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RIGHTS OF HIV POSITIVE WOMEN TO MARRY

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					Rights of HIV Positive Men/Women to Marry The issue of marriage for people living with HIV/AIDS is thorny in Kenya churches, some of which insist that a couple intending to marry ought to take an HIV test as a pre condition to celebrating the marriage in that church. Several proponents of this approach aver that it secures a marriage from future infection and fraud about a person’s positive status. Interestingly, this requirement is not written in almost all church manuals nor is there a clear policy of what happens, when for instance, one of the couples turns out to be positive. In this article we highlight the marriage statutes in Kenya and outline their basic requirements for a person to ‘qualify’ to marry. Section 8 of the Marriage Act states that whenever any persons desires to marry, one of the parties to the intended marriage shall sign and give to the registrar a notice of intention to marry. According to the same Act, the registrar will then proceed to issue a certificate of notice. He can refuse to issue the certificate on the following grounds;     When one of the parties has not been living in the area for at least 15 days before the issue of the certificate. When one of the parties is not over 18years old. When one of the parties is married under customary law or Islamic law. When there no impeding family ties or other lawful hindrance.

Section 14 of the Marriage Act goes on to say that the Minister, upon being satisfied that there is no lawful impediment to the proposed marriage and that the necessary consent has been obtained may grant his license, authorizing the celebration of a marriage between the parties named in the license. They may be then be married by;  A registrar,  A recognized minister,  Some religious denomination or body. Note that failure to issue a certificate on the grounds of one’s HIV status is not a prerequisite in the Act. Nowhere in the marriage is Act it stipulated that the couple wishing to marry must undertake a compulsory HIV test. The Act proceeds to state that marriages may be celebrated in any licensed place of worship by any recognized minister of the church, denomination or body to which such place of worship belongs. The marriage may be done according to the rites and usages of marriage observed in such church or denomination, or with the consent of that church’s minister provided that;  The marriage is celebrated with open doors between 8am and 6pm  The marriage is in the presence of two or more witnesses besides the officiating minister.

Again, there is no mention anywhere of an HIV test or any other medical test for that matter being required before marriage can be celebrated in a church. Any such provision in any law would, as a matter of fact, be inconsistent with the Constitution of Kenya. This would make it void in effect because it would be discriminatory. Section 82 of the same constitution states that no person shall be discriminated against on any ground, including health status.

The African Christian Marriage and Divorce Act also does not provide for compulsory HIV testing as a prerequisite for the permission to marry or for the issuance of a marriage certificate. It states that marriages may be performed in any place of public worship provided that;    It is performed by a licensed minister. It is performed between 6am and 6pm with open doors. It is before two or more witnesses.

This requirement of compulsory testing before marriage is also inconsistent with the HIV and AIDS Prevention and Control Act, which was enacted with the objective “to extend to every person suspected or known to be infected with HIV and AIDS full protection of his human rights and civil liberties by;  Prohibiting compulsory testing save as provided in the Act  Guaranteeing the right to privacy of the individual  Outlawing discrimination in all its forms and subtleties against persons with or persons perceived/suspected of having HIV and AIDS. Section 13 of the same Act specifically prohibits against compulsory testing by stating that no person shall compel another to undergo an HIV test as a precondition to;  Employment  Marriage  Education  Travel etc. It adds that a person who contravenes any of the provisions of this section commits an offence. This puts it clearly that under the HIV and AIDS Prevention and Control Act 2006 it is an offence to compel a couple to undergo compulsory HIV testing as a precondition to marriage. General Disclaimer: Aids Law Project (website) is designed for informational and educational purposes only. The information posted on this website is not to be taken or substituted for professional counsel. If you have a problem or are in need of professional advice, please contact us on support@aidslawproject.org


				
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posted:12/9/2009
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