Adis Act 2016
Adis Act 2016
Adis Act 2016
ACT NO. 14 of 2006 - HIV and AIDS Prevention and Control Act
Commencement Date: 2009-03-30
AN Act of Parliament to provide measures for the prevention, management and control
of HIV and AIDS, to provide for the protection and promotion of public health and for
the appropriate treatment, counselling, support and care of persons infected or at risk
of HIV and AIDS infection, and for connected purposes
Arrangement of Sections
Part I - PRELIMINARY
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Interpretation.
24 Prevention of Transmission.
Part VII - THE EQUITY TRIBUNAL
25 Establishment of the Tribunal.
26 Jurisdiction of the Tribunal.
27 Powers of the Tribunal.
28 Disobedience of Summons to Give Evidence, Etc.
29 Enforcement of Orders for Damages and Costs.
30 Rules.
Part VIII - DISCRIMINATORY ACTS AND POLICIES
31 Discrimination in the Workplace.
32 Discrimination in Schools.
33 Restriction on Travel and Habitation.
34 Inhibition from Public Service.
35 Exclusion from Credit and Insurance Services.
36 Discrimination in Health Institutions.
37 Denial of Burial Services.
38 Penalty for Discriminatory Acts and Practices.
Part IX - RESEARCH
39 Requirements for Research.
40 Consent to Research.
41 Anonymous Testing.
42 Penalty for Unlawful Research.
Part X - MISCELLANEOUS PROVISIONS
43 General Penalty.
44 Cognizable Offences.
45 Regulations.
46 Act to Supercede Other Acts.
Subsidiary legislation
Commencement-27th February, 2009
Arrangement of Sections
Part I - Preliminary
1. This Act may be cited as the HIV and AIDS Prevention and Control Act,
2006 and shall come into operation on 30th March, 2009 other than sections
14, 18, 22, 24 and 39.
2. In this Act, unless the context otherwise requires"Acquired Immune Deficiency Syndrome (AIDS)" means a condition
characterized by a combination of signs and symptoms, resulting from
depletion of the immune system caused by infection with the Human Immunodeficiency Virus (HIV);
"anonymous testing" means an HIV testing procedure whereby the person
being tested does not reveal his true identity but instead, an identifying
number or symbol is used which allows the testing centre and the tested
person to match the test results with the identifying number or symbol;
"child" has the meaning assigned to it in the Children Act, 2001;
"compel", in relation to HIV testing, refers to an HIV test imposed upon a
person characterized by the lack of consent, use of physical force, intimidation
or any other form of compulsion;
"consent" means consent given without any force, fraud or threat and with full
knowledge and understanding of the medical and social consequences of the
matter to which the consent relates;
"guardian" in relation to a child or a person with disability, means any person
having custody of such child or person with disability by reason of the death,
illness, absence or inability of the parent of such child or person, or for any
other cause.
