCERATION OF PWID INCREASES RISKY BEHAVIOUR AND ENDANGERS THEIR HEALTH.

§ Mass incarcerations of PWID make prisons key sites for the transmission of HIV, since
unsafe injecting practices often continue there in the absence of HIV prevention services.
§ Several countries frequently have long pre-trial detention or actual imprisonment of PWIDs,
where hard drugs are available and syringe sharing is common, but where drug treatment and
HIV prevention programs are unavailable.
THE ‘WAR ON DRUGS’ HAS BEEN ASSOCIATED WITH EXCESSIVE FORCE AND INAPPROPRIATE
JUDICIAL OFFICERS BEHAVIOUR.
§ Anti-drug campaigns in numerous countries have been associated with Judicial Officers
extortion and violence against suspected PWID (including state-sanctioned vigilantism and
assassination of PWIDs).
§ Some government-lead anti-drug campaign have been plagued with reports planted drugs,
forced false confessions, and coerced enrolment in drug treatment programs, fearing
threatened arrest and incarceration.
§ In countries report incidents sexual assaults and similar coerced acts of gender-based
violence perpetuated by the Judicial Officers upon PWIDs, (such as forcing PWID to disrobe
in public spaces and handling items, like their undergarments in an inappropriate manner
during drugs raid).
88

M O D U L E 7.
KEY POPULATIONS INTERVENTIONS.
The HIV Package of Services has 3 Conceptual Components104:
BEHAVIORAL COMPONENTS:
These are a range of behavior-change communication programs that use various communication
channels (mass-media, community level or interpersonal) to disseminate behavioral messages
designed to encourage people to reduce behaviors that increase risk of HIV and increase
protective behaviors. Behavioral interventions are also aimed to increase acceptability and
demand for bio-medical interventions.
§ Behavioral Components Tailored to Target Mainly PWID.

§ Peer-Education and Outreach.
§ Risk Assessment, Risk-Reduction Counseling and Skills-Building.
§ Screening and Treatment for Drug and Alcohol Abuse.
BIO-MEDICAL COMPONENTS:
These directly influence the biological systems through which the virus infects a new host such
as: blocking infection (e.g. avoiding use of shared injection needles), decreasing infectiousness,
Anti-Retroviral Therapy (ART); and prevent and reduce acquisition/infection risk.
§ Bio-medical Components Tailored to Target Mainly PWID.

§ HIV Testing and Counseling.
§ STI Screening and Treatment.
§ TB Screening and Referral to Treatment.
§ HIV Care and Treatment.
§ Post-Exposure Prophylaxis.
§ Screening and management of Hepatitis B.
§ Opiates-substitution Therapy.
§ Needle-exchange program.
STRUCTURAL COMPONENTS:
These are interventions that aim to address and changes root causes or structures like Social,
Economic, Political and Environmental Factors that determine or affect individual or
community’s HIV risk and vulnerability in specific context. These interventions attempt to
reduce an individual’s HIV-related vulnerability by creating the conditions in which people can
adopt safe behaviors (and fulfill their Human Rights). Structural approaches are part of overall
HIV prevention strategy and must be complemented by other prevention methods.
§ Structural Components Tailored to Target Mainly PWID.

§ Ensuring 100% Condom Use.
§ Mitigate and manage sexual Violence.
§ Mitigating violation of human rights.
§ Psycho-social support.

104
Modified from the 3 Components in the HIV/STI Package of Services for MARPs and Theirs Ex-Partners; fronted
by Merson, M.H., Lancet, 2008.
89

M O D U L E 7.
§ Family and Social Services

§ Access to micro-credit and other financial products
OVERDOSE WHILE IN THE PRESENCE OF THE JUDICIAL OFFICERS.
It is important for the Judicial Officers to recognize that a person who is exhibiting signs of
potential overdose requires urgent medical attention. Protecting lives is a law enforcement
priority. The Judicial Officers’ behaviour at a fatal or non-fatal overdose will influence how the
overdosed person and/or any other persons in the vicinity of the overdose incident respond
during the incident, and/or in future emergencies.
Judicial institutions should ensure that there is an updated Policy and Standard Operating
Protocol that allows the Judicial Officers, the best possible opportunity to prevent drug (opioid)
overdose, and manage intoxicated people in their court, or in custody.
Fatal drug overdoses may need to be interrogated through an Inquest, led by the relevant Judicial
Officers in order to determine the exact cause of death;
Research has shown that a significant proportion of people detained in Police Stations tend to be
intoxicated or affected by drugs. People who are intoxicated can be at increased risk of engaging
in various other offences, harming others, being a victim of crime, or suffering self-inflicted
injury (deliberate or accidental).
THE USE OF NALOXONE.
Naloxone is a medicine that reverses respiratory depression from opioid overdose. There is an
increasing push around the world to expand access to naloxone and also to increase the number
of people who can use naloxone especially among people who are often first on the scene in an
overdose situation. People often in a position to use naloxone and reverse an opioid drug
overdose include first responders and also other PWIDs. Naloxone is easy to be administered by
sub cutaneous, intramuscular or intravenous injection.
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MODULE 8:
LAW ENFORCEMENT AND THE USE OF

DISCRETION, DRUG DIVERSION PROGRAMMES
AND THE ROLE OF ETHICAL FRAMEWORKS.
M ODULE 8.
L A W E N F O R C E M E N T A N D T H E U S E O F D IS C R E T IO N , D R U G D I V E R S I O N
P R O G R A M M E S A N D T H E R O L E O F E T H IC A L F R A M E W O R K S .
This Module provides trainers with detailed guidance for the delivery of a lecture focusing on the
Judicial Officers’ decision-making in line with harm reduction approaches. It explores the
Judicial Officers’ use of discretion, and provides an ethical framework for utilising discretion
and diversion.
The purpose of the first part of the module is to discuss the use of discretion openly and
recognize that it is an important feature of day-to-day Judicial determination.
The second half of the Module explores the use of diversion mechanisms and aims to
demonstrate to the Judicial Officers how alternatives to retributive sentencing can be more
effective, at achieving community safety objectives.
The drug diversion programmes addressed in this Module benefit people who use drugs by
enabling them to gain access to treatment services, as well as other health and social services to
improve their own wellbeing.
This Module also focuses on the benefits of such drug diversion programmes to the Judicial
Officers, such as:
§ A reduction in the Judicial resources spent trying and sentencing PWID.
§ A reduction in drug-related crime as a result of the fall in illicit drug use.
LEARNING OBJECTIVES
After taking this Module, participants will have a greater understanding of and capacity to use
and justify using discretion whilst being held accountable for their decisions. Participants will
recognize that often the day-to-day decisions cause them the most anxiety rather than such issues
as corruption and the Judicial Officers’ hostility to PWID. Participants will be introduced to the
concept of an ‘ethical dilemma’, and how to identify when they are required to make a decision
in these circumstances. Participants will develop awareness of a number of ethical frameworks
that they can use to help them make ethical decisions.
Specifically, in exploring this Module the participants will be aware of and understand the
following concepts:
§ The Judicial Officers’ use of discretion and ethical frameworks:

• Understanding of the definition of ‘Discretion’
• Understand the factors which make up an Ethical Dilemma
• Develop awareness of specific ethical frameworks to justify decision making in relation
to Drug Use and Harm Reduction.
• Decision making and accountability to superiors and the community
§ Drug diversion programmes:

M O D U L E 8.
• Understanding what diversion from criminal justice prosecution means

