A past Kenya Defence Forces recruitment exercise in Turkana County.
Peter (not his real name), a young man, joined the National Youth Service (NYS) in 2018, where he trained for a year and worked for five years overseeing several projects, including Kazi Mtaani and boda boda training. He was also involved in eradicating locusts.
In November 2021, the government advertised and carried out nationwide recruitment for the Kenya Defence Forces (KDF).
Peter applied and was called for interview at the NYS headquarters in Ruaraka, Nairobi, on November 24, 2021. As part of the interview, he was subjected to medical and physical tests.
Two days later, the young man – codenamed PKJ – received a letter from the Ministry of Defence showing he would join the armed forces as a general duty recruit.
He was required to report to the Recruits Training School, Eldoret, on December 25, 2021. PKJ was later found to be HIV positive and summarily dismissed on January 2, 2022.
The reasons for the dismissal were publicly announced by a recruitment officer. He was then handed his documents and escorted out of the training school.
Aggrieved, PKJ sued the Attorney-General, Defence CS, Chief of the Defence Forces and the Defence Council for discrimination.
He said the dismissal from the training college was a violation of Article 41 of the Constitution, which entitles all to the right to fair labour practices.
PKJ told the Labour Relations Court that as a result of the dismissal, he suffered mental anguish. He added that he was in good health and was ready and willing to serve his country as a soldier.
Reinstatement into military training
The court has ruled in his favour, declaring that PKJ’s rights were violated and that his treatment was insensitive, degrading and humiliating.
“The right to equality and freedom from discrimination is provided for in the Constitution. The respondent’s action amounted to direct discrimination and lacked justification,” the court said.
It also issued an order compelling KDF to publish its policy on recruitment and retention of persons with HIV within 90 days.
The court issued a structural interdict compelling the Defence Minister and Chief of Defence Forces to report to the court within four months and confirm compliance with the directive in respect of developing a policy on recruitment and retention of persons with HIV.
Though the court declined PKJ’s prayer for reinstatement into military training, it directed KDF to enlist him in the next recruitment unless there are valid reasons for not doing so and which should be communicated to the petitioner in writing.
The court said KDF is not excluded from the HIV/Aids Prevention and Control Act.
“This court finds it just and necessary to issue structural orders directing the second and third respondents to review the recruitment policies with regard to HIV applicants, noting that the respondents’ witness – Maj Edwin Muta – said KDF does not recruit persons with HIV,” the judge said.
Maj Muta was in charge of records for serving and retired KDF members.
He explained that for every successful recruit, a file is opened after the person has been given a service number.
Before going to court, PKJ had filed a claim at the HIV/Aids Tribunal, where he was awarded Sh1 million in compensation.