"health institution" means a hospital, nursing home, maternity home, health
centre, dispensary, pharmacy or other institution, whether private or public,
where healthcare services are rendered;
"health maintenance organization" means a limited liability company
established for the purpose of operating and managing healthcare funding
and managed healthcare systems through membership administration
schemes, and which offers hospital and clinical services supported by a
contracted healthcare service provider network of doctors, other healthcare
professionals, and which, in addition, may offer ambulance or rescue services
and undertake franchise arrangements in the management of health
institutions;
"healthcare provider" means(a) a medical practitioner or dentist registered under the Medical Practitioners
and Dentists Act;
(b) a pharmacist or a pharmaceutical technologist registered or enrolled under
the Pharmacy and Poisons Act;
(c) a nurse registered and licensed under the Nurses Act;
(d) a clinical officer registered and licensed under the Clinical Officers
(Training, Registration and Licensing) Act;
(e) a laboratory technician or technologist registered and licensed under the
Medical Laboratory Technicians and Technologist Act, 1999;
(f) counsellors who have completed training as approved by the Minister for
the time being responsible for matters relating to health;
and includes any other person approved by the Minister under section 16;
"healthcare service" rendered to a person means(a) the physical or mental examination of that person;
(b) the treatment or prevention of any physical or mental defect, illness or
deficiency and the giving of advice in relation to that defect, illness or
deficiency;
(c) the performing of any surgical or other invasive procedure;
(d) the giving of advice in relation to treatment of any condition arising out of a
pregnancy;
(e) the prescribing, dispensing, supplying or applying of any medicine,
appliance or apparatus in relation to any defect, illness or pregnancy;
(f) X-ray, laboratory and other investigative and diagnostic procedures;
(g) physiotherapy, speech therapy, occupational therapy and other types and
variations of similar rehabilitative treatment;
(h) nursing or midwifery in health institutions and other places where nursing
and midwifery services may be rendered, including home-based nursing and
midwifery services by duly qualified registered and experienced nurses and
midwives;
(i) the supply of accommodation in any institution established or registered in
terms of any law as a health institution or any other institution or place where
surgical or other medical procedures are performed, provided that such
"positive", in relation to the result of an HIV test, means a result which shows
that the person who is tested is infected with HIV or which shows evidence of
such infection;
"post exposure prohylaxis" means the administration of one or a combination
of anti-retroviral drugs after probable exposure to HIV, for the purpose of
preventing transmission;
"post-test counselling" refers to the process of providing a person who
submitted themselves for an HIV test with risk-reduction information and
emotional support at the time the test result is released;
"pre-test counselling" means the process of providing a person, before such
person undergoes an HIV test, with information on the biomedical apsects of
HIV and AIDS and emotional support with respect to the psychological
implications of undergoing an HIV test;
"self testing" in relation to HIV infection, means a prescribed test or series of
tests carried out entirely by a person on self without the involvement of
another person, which determine whether a person is infected with HIV;
"testing centre" means a testing centre approved by the Minister under
section 16;
"tissue" includes an organ or part of a human body, semen, breast milk and
any other substance or secretion, other than blood, extracted from the human
body or from a part of the human body;
"Tribunal" means the HIV and AIDS Tribunal established by section 25.
. The object and purpose of this Act is to(a) promote public awareness about the causes, modes of transmission,
consequences, means of prevention and control of HIV and AIDS;
(b) extend to every person suspected or known to be infected with HIV and
AIDS full protection of his human rights and civil liberties by(i) prohibiting compulsory HIV testing save as provided in this Act;
(ii) guaranteeing the right to privacy of the individual;
(iii) outlawing discrimination in all its forms and subtleties against persons with
or persons perceived or suspected of having HIV and AIDS;
(iv) ensuring the provision of basic health care and social services for persons
infected with HIV and AIDS;
(c) promote utmost safety and universal precautions in practices and
procedures that carry the risk of HIV transmission; and
(d) positively address and seek to eradicate conditions that aggravate the
spread of HIV infection.
(2) The Ministry responsible for education, in consultation with the Ministry,
shall ensure that every teacher or instructor of an HIV and AIDS prevention
and control course under this section is adequately trained and duly qualified
to teach such course.
6. (1) HIV and AIDS education and information dissemination shall form part
of the delivery of healthcare services by healthcare providers.
(2) For the purposes of subsection (1), the Government shall ensure training
of healthcare providers on proper information dissemination and education on
HIV and AIDS, including post-exposure propylaxis for prevention of
transmission.
(3) The training of healthcare providers under this section shall include
education on HIV-related ethical issues such as confidentiality, informed
consent and the duty to provide treatment.
(4) The Minister for the time being responsible for matters relating to health
shall, in collaboration with relevant stakeholders, provide guidelines for post
exposure prophylaxis.
7. (1) The Government shall ensure the provision of basic information and
instruction on HIV and AIDS prevention and control to(a) employees of all Government Ministries, Departments, authorities and
other agencies; and
(b) employees of private and informal sectors.