• Develop an awareness of a range of programmes which can divert people who use drugs
from criminal prosecution
• Develop an appreciation of the benefits of drug diversion programmes for the individual,
community and the Judicial Officers.
• Have a general overview of the evidence base supporting drug diversion programmes
It is common practice among the Judicial Officers to enforce the law with some discretion in
many areas. Exercising consistent and wise use of discretion within the law, based on
professional Judicial competence, does much to retain the confidence of the public. Although it
can often be difficult to choose between conflicting courses of action, it is important to
remember that a timely word of advice rather than lengthy sentence, which may be correct in
appropriate circumstances, can be a more effective means of achieving a desired end.
For example, the Judicial Officers may often determine whether to enforce laws more or less
vigorously. They may decide on which areas to focus their resources and on what crimes they
will concentrate. The use of discretion can also assist the diversion of people away from criminal
justice systems and into health and social sectors. The use of discretion can save precious law
enforcement resources and also result in significant individual and public health benefits for KP.
The use of drug diversion programmes can offer the Judicial Officers the opportunities to use
their discretion and assist people to avoid arrest and prosecution and refer people away from
criminal justice systems (including diverting away from prisons) and into health orientated
assistance.
In contexts where drug use is illegal, the use of discretion by the Judicial Officers is integral to
supporting the major investments governments and local and international agencies make in
harm reduction programmes.
The Module introduces the important but under-examined use of discretion by the Judicial
Officers in supporting harm reduction approaches. Officers of all levels of the Judiciary from
junior and mid ranks, to more senior Judicial Officers need to understand how decisions that
avoid trial or retributive sentencing of drug users can also be ethical and just.
In many cases, the Judicial Officers may rigidly enforce illicit drug laws to resolve situations in a
way that does not question their accountability to the law or their superiors The Judicial Officers
are often criticized for enforcing the law when others believe that a warning or similar would
suffice; however, the Judicial Officers are also criticized in some circumstances where they do
not enforce the law for ‘taking the law into their own hands’. This can be a sensitive issue for the
Judicial Officers at any level and create ethical and professional dilemmas.
This module is designed to provide a framework for the Judicial Officers to make ethical
decisions that support harm reduction in an environment with punitive illicit drug legislation.
Evidence shows that the Judicial Officers who are trained in the ethical use of discretion are
more likely to feel confident in using it.
93

M O D U L E 8.
WHAT IS DISCRETION?
The review offers definitions of Judicial discretion but notes that there is no legal definition of
the term, but the most widely quoted definition is that of Kenneth Culp Davis:
"A public officer has discretion whenever the effective limits on his power leave him free to make
a choice among possible courses of action or inaction."105 - Kenneth Culp Davis. A review of
the law and discretion notes that the law recognizes that discretion is a necessary and crucial part
of Judicial Officers’ work that they alone –when sitting as a competent court can define.
WHAT IS AN ETHICAL DILEMMA?

DISCRETION AND ETHICAL DILEMMAS.
Some research indicates that Judicial Officers are much more concerned with smaller day-to-day
decisions than the major themes (listed on the slide).
ETHICAL FRAMEWORKS.
A discussion of ethical systems provides a procedural framework but also demonstrates that
there often is more than one "Correct" resolution to a dilemma and more than one way to arrive
at the same resolution. Likewise, a person may use the same ethical system to resolve different
moral dilemmas or use multiple ethical systems to resolve a single dilemma.
RELIGIOUS ETHICS:
What is Good conforms to a Deity's Will. Religious ethics borrows moral concepts from
religious teachings and draws on the participants' various religious beliefs. Discussions lead
participants to recognize that religious philosophies are ethical systems based on absolute
concepts of good, evil, right, and wrong.
NATURAL LAW:
What is Good is what Conforms to Nature. If what is natural is good, then participants easily
can appreciate the constraints of a natural law ethical system within the artificial constructs of
modern society. It becomes clear that natural law theory offers only limited assistance when
participants compare peoples' most basic, natural inclinations with their motivations in resolving
complex dilemmas?
ETHICAL FORMALISM:
What is Good is what is pure in motive. When discussing ethical formalism, participants are
asked to resolve a specific dilemma by selecting a resolution that is pure or unblemished in

105
The article is available at: https://www.ncjrs.gov/App/Publications/abstract.aspx?ID=169300 .
94

M O D U L E 8.
motive, regardless of the consequences. Discussions within this framework present almost
absolute answers to ethical dilemmas and show that some actions have little or no ethical
support.
UTILITARIANISM:
What is Good is What Results in the Greatest Good for the Greatest Number. Participants who
find the consequences of resolving a dilemma more ethically significant than the motive behind
the decision making process will resolve a dilemma with what they perceive to be an acceptable
consequence. Yet, in most instances, predicting the consequences is virtually impossible. This
results in discussions that become simply a means to project the most likely effects of choices.
ETHICS OF CARE:
What is Good is What Meets the Needs of Those Involved and Does Not Hurt Relationships.
Law enforcement agency mottoes often reflect a philosophy based on the ethics of care, such as
"To protect and serve." The ethics of care is founded in the natural human response to provide
for the needs of children, the sick, and the injured. Many Judicial Officers operate under the
ethics of care when they attempt to solve problems rather than rigidly enforce the law.
DRUG-DIVERSION PROGRAMMES.
Diversion programmes benefit the individual, the community and the Judicial Officers.
DIVERSION FROM CRIMINAL PROSECUTION.
Diversion from the criminal justice system has a long history. In the late nineteenth century, a
children’s court was established to divert children suspected of committing crimes away from the
punitive adult approach to criminal justice. In its purest form, the term ‘diversion’ applies to
those processes that are at the very front end of the criminal justice system – that is, at the
preapprehension stage before any formal charges are laid – and are focused on diverting
individuals from that system to an alternative form of processing. The obvious example here is
informal Judicial Officers’ cautioning whereby individuals, instead of being apprehended and
charged before Judicial Officers, are simply given a verbal warning with no further obligations
placed on the offender and no officer record kept of the contact. However, over the decades, the
term has acquired a broader application. It is now commonly used to refer to any processing
option that offers what is perceived to be a different and less punitive response to what would
otherwise have applied. In addition, there is now a much greater emphasis on diverting
individuals to an alternative programme rather than simply diverting them from the system.
95

MODULE 9.
CREATING MULTI-SECTORAL PARTNERSHIPS

TO MORE EFFECTIVELY WORK WITH KEY
POPULATIONS TO ENHANCE THE NATIONAL
HIV/AIDS RESPONSE.
M ODULE 9.
C R E A T I N G M U L T I -S E C T O R A L P A R T N E R S H I P S T O M O R E E F F E C T IV E L Y
W O R K W I T H K E Y P O P U L A T IO N S T O E N H A N C E T H E N A T I O N A L
HIV/AIDS R E S P O N S E .
This Module is designed to highlight the key ingredients in partnership formation at the local
level. The Module examines not only the role of the Judicial Officers but also the role of other
sectors. Participants should be able to draw on the previous modules from the course as well as
their community knowledge in order to begin to see how they can form and sustain the necessary
multi-sectoral partnerships. This module informs the final practical session of the course and
should have participants enthusiastic and eager to develop community partnerships.
By the end of this Module, participants should be ready to begin to formulate partnership plans
with multiple stakeholders in the community. They should be aware of the responsibilities of the
Judicial Officers to the partnership and be aware of some of the options that they can implement
to form partnerships with KP.
Specifically participants should be able to:

§ Identify and recall the 6 Main Components of Partnership Formation.
§ Understand the specific role of the Judicial Officers in the partnership.
§ Understand the need for a supportive environment within the law enforcement institutions to
enable partnership formation.
§ Be aware of who the other partners in the community should be and how they work
collaboratively with those partners.
Globally and regionally there are already successful examples of the Judicial Officers assuming
a key role as collaborative partners in HIV prevention, treatment and care. There are also
growing examples demonstrating how the Judicial Officers, criminal justice, public health and
civil society sectors can effectively complement each other, share information and identify
issues, offering a cost-effective way to reduce crime and prevent HIV. In the context of HIV
prevention, treatment and care among PWID, the Judicial Officers need to work alongside other
sectors and communities including PWID and make decisions collaboratively. To be truly
effective all sectors need to work in partnership to develop and support legislation, policy and
practice that facilitate the common goals of HIV prevention, treatment and care enhancing
community safety and reducing crime.
This Module is designed to bring all the learning from the previous modules together. At this
stage in the course, participants should have a sound understanding that they have an important
role to play in protecting and promoting public health outcomes for KP, including for people
who inject drugs. Participants should by now be much more aware of particular issues to be
considered when attempting to engage and communicate with KP. This module examines the
M O D U L E 9.
basic key ingredients for partnership formation between the Judicial Officers, other government
agencies and civil society and community based organizations. Consideration of these key
ingredients will support multi-sectoral approaches to protecting and improving public health
outcomes for KP.
MAIN COMPONENTS OF PARTNERSHIP FORMATION
LEADERSHIP.
The Importance of LEADERSHIP.

