The HIV and AIDS Tribunal was created through an Act of Parliament, “The HIV and AIDS Prevention and Control Act of 2006 (HAPCA),” to reduce stigma and discrimination, enhance access to justice for People Living with and Affected by HIV in a judicially transformative environment.
Its main role is to adjudicate disputes arising out of matters relating to HIV and AIDS as envisaged by the Act and the administration and enforcement of the Act.
The Tribunal was officially launched in June, 2011, and in Executive Order No. 2 of July 2013, the Tribunal was anchored as a Semi- Autonomous Government Agency in the Ministry of Health. However, Article 159 of the Constitution of Kenya, 2010 placed all Tribunals under the Judiciary and therefore the process of transitioning them was then undertaken.
The Tribunal has original and appellate civil jurisdiction over complaints arising out of any breach of the provisions of the HAPCA Act which excludes criminal jurisdiction. It has the powers of a subordinate court of the first class to summon witnesses, to take evidence upon oath or affirmation and to call for the production of books and other documents.
In its determination of any matter, the Tribunal is not strictly bound by the provisions of the law of evidence Act (Cap. 80), and has power to award the costs of any proceedings before it and prescribe the scale applicable for taxation.
It consists of seven members appointed by the Attorney-General. The membership consists of the following:
- Chairperson who is an advocate of the High Court of Kenya of not less than seven years standing;
- Two Advocates of the High Court of Kenya of not less than five years standing;
- Two Medical practitioners recognized by the Medical Practitioners and Dentists Board as specialists under the Medical Practitioners and Dentists Act (Cap. 253); and
- Two Persons having such specialized skill or knowledge necessary for the discharge of the functions of the Tribunal
In order to confirm to a third gender rule provided for in the Constitution, the membership has at least two women within the categories stated above.
The Chief Justice in consultation with the chairman of the Tribunal, the Cabinet Secretary responsible for HIV matters and by Notice in the Gazette makes rules governing the practice and procedure of the Tribunal.
The Ministry of Health develops and reviews the National HIV and AIDS policy and the Tribunal takes into account these policies while determining disputes before it.
The Tribunal is currently based in Nairobi. However to align itself with the Judiciary’s transformation agenda and ensure that it brings services closer to the people, it has established few liaisons offices within the counties.
The Tribunal’s Chief Executive Officer, Mr Anyumba Nyamwaya says that there is need for a major shift in how cases of stigma and discrimination are addressed so as to ensure that the rights of people living and affected by HIV are at the core of the judicial response