(2) The information provided under this section shall cover issues such as
confidentiality in the work-place and attitudes towards infected employees and
workers.
8. Every local authority, in collaboration with the Ministry, shall conduct an
educational and information campaign on HIV and AIDS within its area of
jurisdiction.
the tissue and such test shall , except in the case of emergencies, be carried
out.
10. (1) All donated blood shall, as soon as reasonably practicable after
donation, be subjected to an HIV test.
(2) Any blood tested under subsection (1) which is found to be HIV positive
shall be disposed of in accordance with the prescribed guidelines on the
disposal of medical waste as soon as reasonably practicable after such result
is obtained.
11. (1) The Minister shall, in consultation with registered professional
associations of healthcare providers, prescribe guidelines on(a) precautions against HIV transmission during surgical, dental, delivery,
embalming and similar procedures; and
(b) the handling and disposal of cadavers, body fluids or wastes of persons
with HIV.
(2) The Minister shall, at all times, ensure the provision of protective
equipment such as gloves, goggles and gowns to all healthcare providers and
other personnel exposed to the risk of HIV infection.
(3) The Minister shall, at all times, ensure the provision of post exposure
prophylaxis to healthcare providers and other personnel exposed to the risk of
HIV infection.
(4) In this section, "Minister" means the Minister for the time being responsible
for matters relating to health.
12. (1) A person who, in the course of his professional practice, knowingly or
negligently causes another to be infected with HIV through unsafe or
unsanitary practices or procedures contrary to the provisions of this Part, or of
any guidelines prescribed hereunder, commits an offence.
(2) Notwithstanding the provisions of any other written law for the time being
in force, a court may, in addition to any penalty imposed on a person
convicted under subsection (1)(a) in the case of an institution, order the revocation of any business permit or
licence in respect thereof; or
(b) in the case of a natural person, order the revocation of licence to practice
such person's profession.
13. (1) Subject to this Act, no person shall compel another to undergo an HIV
test.
(2) Without prejudice to the generality of subsection (1), no person shall
compel another to undergo an HIV test as a precondition to, or for continued
enjoyment of(a) employment;
(b) marriage;
(c) admission into any educational institution;
(d) entry into or travel out of the country; or
(e) the provision of healthcare, insurance cover or any other service.
(3) Notwithstanding the provisions of subsection (1), a person charged with an
offence of a sexual nature under the Sexual Offences Act, 2006 may be
compelled to undergo an HIV test.
(4) A person who contravenes any of the provisions of this section commits an
offence.
14. (1) Subject to subsection (2), no person shall undertake an HIV test in
respect of another person except(a) with the informed consent of that other person;
(b) if that person is a child, with the written consent of a parent or legal
guardian of the child:
Provided that any child who is pregnant, married, a parent or is engaged in
behaviour which puts him or her at risk of contracting HIV may, in writing,
directly consent to an HIV test;
(c) if, in the opinion of the medical practitioner who wishes to undertake the
HIV test, the other person has a disability by reason of which he appears
incapable of giving consent, with the consent of(i) a guardian of that person;
(ii) a partner of that person;
(iii) a parent of that person; or
(iv) an adult offspring of that person;
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Provided that a medical practitioner may undertake the HIV test if the persons
referred to in paragraphs (i), (ii), (iii) and (iv) are either absent or are unwilling
to give consent;
(d) where the person is required to undergo an HIV test under the provisions
of this Act or any other written law.
(2) Notwithstanding the provisions of subsection (1)(a) a person who offers to donate any tissue shall be deemed to have
consented to the HIV test required under section 9;
(b) a person who offers to donate blood shall be deemed to have consented
to the HIV test required in respect of such blood under section 10;
(c) a medical practitioner responsible for the treatment of a person may
undertake an HIV test in respect of that person without the consent of the
person if(i) the person is unconscious and unable to give consent; and
(ii) the medical practitioner reasonably believes that such a test is clinically
necessary or desirable in the interest of that person.