§ Leadership from both police and civil society.
§ We need people who can meet regularly and represent the views of their organisations.
§ Respectful and collaborative leadership.
CIVIL SOCIETY & COMMUNITY-BASED ORGANIZATIONS.
Working with and respecting Civil Society Organisations (CSO) and Community-Based
Organisations (CBO).
§ Importance of coordinating mechanisms between police and CSO/CBO and government
health sector.
§ Case examples highlight that building collaboration with CSO/CBO can result in very
positive outcomes for the Judiciary and its officers (e.g. Case-User Committees).
§ Joint colloquium between the Judiciary and CSO/CBO (e.g. Justice Actors Conference).
§ CSO/CBO can be your best friends and biggest helpers.
POLICE REFORM.
The importance of police operational, educational and cultural reform.

§ Development of harm reduction and HIV prevention curriculum (role of police).
§ Without police reform progress difficult.
§ Police need to feel supported in their reform efforts.
COMMUNICATION.
The Importance of formal and informal communication channels between police and civil
society and HIV programmes.
§ Provincial and local task forces.
§ Key actors from both sectors knowing each other.
ADDRESSING STRUCTURAL DRIVERS.
Addressing Structural Drivers.

§ Violence, intimidation, biases and corruption.
§ Policy and practices, MOUs, SOPs.
§ Scaled up programmes.
98

M O D U L E 9.
§ Working with CSO/CBO and Government to make sure programme design specifically
prioritises a Law Enforcement Advocacy and Partnership plan.
ON-GOING MONITORING AND EVALUATION.
The need for monitoring and evaluation of the enabling environment.

§ What are the variables of interest?
§ Decrease incidence of police harassment.
§ Better community engagement.
§ Better understanding of the needs of key pops.
§ Increase in public health service uptake.
§ Crime reduction.
OTHER CONSIDERATIONS.
§ Shared vision, mission and objectives stated in writing endorsed by all groups.
§ Terms of Reference for how people work together.
§ Regular meetings and communication between police, key populations, CSO/CBO service
providers and the health department.
THE FOLLOWING APPROACHES CAN HELP BRING LAW ENFORCEMENT EFFORTS

IN LINE WITH PUBLIC HEALTH GOALS.
FOSTER CROSS-SECTORIAL COLLABORATION AND PARTNERSHIPS BETWEEN LAW

ENFORCEMENT AND THE PUBLIC HEALTH-CARE SECTOR
The collaboration envisaged between law enforcement authorities, social services, and health-
care providers should:
§ Coalesce their efforts, by focusing them upon addressing the root causes of their community
problems, whilst in tandem identifying the most effective actions to address these problems.
§ Allow them the opportunity for a concerted effort to link both the reduction in drug-related
crimes and the stemming of supply of illegal drugs, with an increased access to effective drug
treatment.
§ Advocates the provision of health-focused trainings for Judicial Officers.
§ Utilize the partnership to empower PWID by enabling their access to affordable health-care
and social service.
§ Prove to be an effective framework that incorporate harm-reduction into drug policing, and
which contributes to an integrated problem-focused response. That framework ought to
provide broad-based, and multi-faceted approaches, in which Sentencing is not the only
component.
§ Avoid a strict law enforcement strategy that simple drive the PWID ‘underground’, or forces
them to relocate, out-of-the-reach of intervention centers, thus generating negative public
health outcomes
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M O D U L E 9.
ENCOURAGE POLICE TO USE DISCRETION WHEN CONFRONTING POTENTIAL PWID.
Judicial Officers may opt to warn and refer PWID to appropriate health–care and social services;
as alternatives to arresting PWID or confiscating injecting equipment.
§ Aggressive Sentencing does not always correlate to a reduction in the number of PWID
per capita.
§ Punitive Sentencing policies (such as a concerted effort to increased arrests of PWIDs)
has been connected with increasing proportion of PWID infected with HIV106.
LAW ENFORCEMENT AUTHORITIES SHOULD ADOPT THE PROVISION OF HARM-REDUCTION

TRAINING FOR THEIR OFFICERS AND INCORPORATE HARM-REDUCTION INTO THEIR LAW
ENFORCEMENT STRATEGIES.
Harm-Reduction and Disease Prevention is becoming an Integral Component of Progressive and

comprehensive national drug strategies undertaken by Law Enforcement Authorities, which may
include:
§ The adoption of policies that emphasis treatment of PWID at every stage of the criminal
justice process (i.e. at the point of arrest, the Judicial Officers ensure that the PWID
obtain an appropriate diagnosis and -if necessary-referral. If the arrest results in
incarceration, the PWID should have access to enhanced treatment options).
§ Regular training of Judicial Officers should include Harm-Reduction Training as vital
part of the syllabus, as a means of inculcating amongst the officers, a willingness to make
decisions that reduce health risks for PWIDs. Whilst broadening their understanding of
the value of harm-reduction in the Judicial context107.
ADOPT DRUG LAWS THAT REDUCE RISKS TO PUBLIC HEALTH AND SAFETY
Some of the policies that have been surveyed as contributing to the decrease in the spread of HIV
amongst PWID include:
§ The deregulation of the possession of syringes and needles (to allow needle-swapping
schemes to proliferate).
§ Minimize regulatory barriers to use of methadone (that helps counteract opiate addiction)
and other medications that treat drug addiction, as well as the numerous other harms
associated with injection drug use (such as Buprenorphine Treatment)108. Because these
medications improve the functional abilities of PWIDs, they are more likely to be in
gainfully employed, and thus refrain from illegal activities.
§ Legislative, regulatory reforms to encourage proactive intervention that address the needs
of PWIDs. (Such as provision of sterile syringes. Needle-exchange programs can
fundamentally reduce the spread of HIV and other dangerous infectious diseases.
Because these programs target existing PWIDs, they need not be seen as encouraging or

106
Samuel Friedman, Hannah Cooper, Barbara Tempalski et al. “Relationships of Deterrence and Law Enforcement
to Drug-Related Harms Among Injectors in U.S. Metropolitan Areas,” AIDS 20 no. 1 (2006): p. 93.
107
Richard Midford, John Acres, Simon Lenton, et al., “Cops, Drugs and the Community: Establishing Consultative
Harm Reduction Structures in Two Western Australian Locations,” International Journal of Drug Policy no. 4
(1999): p. 488.
108
Robert Heimer, Sarah Bray, Scott Burris, et al., “Structural Interventions to Improve Opiate Maintenance,”
International Journal of Drug Policy 13 (2002): p. 103.
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M O D U L E 9.
increasing drug use, and may –when coupled with other interventions- in fact to reduce
illegal drug use). Functional and recovering PWID are be cost-effective for society,
because they are less of a drain on the stretched funding of law enforcement authorities
and health-care services; (Methadone and Buprenorphine Treatment is considerably
less expensive than incarcerating PWID or treating medical conditions associated with
unsafe drug use)109.

109
WHO, UNODC, and UNAIDS, “Substitution Maintenance Therapy in the Management of Opioid Dependence
and HIV/AIDS Prevention,” (Geneva: World Health Organization, 2004).
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REFERENCE MATERIAL:
1. Training Manual for Law Enforcement on HIV Service Provision for People Who Inject
Drugs, [United Nations Office on Drugs and Crime (UNODC)].
2. Kenya HIV County Profile, 2016, [produced by the National AIDS Control Council
(NACC) and the National AIDS and STI Control Programme (NASCOP)].
3. United Nations Office on Drugs and Crime. World Drug Report 2014.
4. Technical Guide for countries to set targets for universal access to HIV prevention,
treatment and care for injecting drug users, 2013, [World Health Organization (WHO),
United Nations Office on Drugs and Crime (UNODC) & Joint United Nations
Programme on HIV and AIDS (UNAIDS)].
5. UNAIDS Data 2017, [Joint United Nations Programme on HIV and AIDS (UNAIDS)].
6. “Bail and Bond Policy Guidelines” [The National Council on the Administration of
Justice (NCAJ)].
7. “Sentencing Policy Guidelines” [Kenyan Judicial Taskforce on Sentencing].
A NNEX 2:
GUIDELINES FOR HANDLING AND DISPOSAL OF NEEDLES AND
SYRINGES.
KEY TERM WHAT TO DO

