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Lawsuit Forces Kenyan School to Enroll HIV-Positive Children - 2004-01-08

Acting under threat of litigation, a primary school in Kenya has changed their practice and enrolled HIV-positive children in its classes. Several other schools are expected to follow suit. This is a small victory in the battle against discrimination against HIV-positive children in Kenya.

The lawyer representing Nyumbani Children's Home, a shelter for HIV-infected children, says four of the 72 children in its care have been accepted in a public school. Ababu Namwamba says this is the result of a discrimination lawsuit he has filed against the government.

The lawyer says more than half of the children at the home have been able to enroll in a private school, but the cost is too high, and he hopes, as a result of the court action, all the children will be able to attend public schools.

Mr. Namwamba calls Nyumbani's court action against the government a landmark case, and says he hopes that, as the word spreads, other HIV-positive children will be able to study in public schools. He says there are about 1.5 million AIDS orphans in Kenya, many of whom may be HIV-positive themselves.

"I am hoping that more people will be able to come out and indicate that they have actually suffered this kind of discrimination," he said. "I believe that there are many, many more out there who may be suffering quietly."

He says the discrimination lawsuit was filed by the Nyumbani Children's Home following a sustained effort by public schools to reject HIV-positive applicants on a variety of pretenses.

He says the home was most often told the children lacked proper identification. One headmaster said he could not accept HIV-positive children because parents of non-infected children would pull their kids out of his school.

By rejecting HIV-positive children, Mr. Namwamba argued before the court Wednesday, the state violated Kenya's Children's Act and international conventions.

But government lawyers argued it was lack of space, not discrimination, that prevented the HIV-positive children from attending the schools.

High Court Justice Martha Koome ordered officials from the Nyumbani Children's Home and state and local authorities to negotiate a solution by Friday.

The undersecretary of legal affairs for the Ministry of Education, Joseph Meya, told VOA the schools do not discriminate.

"There is no refusal as such, maybe facilities," said Joseph Meya. "These are just small modalities and already children have been admitted. If there is anybody who has been refusing those children, it is not true. There is no discrimination - whatever circumstances, whatever status. It is actually inhuman and it is against the government's position."

He blames the schools' rejection of HIV-infected children on what he calls miscommunication.

The court will reconvene Friday to hear the results of the negotiations.