(3) Subject to section 17, a medical practitioner who undertakes an HIV test
on a person under this section shall, if the person so requires, disclose the
results of the HIV test to that person.
(4) A person who contravenes the provisions of this section commits an
offence.
15. The Minister shall ensure that facilities for HIV testing are made available
to persons who(a) voluntarily request an HIV test in respect of themselves; or
(b) are required under the provisions of this Act or any other written law to
undergo an HIV test.
16. (1) No person shall carry out an HIV test except in a testing centre
approved by the Minister under this section or in the manner specified under
paragraph (d) of subsection (4).
(2) No person shall carry out an HIV test unless such person is a healthcare
provider approved by the Minister for that purpose.
(3) No person shall provide pre-test or post-test counselling for the purposes
of section 17 unless such person is approved by the Minister under this
section.
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(4) The Minister shall, in regulations, prescribe(a) the standards and the procedure for the approval of testing centres for the
purposes of this Act;
(b) the standards and the procedure for the approval of healthcare providers
for the purposes of subsection (2);
(c) guidelines for the provision of pre-test and post-test counselling services at
such centres, including the standards and the procedure for approval of
persons qualified to provide such services; and
(d) guidelines for self testing.
(5) A person who contravenes the provisions of this section or of any
regulations made hereunder commits an offence.
(6) In this section, "Minister" means the Minister for the time being responsible
for matters relating to health.
17. (1) Every testing centre shall provide pre-test and post-test counselling to
a person undergoing an HIV test and any other person likely to be affected by
the results of such test.
(2) The Ministry responsible for matters relating to health shall enhance the
capacities of testing centres by ensuring the training of competent personnel
to provide the services required by this Act to be provided at such centres.
18. The results of an HIV test shall be confidential and shall only be released(a) to the tested person;
(b) in the case of a child, to a parent or legal guardian of such child;
Provided that where any such child consents to an HIV test directly under
section 14(1)(b), the results thereof shall be released to the child; or
(c) in the case of a person with a disability which, in the opinion of the medical
practitioner undertaking the test, renders him incapable of comprehending
such result to(i) the guardian of that person;
(ii) a partner of that person;
(iii) a parent of that person; or
(iv) an adult offspring of that person.
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19. (1) Every health institution, whether public or private, and every health
management organization or medical insurance provider shall facilitate
access to healthcare services to persons with HIV without discrimination on
the basis of HIV status.
(2) The Government shall, to the maximum of its available resources, take the
steps necessary to ensure the access to essential healthcare services,
including the access to essential medicines at affordable prices by persons
with HIV or AIDS and those exposed to the risk of HIV infection.
Part V Confidentiality
20. (1) The Minister for the time being responsible for matters relating to
health may, in regulations, prescribe privacy guidelines, including the use of
an identifying code, relating to the recording, collecting, storing and security of
information, records or forms used in respect of HIV test and related medical
assessments.
(2) No person shall record, collect, transmit or store records, information or
forms in respect of HIV tests or related medical assessments of another
person otherwise than in accordance with the privacy guidelines prescribed
under this section.
21. No person shall, in any records or forms used in relation to(a) a request for an HIV test by persons in respect of themselves;
(b) an instruction by a medical practitioner to a laboratory for an HIV test to be
conducted;
(c) the laboratory testing for HIV or HIV antibodies; or
(d) the notification to the medical practitioner of the result of the HIV test,
include any information which directly or indirectly identifies the person to
whom an HIV test relates, except in accordance with the privacy guidelines
prescribed under section 20.
22. (1) No person shall disclose any information concerning the result of an
HIV test or any related assessments to any other person except(a) with the written consent of that person;
(b) if that person has died, with the written consent of that person's partner,
personal representative, administrator or executor;
(c) if that person is a child, with the written consent of a parent or legal
guardian of that child:
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(a) take all reasonable measures and precautions to prevent the transmission
of HIV to others; and
(b) inform, in advance, any sexual contact or person with whom needles are
shared of that fact.