1. Assess. Assess the environment where the needle and syringe is located. Take
note of any other needles or injecting equipment nearby that could injure
you.
2. Needle and If feasible, ask the local needle syringe programme to collect and dispose
Syringe of any injecting equipment. They are usually very helpful once a good
Programme. relationship has been established with them.
3. Shoes. Wear shoes.
4. Disposal Obtain a suitable disposal container. If you do not have a proper disposal
container. container manufactured in a factory then you will have to use some other
container.
5. Move the Take the disposal container to the needle and syringe. Do not pick up a
disposal needle and syringe and carry it to the disposal container. You should
container. limit the amount of movement you make with the needle and syringe.
The longer you carry a needle and syringe the more likely it is that you
will have a needle-stick injury because: .. All of us from time to time
stumble or trip over something. .. Someone could bump into you. .. A
loud noise such as a car backfiring could make you flinch or make you
lose concentration.
6. Stable surface. Place the container on the ground and place it where it will not move.
You could hold it still by placing it under your shoe. The disposal
container should be on a stable surface on the ground and not held by
your hand when placing the needle and syringe in it.
7. Use Universal That is, use a barrier. Wear gloves for protection. If you do not have a
Precautions - proper pair of latex gloves use a plastic bag. Plastic gloves are acceptable
use a barrier. or a plastic bag may have to be used when in the field. A supply of
plastic gloves and plastic bags should be kept in Police Officers’ cars and
other Police Officers’ vehicles. Thick gloves that can reduce your
dexterity should be avoided. Ensure that any open cut or wound is
adequately covered with a water proof cover.
8. Do not re-cap. Do not try to place the cap back on the needle. Never attempt to recap a
needle and syringe, even if the cap is also discarded. Treat the cap as
carefully as any other item of injecting equipment
9. Pick it up by the Do not pick up the needle and syringe by the needle. Pick it up by the
barrel. barrel.
A N N E X 2.
KEY TERM WHAT TO DO

10. Use tongs -if If appropriate use tongs. If you are going to use tongs, practice with them
appropriate. first. Many tongs that are used by cleaners and rubbish collectors have
been specifically designed to pick up particular items of rubbish such as
paper and similar items. They have not been designed to pick up
something small and smooth like a needle and syringe. On some
occasions with tongs, the needle and syringe can slip and be propelled
some distance away. In some cases, Officers have used pieces of split
bamboo. Tongs may also assist you to remove the injecting equipment if
it is difficult to access.
11. Separate needles If there is more than one needle and syringe, it may be useful to separate
and syringes. them using an appropriate instrument. Do this carefully. Each item can
then be picked up separately.
12. Point it away Always make sure that the needle is pointed away from you and
from you. everyone else. It is preferable to point the needle towards the ground.
13. Needle end first. Place the needle end of the needle and syringe into the disposal container
first.
14. Do not touch. Do not place your hand on the container where it could be stabbed as you
put the needle and syringe into the container.
15. Swabs. Other material such as swabs and bandages can be placed in a plastic bag
and the end of the plastic bag can be tied. These items should also be
treated as bio-hazardous.
16. Lid. After the needle and syringe has been placed inside the container, put a
lid on the container. This can present a problem as sometimes the
container does not have a lid. If the container is a plastic bottle and you
do not have the lid, you could burn the top of the bottle so that it closes
over.
17. Do not over-fill. Make sure that the container is of adequate size and is not overfilled.
Overfilling the container can increase the risk of injury.
18. Dispose. Dispose of the container appropriately so that someone such as a child
will not find it and play with it.
19. Dispose of If using rubber gloves, or something similar, remove them and place
gloves etc. them in a plastic bag. Tie the bag closed and place it in a rubbish bin
where someone will not take it out and open it up.
20. Wash hands. As soon as is practicable, wash your hands thoroughly using soap and
water as the local conditions allow.
21. Contact the Contact your local needle and syringe programme, or local disposal site.
local Needle and Sometimes, arrangements can be made with hospitals and other health
Syringe facilities that have proper systems and processes for disposing of bio-
Programme. hazardous material such as high intensity incinerators.
INFECTION CONTROL PROCEDURES.
The guidelines in this Training Manual do not replace the guidelines that are provided by your
government, employer, and other relevant organisations in your country. They are examples only
but are based on international good practice that all law enforcement agencies should aspire to
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A N N E X 2.
replicate. You should follow the guidelines that are provided by the relevant agencies in your
country. Post-Exposure Prophylaxis (PEP) must be available as part of an occupational and non-
occupation health and safety approach to HIV prevention within every Police agency.
ASSUMPTION OF RISK.
The basis of good infection control is to assume that everyone could have an infection which can
be passed on to you.
§ You should never assume that just because a person looks healthy or attractive they could not
have an infection that could be passed onto you.
DEALING WITH SPILLS OF BODY FLUIDS.
Examples of body fluids include blood, saliva, semen, urine and faeces. You should always:
1. Isolate the area.
2. Wear gloves, a plastic apron and eye protection, such as goggles.
3. Soak up the fluid with disposable paper towels, or cover the spill with a granular chlorine
releasing agent for a minimum of 10 minutes. Scoop up granules and waste using a piece of
cardboard (or similar), place in a plastic bag and dispose of appropriately.
4. Mix 1 part bleach to 10 parts water and apply to the area for 10 minutes.
5. Wash with hot water and detergent.
6. Dry the area.
7. Dispose of paper towels and gloves appropriately.
8. Wash your hands.
9. Rinse any contaminated clothing in cold running water, soak in bleach solution for half an
hour, then wash separately from other clothing or linen with hot water and detergent
UNIVERSAL PRECAUTIONS.
Universal Precautions is the international term used by the health sector to describe the set of
measures used to safely handle body fluids. The main principles of universal precautions are:
1. Presume that the blood and body fluids of all persons could potentially be a source of
infection, while additional precautions may be required in areas of high risk.
2. Washing hands.
3. Care of intact skin.
4. Protection of damaged skin.
5. Proper handling and disposal of sharp objects.
6. Good hygiene practices.
7. Careful handling of all blood and other body fluids.
8. Personal protection must be provided and available in all areas where blood and body fluids
may come into contact with personnel. Gloves, waterproof aprons or gowns, and masks or
protective eyewear must be worn where appropriate.
9. Workers with cuts or abrasions on exposed body parts must cover these with waterproof
dressings.
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A N N E X 2.
EXPOSURE TO BODY FLUIDS.
If you come in contact with blood or other body fluids, you should:
1. Flush the area with running water.
2. Wash the area with plenty of warm water and soap.
3. Report the incident to the appropriate staff member.
4. Record the incident via an appropriate reporting procedure.
5. Seek medical advice
Employers (and occupational health and safety representatives if they exist) should investigate
all incidents involving contact with blood or other body fluids, and take action to prevent a
similar incident from happening again.
WHAT TO DO IF YOU HAVE A NEEDLE-STICK INJURY.
Needle-stick injuries are wounds caused by needles that puncture the skin. It usually refers to
only those cases where the skin is punctured by a ‘used’ needle.
Immediately after the injury, suggested steps include:

1. Wash the wound with soap and water.
2. DO NOT force or encourage the wound to bleed
3. DO NOT lick or suck the wound
4. If soap and water aren't available, use alcohol-based hand rubs or solutions.
5. If you are at work, notify your supervisor or other appropriate officer. You may need to fill
out a special form.
6. Go straight to your doctor, or to the nearest hospital emergency department.
Ways of reducing the risk of needle-stick injuries include:

