KDF tested me without consent, then threw me out for HIV positive status

In December last year, a 23-year-old National Youth Service (NYS) graduate was elated that he would finally join the Kenya Defence Forces (KDF).

The recruitment letter required him to report to the Recruits Training School in Eldoret on December 25 last year.

He considered himself really lucky, considering that thousands had turned up for the recruitment at NYS headquarters in Ruaraka, Nairobi, on November 26, but only a few had been picked.

“Out of 35,000, I made the list of the 500 new recruits,” recounts Emmanuel Otieno*.

“I am pleased to inform you that you have been successful in the interview for recruitment into the Kenya Defence Forces as a general duty recruit. You are, therefore, required to report to the Recruit Training School (RTS), Eldoret, not later than 0800 hrs (8am) for further examinations and commencement of training,” his official admission letter reads in part.

Lifted his spirits

The good news helped lift his spirits, given the previous month he had lost his elder brother.

“I am the second-born in a family of 10 children and four mothers. In October 2021, we lost our elder brother, a nurse, in a tragic boat accident in Lake Victoria,” he recollects.

After receiving the news of his admission to the KDF training school, that evening he called his father.

“The news injected a new ray of hope in him and the entire family. In fact, I travelled home the following day, a Saturday, because the next day the entire family was expected to turn up for a thanksgiving ceremony in church,” he narrates.

Fresh medical procedures

“When I reported to the military training school in Eldoret, we were subjected to fresh medical procedures. All was well and I was given platoon number 58, besides being dispatched to Simba Division houses,” he says.

His journey to becoming a KDF officer was, however, short-lived.

Emmanuel discloses that prior to the official opening of the military training on January 3 this year, during the usual morning parades, names of people with what were described as “medical issues” and “academic issues” were called out publicly.

“I was surprised to be among the about 300 whose names had been read out. To my shock and disbelief, we were ordered to return our letters and all the military gear and equipment we had been issued. We were then given Sh1,000 each to use as bus fare and then ordered to go back to our homes,” Emmanuel says.

He was shocked.

Tested positive for HIV

“I approached one of the medical officers and demanded to know why I was being sent away. I had been told that my issue was ‘medical’. The medical officer disclosed that they had resolved to dismiss me because I had tested positive for HIV.

 “They had taken blood samples from me during their mandatory ‘medical tests’ without letting me know that they were testing for HIV. I did not at any point consent to a HIV test,” Emmanuel tells the Nation.

He did not understand why other tests that had been taken both in the field during recruitment and at the training school did not indicate his status to be positive.

“I refused to hand over my documents. Even if it was true, HIV is not a killer disease and cannot affect my training since I am very fit. They were, however, adamant that I be sent away,” he recollects.

He says his biggest worry now is how to provide for the larger family.

“Finding a job when you are living with HIV is almost impossible, especially when we have employers who subject job applicants to medical tests and discuss the test results even before disclosing them to the people who took those tests,” Emmanuel says, tears rolling down his cheeks.

“My family looks up to me. I have not gone home, what do I tell them?” he asks pensively.

Put on antiretrovirals

“I did another test on my own and it confirmed I was HIV-positive. I was put on antiretroviral drugs and I have since been taking the drugs religiously.”

Mr Otieno says his pleas to be allowed back into the KDF training school have fallen on deaf ears.

“My team-mates have already graduated and are serving the nation. I would like to be given a chance to go back and complete my training and be deployed like the rest since HIV is a condition anyone can live with as long as they take medication, as I have been doing,” he says.

Illegal

In an interview with the Nation, constitutional lawyer Dan Okemwa said that according to the law, it’s illegal to terminate an employee's contract because of his or her HIV status.

“It’s an invasion of privacy and confidentiality for an employer to test a staff member for HIV without the latter’s knowledge or consent. It’s illegal for the doctor to disclose a patient’s medical status to their employer. Further, an employee cannot be deemed to be medically unfit solely on the basis of HIV status. There must be evidence of the employee's inability to work due to the illness,” he explained.

Ms Stephanie Musho, a human rights lawyer and sexual reproductive health expert, agrees with Mr Okemwa.

Article 27 (4) of the constitution bars the state from directly or indirectly discriminating against any person on any grounds, including their health status, she says.

Essentially in employment

“By virtue of having an admission letter, being in legal possession of government-issued uniform and having already reported for training, he was essentially in the employment of the ministry,” she says. 

“By denying him the job based on his HIV status, the Ministry of Defence acted in contravention of the law and must be held accountable,” Ms Musho adds.

She further explains that Article 31 of the constitution protects everyone’s right to privacy.

“By testing his blood samples for HIV without his knowledge and/or consent, the ministry violated his right as protected by the highest law in the land. It is not only illegal, it is also unethical.”

Standards and procedures

Responding to queries highlighted by the Nation by phone, a Major Jacob Mantai, whom Mr Otieno says was his recruitment officer, said that RTS has its own standards and procedures.

“There is information that I cannot give you. You can, however, speak to the Department of Defence.”

The Ministry of Defence, in an official email response, promised to review the matter and revert.

Kenya has a legal and policy framework backed by agencies such as the National Aids Control Council and the National Council on Population and Development to ensure the country has progressive protocols on response and prevention of HIV.

Editors note: Mr Otieno's^ real identity has been withheld by the Nation for legal and ethical reasons.

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