(2) A person who is and is aware of being infected with HIV or who is carrying
and is aware of carrying HIV shall not, knowingly and recklessly, place
another person at risk of becoming infected with HIV unless that other person
knew that fact and voluntarily accepted the risk of being infected.
(3) A person who contravenes the provisions of subsections (1) or (2)
commits an offence and shall be liable upon conviction to a fine not exceeding
five hundred thousand shillings or to imprisonment for a term not exceeding
seven years, or to both such fine and imprisonment.
(4) A person referred to in subsection (1) or (2) may request any medical
practitioner or any person approved by the Minister under section 16 to inform
and counsel a sexual contact of the HIV status of that person.
(5) A request under subsection (4) shall be in the prescribed form.
(6) On receipt of a request made under subsection (4), the medical
practitioner or approved person shall, whenever possible, comply with that
request in person.
(7) A medical practitioner who is responsible for the treatment of a person and
who becomes aware that the person has not, after reasonable opportunity to
do so(a) complied with subsection (1) or (2); or
(b) made a request under subsection (4),
may inform any sexual contact of that person of the HIV status of that person.
(8) Any medical practitioner or approved person who informs a sexual contact
as provided under subsection (6) or (7) shall not, by reason only of that action,
be in breach of the provisions of this Act.
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(b) two advocates of the High Court of not less than five years standing;
(c) two medical practitioners recognized by the Medical Practitioners and
Dentists Board as specialists under the Medical Practitioners and Dentists Act;
and
(d) two persons having such specialized skill or knowledge necessary for the
discharge of the functions of the Tribunal.
(2) At least two of the persons appointed under subsection (1) (a), (b) and (c)
shall be women.
(3) The quorum for a meeting of the Tribunal shall be the chairman and four
other members.
(4) All matters before the Tribunal shall be decided by the votes of a majority
of the members present.
(5) There shall be paid to the members of the Tribunal such remuneration and
allowances as the Minister may in consultation with the Treasury determine.
(6) The office of a member of the Tribunal shall become vacant(a) at the expiration of three years from the date of his appointment;
(b) if he ceases by any reason to be such advocate or medical practitioner as
referred to in subsection (1);
(c) if he is removed from membership of the Tribunal by the Attorney-General
for failure to discharge the functions of his office (whether arising from infirmity
of body or mind or from any other cause) or for misbehaviours; and
(d) if he resigns the office of member of the Tribunal.
26. (1) The Tribunal shall have jurisdicition(a) to hear and determine complaints arising out of any breach of the
provisions of this Act;
(b) to hear and determine any matter or appeal as may be made to it pursuant
to the provisions of this Act; and
(c) to perform such other functions as may be conferred upon it by this Act or
by any other written law being in force.
(2) The jurisdiction conferred upon the Tribunal under subsection (1) excludes
criminal jurisdiction.
27. (1) On the hearing of a complaint or an appeal made pursuant to section
26, the Tribunal shall have all the powers of a subordinate court of the first
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28. Any person summoned by the Tribunal to attend and give evidence or to
produce any records, books of account, statements, or other documents or
required to answer interrogatories and who, without sufficient cause(a) refuses or fails to attend at a the time and place mentioned in the
summons served on him;
(b) refuses or fails to answer, or to answer fully and satisfactorily, to the best
of his knowledge and belief all questions lawfully put to him by or with the
concurrence of the Tribunal; or
(c) refuses or fails to produce any records, books of account, statements or
other documents which are in his possession or under his control mentioned
or referred to in any summons served on him, commits an offence and shall
be liable upon conviction to a fine not exceeding fifteen thousand shillings or
to imprisonment for a term not exceeding two years, or to both.
29. (1) Where the Tribunal awards damages or costs in any matter before it, it
shall, on application by the person in whose favour the damages or costs are
awarded, issue to him a certificate stating the amount of the damages or costs.