1. Health workers who may come in contact with blood or other body fluids should receive
hepatitis B vaccinations.
2. Follow all safety procedures in the workplace.
3. Regularly undertake safety refresher courses.
4. Minimise your use of needles.
5. Remember that latex gloves don't protect you against needle-stick injuries.
6. Don't bend or snap used needles.
7. Never re-cap a used needle.
8. Place used needles into an approved sharps disposable container – they must be rigid,
puncture resistant, unbreakable, leak resistant with a tightly sealed lid and labelled "Sharps
Waste" or with the International Biohazard label. No glass jars, soda bottles, or milk jugs are
accepted since these containers are not puncture proof.
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A NNEX 3:
C A S E -S T U D Y A N D P R A C T I C A L S E S S IO N S .
NATIONAL SCENARIO.
Following a grueling electioneering period, a new government swept into office in Kenya, on the
promise of a transformational development agenda. The Presidency quickly moved to constitute
a new cabinet that would discharge the ruling party’s ambitious agenda. However, the
government faced the unfortunate reality that Kenya’s national revenue collection had stagnated
for several years, with a concurrent ballooning in recurrent expenditure, leaving little in the
coffers for the kind of development expenditure needed to fulfill the electoral pledges. The
Government needed to get its populist reform programmes off the ground, and attract significant
Foreign Direct Investment (FDI) to finance the country’s development agenda; despite the
numerous adverse economic assessments.
The Government mandarins advocated a handful of drastic short-term measures that were
projected to spur growth and reverse the economic down-turn. Whilst most of these strategies
could be adequately championed by the Finance Ministry; there were areas in which other
Ministries could assist. The Tourism Ministry was called upon to drastically increase tourist
numbers; (particularly in the Coast). To do this, the Government would have to urgently address
the adverse security assessments of the Coastal region. The Cabinet unanimously endorsed the
adoption of a robust security strategy that would –hopefully reverse the negative security
perception of the Coastal region. So that Kenya’s Coast could aggressively be sold abroad, as the
“Purest Beaches and Safest Coast in Africa, and indeed the World”.
INTERIOR MINISTRY.
The Cabinet Secretary (CS) in the Interior Ministry was -pursuant to a Cabinet Resolution-
charged by the President and Deputy President to undertaken a Rapid Results Initiative that
sought to conduct a region-wide Security Operations that would eradicate all criminal elements
in the region. The Security Operations would be run under the tag-line, “Clean-up the Coast”.
The Interior Ministry adopted several individual initiatives; one of which was the blanket ban of
the sale of illicit alcohol and drugs. The Ministry sought to mobilise its departments and
surrogate agents to crackdown on the sale of illicit alcohol and drugs. The CS instructed the
Principal Secretary (PS) to spearhead this Anti-Alcohol and Anti-Drug Campaign slated to
commence in the coast region over the Easter Holiday Weekend.
The PS sort to co-opt as large a number of uniformed law enforcement officers as possible. The
CS chaired a taskforce that incorporated:
§ The Police Inspector-General (IG), under whose command the Regular Police Service
and the Administration Police Service fell. Both services would be needed to form the
back-bone of the Security Operations.
A N N E X 3.
§ The Coastal Region Commissioner, all County Commissioners in the Coast region under
whose ambit certain security functions fall. They all had significant administrative roles
in the Security Operations.
§ The Commissioner-General of Prisons, under whose command the Prison Service fell.
Prison Wardens would be needed to beef up the numbers during large-scale Security
Operations, especially in the slum areas.
§ The Director-General of the Kenya Wildlife Service, under whose command the Kenya
Wildlife Service fell. Game Rangers would be needed to:
§ Assist during Operations in areas that have been gazetted as wildlife conservation
areas.
§ Beef up the numbers during large-scale Security Operations, especially in the
slum areas.
§ The Director of the Kenya Forest Service, under whose command the Kenya Forest
Service fell. Forest Rangers would be needed to:
§ Assist during Operations in areas that have been gazetted as forest conservation
areas.
§ Beef up the numbers during large-scale Security Operations, especially in the
slum areas.
§ The CS also formally liaised with all the Governors in the Coastal Counties to have the
County Inspectorate and Enforcement Officers incorporated into the raid teams.
§ The ruling party had swept all gubernatorial seats in the Coastal region; thus the
national government enjoyed a free-hand in adopting robust security strategies in
all the Coastal Counties.
§ The KDF Command was approached to lend service men to the teams that planned raids
in counties that have suffered regular skirmishes with insurgent groups and terror
organisations operating in the Coastal Region.
HEALTH MINISTRY.
The Cabinet Secretary (CS) in the Health Ministry was -pursuant to a Cabinet Resolution-
charged by the President and Deputy President to undertaken holistic mass-mobilisation
campaign in all the Coastal Counties following the alarming rise in the occurrence of infectious
diseases. There were several International Conferences scheduled to be held in Kenya, during
the latter half of the year, including the Africa Harm Reduction Conference.
The CS instructed the Principal Secretary (PS) to spearhead programmes that specifically
targeted at the infectious diseases pandemic. A taskforce that reports to the PS, recommended the
Ministry boost its current partnership with all the Coastal county governments -to enhance their
support for existing programmes that address Tuberculosis, HIV and other Blood-Borne Viruses
(BBVs) such as HCV and HBV.
The Ministry further sought to boost its re-engagement with its partner Civil Society
Organisations (CSO) and Community-Based Organisations (CBO), and (in consultation with
the relevant County Executive Committee (CEC) Officers in-charge of Health) identify
programmes that the Ministry could re-energise to showcase the government’s efforts at halting
the drug scourge in Kenya.
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A N N E X 3.
There are several individual initiatives proposed by technocrats in the Health Ministry. The
Ministry selected 2 Harm Reduction Programmes as most suitable for the purpose of
demonstration, at the up-coming Harm Reduction Conference. The 2 Harm Reduction
Programmes chosen were: the Needle Syringe Programmes (NSP), and the Medically Assisted
Therapy (MAT) –widely referred to in the West as the Opiate/Opioid Substitution Therapy
(OST).
The Ministry targeted the Easter Holiday Weekend as a most suitable time for the Health Mass-
Mobilisation Campaign, throughout the Coastal region, as a sizeable portion of the Coastal
population would be accessible within the various residential districts and at the beaches, during
the day-time; (the upcountry visitors to the Coast –for the long Easter Holiday Weekend–, could
equally be targeted). They CS also formally liaised with all the Governors in the Coastal counties
to obtain their political and administrative support for the Health Mass-Mobilisation Campaign.
The various County Departments for Health were co-opted, to provide County Inspectorate and
Enforcement Officer to aid in the Health Mass-Mobilisation Campaign.
LOCAL SCENARIO
THE MINISTRY OF INTERIOR’S STATEMENT CONCERNING THE ANTI-ALCOHOL AND ANTI-

DRUG CAMPAIGN:
In summary, the Statement indicates that various state and county agencies conducted raid on
Alcohol and Drug Dens over a five-day period that span across the Easter Holiday Weekend,
beginning late Friday afternoon and running through till late Monday afternoon. The various raid
teams systematically targeted already mapped areas suspected of hosting Alcohol and Drug
Dens. The teams progressive visited all the different informal settlements in the towns and urban
centres right across the Coast region, spanning several Counties.
They also raided various known Alcohol and Drug Dens in the main city and town business
district. They shut-down unlicensed pubs and revoked licenses of other that were under suspicion
of being Alcohol and Drug Dens.
The Statement officially withheld all information on the actual agencies and numbers contributed
by each agency. The Ministry Statement stated that all strategic and tactical information on the
manner and conduct of the raids would be withheld on ‘national security’ grounds. Thus the
Ministry would not issue information that could potentially compromise those or any other
subsequent Operations. The Ministry similarly, would not issue information that could adversely
affect the effective prosecution of the nearly 600 Suspects arrested in the raids, and currently
awaiting processing for prosecution in the days following the long weekend.
The apprehended persons were remanded in several Police Stations across the Coast region. The
large number of apprehended persons necessitated the transfer of several of them to actual
Prisons- across the Coast region. All ages, gender and socio-economic backgrounds are
represented in the pool of Suspects. The raids rounded up almost all men and women found in
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A N N E X 3.
the vicinity of the Alcohol and Drug Dens. The persons rounded up in the raids included mothers
with children, and minors.
The Statement ended by praising the efficiency, diligence and professionalism of all Uniformed
Law Enforcement Officers involved in the Operations. There was also a pledge to re-commence
a further Mop-Up Operations, once there was a proper interim assessment of the Easter Holiday
Weekend Operations.
THE MINISTRY OF HEALTH’S STATEMENT CONCERNING THE HEALTH MASS-MOBILISATION

