A historic lawsuit in the Nairobi High Court, the first time that a Kenyan court will have heard a case relating to alleged discrimination against someone living with Aids, this week galvanised East African Aids activists.
Previously fractious organisations representing HIV-positive Kenyans, joined by Ugandan and Tanzanian colleagues, united to demonstrate in the streets and to declare a “new militancy”.
In the first case of its kind in Kenyan legal history, a 40-year-old woman is claiming unspecified but significant damages from her former employer, Home Park Caterers, which she alleges fired her from her job as a waitress after learning she was HIV-positive.
The plaintiff — to be identified only as “JAO” as per a court order — claims she visited a city doctor recommended by her employer after falling ill in 2002. In an affidavit, she states that, unbeknown to her at the time, the doctor tested her for HIV and passed the results on to Home Park, which soon afterwards informed her that she’d been dismissed “on the grounds of medical conditions”.
JAO later learned from the doctor concerned that she was HIV–positive. She’s also suing the doctor and his employer, Metropolitan Hospital, for testing her without consent, and for breach of confidentiality and privacy in releasing her test results to Home Park.
The firm claims it ended JAO’s contract after she became too ill to work effectively — legal grounds for dismissal in Kenya. Yet the woman argues she wasn’t chronically ill at the time and had rarely been absent from work during six years of employment.
JAO is also demanding that Home Park reinstate her. Her lawyer, Amolo Otiende, intends citing South African court cases relating to Aids discrimination “to help the court to arrive at a fair conclusion”.
They will draw on the landmark South African Constitutional Court order to South African Airways to employ a flight attendant whom the company had previously turned down because he was HIV-positive.
Otiende contends that Home Park, the doctor and the hospital were in “flagrant contravention” of International Labour Organisation and World Health Organisation guidelines — to which Kenya claimed to subscribe — that protect HIV–positive employees from discrimination.
“This pioneering case represents a major turning point in the history of HIV/Aids activism in East Africa, which, up until this point, has really been non-existent,” the coordinator of the National Empowerment Network of People Living with HIV/Aids in Kenya (Nephak), Inviolata Mmbwani, told the Mail & Guardian.
“Employers don’t understand that when they fire us for having Aids they actually fuel discrimination against us. We lose our friends; husbands throw wives out of the house; people label us prostitutes … Some of us have even been killed,” another Nephak official, Diana Mbari, lamented.
Mmbwani asserted that the precedent-setting Kenyan case “will help break down the stigma wall against us in respect to employment and employment opportunities”.
Groups representing Aids activists in Kenya have previously been torn apart by infighting.
“They’ve also been extremely hesitant to confront authority … but now they seem to be willing to unite in struggle. They’re imbued with a new-found confidence,” commented an official from an international aid organisation who is involved in Aids advocacy training in East Africa.
“We have a new spirit of militancy!” declared Mmbwani. “We’re taking the lead from our brothers and sisters in South Africa who’ve been very successful in their war against all forms of discrimination against HIV–positive people … We’re ready to fight those who try to destroy us and this court case is just the first of many we’re preparing to unleash.”
Unlike previous protests where Aids activists scattered at the first approach of police ranks, this week they faced them with both audacity and poise. And when a brash security officer clutching an automatic rifle ordered them to surrender their placards before entering the court building, the activists did so with aplomb and good humour.
“No problem! There are slogans on our T-shirts as well!” they shouted.
“We’re cooperating with international organisations who are training us in activism … they’ve taught us to march, to protest and sing if we want the media to highlight our campaigns. And they tell us to confront the authorities — but with dignity, not aggression,” explained Mmbwani.
Richard Mbujji, who described himself as a “supporter” of JAO, shouted: “Look at us here, singing and dancing before you! Does it look as if we can’t work; as if we are useless? No! We are here to demand justice. We feel as if, after years of oppression, we finally have a voice.”