(2) Every certificate issued under subsection (1) may be filed in the High
Court by the person in whose favour the damages or costs have been
awarded and, upon being so filed, shall be deemed to be a decree of the High
Court and may be executed as such.
30. Except as otherwise provided in this Act, the Chief Justice may in
consultation with the chairman of the Tribunal, and by Notice in the Gazette
make rules governing the practice and procedure of the Tribunal having
regard to the objectives of this Act.
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35. (1) Subject to this Act, no person shall be compelled to undergo a HIV test
or to disclose his HIV status for the purpose only of gaining access to any
credit or loan services, medical, accident or life insurance or the extension or
continuation of any such services.
(2) Notwithstanding the provisions of subsection (1), an insurer, re-insurer or
health maintenance organization shall, in the case of life and healthcare
service insurance cover, devise a reasonable limit of cover for which a
proposer shall not be required to disclose his or her HIV status.
(3) Where a proposer seeks a cover exceeding the no test limit prescribed
under subsection (2) the insurer, reinsurer or health maintenance organization
may, subject to this Act, require the proposer to undergo an HIV test.
(4) Where a proposer elects to undergo an HIV test pursuant to subsection (3)
and the results thereof are positive(a) the proposer shall, at his own expense, enter into such agreed treatment
programme with the insurer as may be prescribed by the Minister in
consultation with Commissioner for Insurance; or
(b) the insurer may impose a reasonable additional premium or lien to the
benefits ordinarily purchased; or
(c) the insurer may decline granting the cover being sought.
(5) A person aggrieved by a determination as to what is reasonable for the
purposes of this section may appeal to the Commissioner of Insurance in
accordance with such procedure as may be prescribed in regulations and the
Commissioner of Insurance shall make a determination on the basis of
statistical and actuarial principles and other relevant considerations.
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Part IX - Research
39. No person shall undertake HIV and AIDS related human biomedical
research on another person, or on any tissue or blood removed from such
person unless such research conforms to the requirements under the Science
and Technology Act or any other written law for the time in force.
40. (1) No person shall undertake HIV or AIDS related human biomedical
research on another person or on any tissue or blood removed from such
person except(a) with the written informed consent of that other person; or
(b) if that other person is a child, with the written informed consent of a parent
or legal guardian of the child.
(2) The person whose consent is sought to be obtained under subsection (1)
shall be adequately informed of the aims, methods, anticipated benefits and
the potential hazards and discomforts of the research.
41. (1) Notwithstanding anything to the contrary in this Act, the Minister for the
time being responsible for matters relating to health may prescribe guidelines
under which anonymous testing for HIV may be carried out.
(2) Any anonymous testing conducted pursuant to this section shall only be
for the purposes of public health.
42. A person who contravenes any of the provisions of this Part commits an
offence.
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43. A person convicted of an offence under this Act for which no other penalty
is provided shall be liable for imprisonment for a term not exceeding two years
or to a fine not exceeding one hundred thousand shillings or to both.
44. All offences under this Act shall be cognizable to the police.
45. Subject to this Act, the Minister may make regulations(a) for prescribing anything required by this Act to be prescribed; or
(b) generally for the better carrying out of the objects of this Act.
46. Where the provisions of this Act or any regulations made hereunder are
inconsistent with the provisions of any other written law, the provision of this
Act or of such regulations shall prevail.
Subsidiary legislation
LEGAL NOTICE NO 34
THE HIV AND AIDS PREVENTION AND CONTROL ACT
(No 14 of 2006)
COMMENCEMENT
IN EXERCISE of the powers conferred by section 1 of the HIV and AIDS Prevention
and Control Act, 2006, Act, the Minister of State for Special Programmes appoints the
30th March, 2009, as the date on which the Act, other than sections 14, 18, 22 and 39
shall come into operation.
Made on the 27th February, 2009
N.N. SHABAN
Minister of State for Special Programmes.
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