CAMPAIGN:
A summary of the Statement issued by the Health Ministry emphasised the coordinated efforts of
the various state and county departments and agencies, in launching the Ministry’s Health Mass-
Mobilisation Campaign. The Statement further acknowledged the invaluable role played by
International donor governments and agencies in the provision of technical and financial support
to the Ministerial Policies and Programmes, and particularly the Campaign’s 2 Harm Reduction
Programmes in the Coastal counties that were scheduled for the Easter Holiday Weekend. The
Statement lauded the collaborative partnership enjoyed with their local partners; the Civil Society
Organisations (CSO) and Community-Based Organisations (CBO) whose work largely focuses
upon HIV/AIDS.
The Campaign’s received wide publicisation in the Coastal region, and well prior to the Easter
Holiday Weekend; Preparatory Events were undertaken throughout the Coastal region, to
sensitise the targeted KP (and particularly PWID/PWUD). The CSO and CBO were instrumental
in the sensitization and prepping of KP for the Campaign launch on the Morning of the
Thursday, before Easter.
The Campaign launch itself went on well, and was a highly publicised, Ministry-led event, with
the significant presence of all major policy and programmatic player. The Ministry had even
commissioned a couple of documentary teams to create a documentary of the Campaign for
airing during the Africa Harm Reduction Conference. The documentary teams had been
embedded with the various CSO/CBO during the Preparatory Events, and were to continue with
them throughout the Easter Holiday Weekend Campaign.
The composition of the Campaign teams varied based on where it was stationed, but the optimal
composition, comprised of public servants from the state and county governments (including
Uniformed Health-Care Professionals and Law Enforcement Officers), representative from the
NGO-sector (both local and international), plus charitable, volunteer members of the general
public.
Thus, that Thursday, as the first actual day of the Campaign was relatively successfully in its
outreach to KP in Drug Dens, throughout the Coastal region. The peaceful and productive nature
of the Campaign –as documented by the documentary teams – was well received and
commended by local and international stakeholders.
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A N N E X 3.
The raids on Alcohol and Drug Dens on Friday –the second day of the Easter Holiday Weekend
Campaign– was very disruptive to the Campaign. On Friday night, at emergency meeting was
held at Ministerial Level that temporary called off the Campaign, pending the outcome of Inter-
Ministerial Level meeting on Saturday morning. The Saturday morning meeting was unable to
call a halt to the raid, and thus the Campaign was called off indefinitely.
The Statement ended by praising the efficiency, diligence and professionalism of all participating
stakeholders involved in the Campaign. There was also a pledge to re-commence the Campaign,
once there was a proper interim assessment of the Easter Holiday Weekend Campaign.
THE MASS-MEDIA REPORTING ON THE ANTI-ALCOHOL AND ANTI-DRUG CAMPAIGN:
In summary, the general consensus across the numerous reports filed by Journalists reporting on
the events surrounding the Anti-Alcohol and Anti-Drug Campaign, and the subsequent stories
published on the same; is as detailed below:
The Operations were plagued with incidents of overt and unwarranted acts of violence –by both
sides. The multiple Law Enforcement Agencies and Officers involved were understandably intent
on making a show of force. To which extent, the predictable use of force became inevitable.
There were thus many cases of actual injury to members of the Law Enforcement Agencies, but
the significantly larger number of injured were members of the public, caught up in the ensuing
the melee caused by the Operation. As of the first Tuesday after the Easter Holiday Weekend,
there had been unconfirmed reports of 7 dead, allegedly as a result of the violence experienced
during the Operation.
The raids were conducted in a ruthless manner, with all resistance arousing a violent response.
There was significant property damage in the near-door-to-door campaign in different informal
settlements in the towns and urban centres right across the Coast region that spans several
counties.
The Alcohol Processing Equipment found in the illegal drinking joints was largely destroyed on
the spot, with only a few samples retained for purposes of future prosecution of the illegal
alcohol brewers.
The Drug Processing Equipment found in the Drug Dens was largely confiscated with certain
equipment –deemed surplus to what would be needed by the prosecution– destroyed on the spot.
THE MASS-MEDIA REPORTING ON THE HEALTH OUTREACH-DRIVE:
A summary of the Journalistic reporting on the events surrounding the Easter Holiday Weekend
Campaign; is as detailed below:
The Ministry had very proactively sought to involve the media in the Easter Holiday Weekend
Campaign and had even invited media houses to assign journalists to be embedded with their
prepping teams, and even their actual Campaign teams. The Ministry already had embedded
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A N N E X 3.
documentary teams, thus additional journalist accompanying the Campaign teams, would not be
a hinderance.
The Preparatory Events and the first-day of the Campaign were –as is well agreed– peaceful and
productive. There were –of course– the anticipated bureaucratic hiccups that plague government
programmes; but even these were remarkably few given the size and scale of the Campaign.
The raids completely disrupted any semblance of order within the Campaign. The raid teams
totally ignored the presence of Campaign teams at the Drug Dens, and their pleas to the raid
teams for a halt on the raid till the 2 Ministries could agree on whether the Health Ministry’s
Campaign or the Interior Ministry’s Operation took precedence.
The act of ignoring the Campaign teams by the raid teams, was one of the more benign responses
seen when the raid teams confronted the Campaign teams at the Drug Dens. An atmosphere of
latent violence pervaded some other area, especially the different informal settlements, where a
near-door-to-door campaign was undertaken by the raiders. Raids –on Drug Dens in these
places– saw actually violence meted out on all persons present therein. In some case, the show of
force was repulsed, occasioning injury on both sides.
There many cases of actual injury to members of the raiding teams, as well as to members of the
Campaign teams, caught up in the ensuing the melee caused by the Operation. As of the first
Tuesday after the Easter Holiday Weekend Campaign; it was reported that 55 members of
Campaign team were injured in one way or another during the raid. Of that larger number, 10
team members were critical injured, with 3 of them still unconscious in ICU.
Aside from the physical injury to embedded members of the documentary teams; there was
significant property damage during the raid, with 4 of the documentary teams suffering a total
loss of all their electronic equipment. Some of the other teams had to write-off as irreparable
much of their camera equipment. With the loss of the digital cameras, there was also the
irretrievable loss of recorded video footage and photographs; which adversely affects the
documentary teams’ ability of the a documentary
THE JOINT-STATEMENT BY PARTNER CIVIL SOCIETY ORGANISATIONS (CSO) AND

COMMUNITY-BASED ORGANISATIONS (CBO) CONCERNING THE ANTI-ALCOHOL & ANTI-
DRUG CAMPAIGN AND HEALTH MASS-MOBILISATION CAMPAIGN:
A summary of the CSO & CBO Statement on the events surrounding the Easter Holiday
Weekend Campaigns; is as detailed below:
The CSO & CBO were very proactively involved in the Easter Holiday Weekend Campaign, as
embedded members of the prepping teams, and the eventual Campaign teams. The Preparatory
Events and the first-day of the Campaign were peaceful and productive.
The raids were equivalent to state-sanctioned hooliganism. They completely disrupted the
medical campaign that attempted to expand public awareness about Harm Reduction
Programmes, with a specific focus upon Needle Syringe Programmes (NSP), and the Medically
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A N N E X 3.
Assisted Therapy (MAT). Both subsidised programmes are expensive to implement and
complicated to effectively coordinate. The losses are significance, especially following the
destruction of the CSO/CBO’s medical equipment and other property, during the raids.
It is particularly difficult to get buy-in and acceptable by PWID/PWUD –under normal

circumstance– and it would be infinitely harder, after the raid. The raid was a near-irreversible
set-back to the CSO/CBO, in their attempts to institutionalise Harm Reduction Programmes, in
the HIV fight in the Coastal region.
The violence meted out on all persons present in or around Drug Dens, occasioned injuries on
CSO/CBO staff and volunteer; who were present in the vicinity of the Drugs Den, to sensitise
the people there on Harm Reduction Programmes, and particularly the availability of Needle
Syringe Programmes (NSP), and the Medically Assisted Therapy (MAT) for PWID/PWUD. The
CSO/CBO have forced to make unbudgeted provisioning for personnel medical care and
recovery; plus address the welfare needs of the dependent of the various hospitalized personnel.
Several CSO/CBO staff and volunteers –of both genders– were apprehended during the raid and
locked-up with the other suspects, awaiting to be charged and prosecuted on the first court
working day, after the Easter Holidays. The CSO/CBO were having to traverse the various police
stations (and prisons), seeking out their staff and volunteers, to afford them legal representation.
They were also at those holding locations, to afford PWID/PWUD similar legal representation,
or other support. The CSO/CBO were expending the over-extended resources fight the
prosecution of individuals –some of whose welfare was better served by, engaging in efforts to
address their over-reliance on drugs.
CLASSES OF APPREHENDED PERSONS.
MALE SUSPECT.
1. Adult Persons:
1.1. Drug Den Owners:
Several males were apprehended during the raids and identified as known or presumed Drug Den
Owners:
1.1.1. The majority of the known or presumed Drug Den Owners were apprehended
within their known or presumed Drug Den.
1.1.2. The minority of the known or presumed Drug Den Owners were not apprehended
within their known or presumed Drug Den locations, but at various other places.
1.2. Drug Peddlers:

