China Henan International Co-operation Group Co. Ltd (CHICO) forced a Kenyan female work to take HIV/AIDS against her will and went ahead to humiliate her by making the results public. CHICO was the contractor engaged for the construction of the Isebania- Kisii road by the Ministry of Transport, Infrastructure, Housing, Urban
In the HAT CASE NO. 06 OF 2021 before the HIV and AIDS Tribunal, the unnamed victim together with other employees were forced by the agents of the CHICO to undergo HIV testing. The lady told the tribunal that she was not willing to undergo the test, but she was made to understand that it was either she took the test or lost her job, so she chose to keep her job.
Further, the lady averred that on the same day, one of the senior employees of the firm , working on orders from the Chinese bosses, forced her to retake the HIV test. The second testing was characterized by physical assault, forcing her into submission for HIV testing. The senior employee then went ahead to disclose the her HIV status to all that were present at the Quarry site.
The tribunal heard that she was employed at the Chinese as a cook since 23rd December 2019. Sometime in March 2021, she had gone out for lunch one day. On reporting back to work at about 3pm, she found a crowd of people at the premises telling her that they were waiting for her in order to conduct an HIV test on her. The people indicated that they had been instructed by CHICO.
At that point, her boss was present and instructed her to go for the test. She did not want to lose her job so she agreed to be tested. The results came out and the doctor dumped the kit in the garbage. She testified that as she was walking out of the shed, her boss grabbed her and ordered her to be re-tested. She went back to be re-tested. It was her testimony that this time around, her boss left with the testing kit and waited for the results. Once the results came out, the boss began calling people around, and informing the people that the she was sick and should go home. Her colleagues began laughing at her and isolating her.
After this incident with the testing, her boss instructed her to go collect her terminal benefits. She was very embarrassed, angry and upset. She proceeded to collect her job card and left the premises. She then reported the matter at the Police Station and obtained an OB number. She was asked to go back to the Police Station the following, but did not make it since she was feeling unwell. She went back to the Police Station 3 days later.
She was accompanied by the DCIO to the company’s head office for a meeting, after which the DCIO proceeded to the [Particulars Withheld] site and picked up the boss for questioning. Upon inquiry by the DCIO, CHICO’s representative made a proposal to pay the Claimant some money, including house allowance and 6 months’ salary, which offer the Claimant declined.
She secretly recorded the conversations in the meeting and tendered the 2 hour audio recording to the tribunal, in which there are several voices speaking in English, Kiswahili and Dholuo.
The audio recording begins with some gentlemen’s voices and one female voice that is later identified as the victim. One of the gentlemen’s voices has an Asian Chinese accent, presumably a representative of the company. She then presents her complaints against the company, and a gentleman, presumably a police officer, is overheard saying that it was wrong for the lady’s photos to be circulated and that this has led to her stigmatization. At some point during the conversation, an offer is made to her to settle this matter by paying her some money, house allowance and allowing her to choose where she would like to work. She rejects the offer. Later in the recording, in Dholuo, a gentleman is overheard pleading with her to accept the offer by the company and not pursue the matter any further as this will jeopardize his future and that of his colleagues.
At no point in the recording is there any denial by any of the parties that any wrongdoing occurred. In fact, the offer made and general nature of the discussion is akin to an admission of liability on the part of the Respondent’s representatives. In the premise, the tribunal found that, on a balance of probabilities, the unlawful disclosure of the Claimant’s status by the supervisor to third parties did occur.
The company admitted to having contracted Valley Health Services to conduct HIV awareness within the project. It was a continuous program that began in 2017 and there had been no complaints in the past.
The tribunal found out that the employer used its position of power to intimidate the employee into agreeing to be tested for HIV, against her will. The tribunal found the company guilty and awarded the former employees for damages.
The ruling reads in part “Judgment is, therefore, entered in the sum of Ksh. Sh1.6m in favor of the former employee against the employee”. She was paid Ksh. 250,000 being for damages for conducting an HIV test on her without her informed consent, Ksh.500,000 being damages for the unlawful disclosure of her status to third parties without her consent and Ksh. 850,000 being damages for emotional and psychological distress as a result of the stigma brought on by the disclosure of her status.