Several males were apprehended during the raids and identified as known or presumed Drug
Peddlers:
1.2.1. The majority of the known or presumed Drug Peddlers were apprehended within
their known or presumed Drug Den locations.
1.2.2. The minority of the known or presumed Drug Peddlers were not apprehended
1.3. Drug Users:
113

A N N E X 3.
Users:
1.3.1. The majority of the known or presumed Drug Users were apprehended within
1.3.2. The minority of the known or presumed Drug Users were not apprehended within
their known or presumed Drug Den locations, but at various other places.
1.4. Innocent Passers-by:

Several males were apprehended during the raids, and ‘labelled’ Drug Users:
1.4.1. The majority of the ‘labelled’ Drug Users were apprehended within proximity to
known or presumed Drug Den locations.
§ The CSO/CBO, and Documentaries teams.
1.4.2. The minority of the ‘labelled’ Drug Users were apprehended within proximity to
2. Minor:
2.1. Drug Peddlers:
Several male minors were apprehended during the raids and identified as known or presumed
Drug Peddlers:
2.2. Drug Users:

Users:

Several male minors were apprehended during the raids, and ‘labelled’ Drug Users:
§ Child of PWID/PWUD (both infant and pre-teenagers).
FEMALE SUSPECT.
3. Adult Persons:
3.1. Drug Den Owners:
Several females were apprehended during the raids and identified as known or presumed Drug
Den Owners:
114

A N N E X 3.
3.1.1. The majority of the known or presumed Drug Den Owners were apprehended
within their known or presumed Drug Den.
3.1.2. The minority of the known or presumed Drug Den Owners were not apprehended
3.2. Drug Peddlers:

Peddlers:
3.3. Drug Users:

Users:

Several females were apprehended during the raids, and ‘labelled’ Drug Users:
§ The CSO/CBO, and Documentaries teams.
4. Minor:
4.1. Drug Peddlers:
Several female minors were apprehended during the raids and identified as known Drug
Peddlers:
4.1.1. The majority of the known Drug Peddlers were apprehended within their known
Drug Den locations.
4.1.2. The minority of the known Drug Peddlers were not apprehended within their
known Drug Den locations, but at various other places.
4.2. Drug Users:

Several female minors were apprehended during the raids and identified as known or presumed
Drug Users:
115

A N N E X 3.

Several female minors were apprehended during the raids, and ‘labelled’ Drug Users:
§ Child of PWID/PWUD (both infant and pre-teenagers).
CASE-STUDY APPROACH GUIDE FOR INSTRUCTORS.
To address specific individual issues, the instructor may opt to:

§ Isolate any particular cadre of the amorphously-constituted, raid team (be they, the
commanding-officer cadres or their juniors) for specific attention. The instructor may
require the trainees to evaluate that cadre (or individuals within the cadre) –with respect
to their legal and/or ethical roles, responsibility, liability, or culpability… etc.
§ Isolate any particular segment of the classes of apprehended persons for specific
attention. The instructor may require the trainees to evaluate that segment (or individuals
within the segment) –with respect to their legal and/or ethical roles, responsibility,
liability, or culpability… etc.
GENERAL QUESTIONS.
To address specific individual issues, the instructor may opt to design his/her own question as is
appropriate based on the Case-study, and the trainees’ needs
SAMPLE QUESTIONS FOR TRAINEES:

§ Is it legally possible to co-opt all the various law enforcement agency and their officer to
participate in the raids?
§ What is the legal process for co-opting all the various teams that took place in the raids?
§ What action might you take in relation to the any class of the apprehended persons?
§ What biases and attitudes might shape your interaction with them?
§ Why might they have a mistrust of the trainees and the trainees’ organisation?
QUESTIONS BASED UPON THE MODULE’S OBJECTIVES.
MODULE 1A:
§ Is there a demonstrable understanding amongst the trainees about what practices accord
with the recommended manner of preventing, treating, caring and supporting people
vulnerable to or people living with HIV and AIDS?
MODULE 1B:
§ Is there a demonstrable understanding amongst the trainees about own professional and
personal risk?
116

A N N E X 3.
§ Is there a demonstrably increased knowledge and understanding amongst the trainees

about Kenya’s HIV epidemic?
about political and programmatic contexts of Kenya’s national efforts to fight its HIV
epidemic?
MODULE 2A:

about the applicable constitutional provisions relating to the Right to Health?
§ Is there a demonstrably empathy for PWID amongst the trainees?
§ Is there a demonstrably empathy for the PWID’s quest to access the health-care services
they are entitled to as a right?
MODULE 2B:
§ Are the trainees conversant with the applicable mandate of different stakeholders in the
health sector (especially those who play a role in enabling PWID access their Right to
Health)?
MODULE 2C:

about the current laws and policies relating to drugs, drug use and drug control?
§ Is there a demonstrably ability to engage in consensus-building, on ways of applying
relevant policies for compliance with constitutional provisions on the Right to Health?
MODULE 3:

about infection control procedures?
about HIV, hepatitis, and tuberculosis as possible occupational hazards?
MODULE 4A:
§ Do the trainees sufficiently understand their constitutional responsibilities, in facilitating

the common citizen’s enjoyment their Human Rights and Fundamental Freedoms?
MODULE 4B:
§ Do the trainees sufficiently understand their role in supporting Public Health Policies and
Practices, especially as it extends to PWID?
117

A N N E X 3.
MODULE 5:

about the Concept of Risk and Vulnerability to HIV Infection?
about the fundamental Concepts of Human Rights-Based Policing Models?
MODULE 6:
§ Is there a demonstrably increased awareness and understanding amongst the trainees

about different Types of Drugs?
about Mode/Manner of Administering the Drugs?
about Prevalent Levels and Patterns of Use of the Drugs?
about the Effects on the Drug User (and upon persons connected to the Drug User)?
about the Licit and Illicit Drugs in Use in Kenya?
about how Drug Use Impacts on HIV Risk?
about the Concept of Harm Reduction (as an approach to HIV and BBV Prevention)?
§ Is there a demonstrably ability amongst the trainees in identifying the Benefits of Harm
Reduction Approaches in Crime Prevention and Public Order?
§ Is there a demonstrably awareness and understanding amongst the trainees about how
Law Enforcement Practices influence the Success or Failure of Harm Reduction
Interventions?
MODULE 7:
§ Is there a demonstrably awareness and understanding amongst the trainees about the
relationship between components of the Comprehensive Package and HIV prevention,
treatment and care policies?
§ Is there a demonstrably awareness and understanding amongst the trainees about the
benefits of the Comprehensive Package for policing, and for PWID?
§ Is there a demonstrably awareness and understanding amongst the trainees that their
behaviour at incidents where there has been a fatality will influence how other relate to
them in similar future events, where their assistance might ordinarily be required?
MODULE 8:
§ Is there a demonstrably awareness and understanding amongst the trainees about the Use
of Discretion and Ethical Frameworks that underpin Ethical Dilemma?
§ Is there a demonstrably understanding amongst the trainees about what diversion from
criminal justice prosecution means?
118

A N N E X 3.
§ Is there a demonstrably awareness amongst the trainees about the range of programmes
which can divert PWID from criminal prosecution?
§ Is there a demonstrably understanding and general overview amongst the trainees about
the Benefits and Evidence supporting Drug Diversion Programmes?
MODULE 9:
§ Is there a demonstrably awareness and understanding amongst the trainees about

the Specific Role of the each Stakeholder in the Partnership?
the need for a supportive institutional environment to underpin the partnership?
whom their partners in the community should be and how they can work
collaboratively?
ADDITIONAL QUESTIONS FOR TRAINEES:
SERIES 1:
q What is HIV?
q What is AIDS?
q What is the HIV pandemic like in your county of operation?
q Why is the HIV pandemic such concern for your county of operation?
q How does this differ from other parts of the world?
q Why do you think epidemics can differ so much?
q What do you do at work and/or in personal life to prevent HIV transmission and viral
Hepatitis transmission?
o How can sexual transmission of HIV be prevented?
o How can transmission of HIV and viral hepatitis through blood be prevented?
q Do you have any questions or concerns?
q Has your understanding of HIV and AIDS has changed/evolved?
q Would you like to know more about HIV/AIDS and viral Hepatitis or about their
transmission?
q Why are PWID at Greater Risk of Contracting HIV?
q Why are these Groups Considered to be More Vulnerable to contracting HIV?
q How do specific laws or police practices hinder access to health-care services?
q How could drug policies and police practices change to improve access to services?
q What about Hepatitis C?
q What are the current challenges for HIV prevention, treatment and care in this country?
q What are the current programmes working in this area and what do they do?
q What is the potential role of Police?
q What can you do at work and in personal life to prevent HIV transmission and prevent
viral Hepatitis Transmission?
q Any questions or concerns? Has your understanding of HIV and AIDS changed?
q What would you like to know more about?
119

A N N E X 3.
q How can Police Services become better and more involved in supporting public health in
their own communities and in communities at higher risk of HIV, including PWID and
prisoners?
SERIES 2:
§ What can the trainees’ do to decrease the HIV risk in their environment?
§ What can be done to change risk levels in their environment?
§ What are some of the negative policing strategies that affect HIV risk?
§ What are the positive strategies that can decrease risk in their environment?
§ What do they need from the leaders in the trainees’ organisation?
§ What do they need from their law enforcement institutions?
§ What about the concept of knowing their communities – the community policing
concept?
§ Why are certain populations over-represented in the criminal justice system?
§ Is it a result of profiling or tactics?
§ Why are PWID, Sex Workers (SW), Men who have Sex with Men (MSM) at
greater risk of HIV?
§ How is their risk and vulnerability increased?
§ How can police contribute to reducing this risk and vulnerability?
§ What are some of the negative actions of the trainees’ organisation that impact on
PWID/PWUD and other KP?
§ What are the positive actions of the trainees’ organisation that can help
PWID/PWUD or other KP?
§ Where are the Crime ‘Hot Spots’?
§ Who are the Community?
§ How diverse is the Community?
§ What are their attitudes toward the trainees’ organisation?
§ If there is mistrust, why does that exist?
§ How might one start to build trust and respect between the Community and the
trainees’ organisation?
§ Why do you think that Marginalised Groups are Over-represented in the
Criminal Justice System?
§ What does this mean for you as a trainee?
§ What biases and attitudes do the trainees as a community have toward some
groups of people? (e.g. PWID/PWUD, ex-prisoners, migrants, SW).
§ List possible influences
§ What impact can these biases have on your ability to do your job well?
§ Why do they feel discriminated by the trainees?
§ What drugs are most commonly used in Kenya (Provincial/County or City Data)?
§ How are the drugs used?
§ What are some of the Law Enforcement Issues associated with these drugs?
§ What are the main Health and Social Issues associated with these drugs?
§ How many reasons can you come up with; regarding why do people use drugs?
§ What is a Drug?
§ What are the Most Commonly Reported Drugs Used in This Country?
120

A N N E X 3.
§ What drugs are most commonly used in Kenya (Provincial/County or City Data)?
§ How are the drugs used?
§ What are some of the Law Enforcement Issues associated with these drugs?
§ What are the main Health and Social Issues associated with these drugs?
§ How many reasons can you come up with; regarding why do people use drugs?
§ When is Drug Use a Risk Factor for Health, particular HIV?
§ What is Harm Reduction?
§ Examine different types of drugs, the patterns of use, the context of use and the
potential risks.
§ What policies, procedures, and guidelines, does your organisation have in place to
ensure the safety of people who are:
§ Intoxicated.
§ In custody.
§ Intoxicated and in custody.
§ What is Discretion?
§ What is an Ethical Dilemma?
121

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Training Manual for Judges and Judicial

MODULE 1A. ...................................................................................................................................................... 20

Module 1a. .......................................................................................................................................................... 21

MODULE 1B. ....................................................................................................................................................... 27

Module 1b. .......................................................................................................................................................... 28

MODULE 2A. ...................................................................................................................................................... 31

Module 2a. .......................................................................................................................................................... 32

The Right to Health in Ratified International Treaties. ........................................................................................... 33

MODULE 2B. ....................................................................................................................................................... 38

Module 2b. .......................................................................................................................................................... 39

MODULE 2C. ....................................................................................................................................................... 44

Module 2c. .......................................................................................................................................................... 45

OCCUPATIONAL HEALTH AND SAFETY: HIV AND HEPATITIS. ............................................................................... 49

Other Workplace Risk. ............................................................................................................................................ 51

MODULE 4A. ...................................................................................................................................................... 54

OVERVIEW OF THE ROLE OF JUDICIAL OFFICERS. ................................................................................................ 54

Module 4a. .......................................................................................................................................................... 55

Factors in Determining Whether to Impose a Custodial or Non-Custodial Sentence. ................................................. 63

MODULE 4B. ....................................................................................................................................................... 67

Module 4b. .......................................................................................................................................................... 68

INTRODUCTION TO DRUGS, POLICING AND HARM REDUCTION. ......................................................................... 78

Introduction to Drugs, Policing and Harm Reduction. ...................................................................................................... 79

Peer Outreach Benefits and Considerations for Judicial Officers. .......................................................................... 87

What is an Ethical Dilemma? ....................................................................................................................................... 94

CREATING MULTI-SECTORAL PARTNERSHIPS TO MORE EFFECTIVELY WORK WITH KEY POPULATIONS TO

BACKGROUND AND RATIONALE.

OVERVIEW OF THE TRAINING MANUAL.

PROPOSED WORKSHOP SCHEDULE

OVERVIEW OF HIV AND OCCUPATIONAL HEALTH INTRODUCTION TO DRUGS, CREATING MULTI-SECTORAL

OVERVIEW OF HIV AND AIDS:

It provides a cursory examinations the global epidemiology of HIV, the interventions

At the completion of this Module, participants should have an:

BACKGROUND AND RATIONALE.

KENYA’S NATIONAL STATISTICS.

The 2009 Study highlighted fact that:

RECOMMENDED HIV PREVENTION PROGRAMS FOR PWID.

HIV Prevention programs need to:

The programs sustainability will be anchored in the meaningful involvement of PWID in

RECOMMENDED HIV CARE & TREATMENT PROGRAMMES FOR PWID 11

ELEMENTS OF HIV CARE AND TREATMENT:

5. Prevention of fungal infections.

§ Special Considerations for HIV Care and Treatment of PWID.

§ Ensure Uninterrupted Supply of ART and/or OI Prophylaxis:

§ Tailored “Prevention with Positive” Interventions:

§ Screening and Treatment for Alcohol and Drug Abuse:

§ Quarterly STI Screening of PWID.

HARM REDUCTION INTERVENTION SERVICES

CASE STUDIES AND PRACTICAL SESSIONS.

OVERVIEW OF HIV AND AIDS: KENYA’S

At the completion of this Module, participants should have an:

KENYA’S COUNTY STATISTICS OF PWID.

SUMMARY OF THE HIV COUNTY PROFILE FOR PWID.

KENYAN STATISTICS ON PWID15.

1. Estimated Size of Population. 133,675

TABLE 1: KENYAN STATISTICS ON PWID.

CASE STUDIES AND PRACTICAL SESSIONS.

OVERVIEW OF HIV & PWID IN KENYA’S

The purpose of this Module is to:

After completion of this Module, participants should be able to demonstrate that:

THE RIGHT TO HEALTH IN THE CONSTITUTION.

THE RIGHT TO HEALTH IN RATIFIED INTERNATIONAL TREATIES.

SUSTAINABLE DEVELOPMENT GOALS.

GOVERNMENT DUTY IN REGARD TO THE RIGHT TO HEALTH.