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III. Background

HIV/AIDS and access to education

HIV/AIDS has had a devastating and unprecedented impact on the human rights of children.  More than 2.2 million people died of HIV/AIDS in sub-Saharan Africa alone in 2004, the vast majority of them adults of child-bearing age.  By the end of 2004, more than 25 million people were living with HIV/AIDS in the region, meaning the worst is yet to come in terms of AIDS-related mortality unless HIV/AIDS treatment becomes vastly more available.  Despite increased efforts to prolong the lives of people living with AIDS through antiretroviral treatment, such treatment remains available to just 11 percent of people in sub-Saharan Africa who need it.⁵  The AIDS epidemic is increasingly affecting more women than men, with thirteen women infected for every ten men in sub-Saharan Africa in 2003.⁶  As the primary caregivers to children in many countries, it is also the women—grandmothers, aunts, sisters, neighbors—who shoulder the heaviest childcare burden, and whose burden will only increase as AIDS orphans generations of children.

Long before AIDS claims the lives of parents, however, HIV-related illnesses impair their ability to generate household income and support and protect their children.  HIV/AIDS is also more likely than other diseases to kill both parents in a short time span.  At the death of one or both parents, AIDS-affected children join the ranks of millions of orphans who must depend on other family members, foster parents, community-based organizations, and other guardians for their survival and basic needs.  HIV/AIDS has contributed to a staggering increase in the number of the world’s orphans, a trend seen most dramatically in sub-Saharan Africa.  By 2003, the number of orphans in the region stood at 43.4 million, close to one in eight children.⁷  Almost 30 percent of these, or 12.3 million children, were orphaned by HIV/AIDS.  In the countries hardest hit by the HIV/AIDS epidemic, such as Botswana and Zimbabwe, children orphaned by AIDS represent over 75 percent of all orphans in the country.  These figures do not include the millions of additional children who are affected by AIDS as a result of the chronic illness of one or both parents, a population for whom no reliable data exist.  Some children affected by AIDS are HIV-positive themselves, having been infected either as infants through their mother’s pregnancy, childbirth, or during breastfeeding, or as adolescents, primarily through sex.

Education is an essential human need, yet even before HIV/AIDS it remained out of reach to millions of children worldwide.  In April 2005, the Global Campaign for Education estimated that 60 million girls and 40 million boys of primary-school age were out of school.⁸  While this number is declining, it is not declining quickly enough to achieve the goal of universal primary education by 2015.⁹  For the 2002-2003 school year, The United Nations Educational, Scientific and Cultural Organization (UNESCO) estimated net primary school enrollment in Africa to be 70 percent among boys and 63 percent among girls.  These figures dropped significantly at the secondary school level, to 32 percent among boys and 28 percent among girls.  In more than half of sub-Saharan African countries, more than one third of children do not complete grade five.¹⁰  Although progress is being made on addressing gender disparities in education in some countries, UNESCO estimates that this gender gap will not be closed by 2015.¹¹

It is particularly disturbing that as overall school attendance improves in many countries, inequalities are deepening between AIDS-affected children and their peers.  HIV/AIDS exacerbates many of the factors that have long impeded access to education.  The first among them is poverty: numerous experts have observed that as parents fall ill and become unable to work, a common coping mechanism is to withdraw children from school either to save the cost of school expenses or use the child for household or other labor.¹²  High medical and funeral bills may also make the costs of education prohibitive.  Even in countries that guarantee free access to primary education, including Kenya, South Africa, and Uganda, other prohibitive costs such as mandatory uniforms, textbooks, and examinations preclude children from attending school.  Indeed, numerous children interviewed for this report identified inability to pay for school fees or related costs as the proximate cause of their withdrawal from primary school, even in countries such as Kenya and Uganda that have an official policy of free primary education.

But HIV/AIDS does more than impoverish families.  It also deprives children of the care of their parents and extended family members, exposing them to a range of hardships both within and outside their households.  The deep stigma associated with HIV/AIDS, as well as the potential for HIV/AIDS to kill multiple family members in quick succession, increases the potential for abuse against AIDS-affected children compared to those affected by other diseases.  In previous reports on Kenya, Togo, Zambia, and India, Human Rights Watch documented numerous abuses against parentless AIDS-affected children including abandonment, hazardous child labor, trafficking, sexual abuse, disinheritance and other violations of legal rights, and discrimination in access to public benefits.¹³  Too often, these abuses occur at the hands of extended family members or foster parents meant to be caring for these children.  Governments bear the ultimate responsibility for protecting children from abuse and neglect, however most have failed to establish and enforce effective legal mechanisms to hold caregivers and other abusers accountable.  The absence of effective legal oversight of foster parents, including in all three countries visited for this report, contributes to an environment where abuse against AIDS-affected children can flourish with impunity, further threatening children’s access to education and other basic needs.

Surveys of AIDS-affected children’s school performance

Given the many stresses faced by AIDS-affected children, it might be expected that they would report lower school enrollment and attendance rates than their peers in statistical surveys.  Comparisons between AIDS-affected children and their peers are difficult to conduct, due in part to the difficulty of determining the cause of parents’ death, the difficulty of following representative samples of children over time, the stigma surrounding the epidemic, and difficulties in sampling and controlling for other factors that affect a child’s access to education such as poverty and place of residence.  However, surveys in highly AIDS-affected areas in numerous countries have found that orphans are less likely to attend school than non-orphans; less likely to be at the appropriate grade given their age; and more likely to have their schooling interrupted.  In 2003, based on demographic data from thirty-one countries, UNICEF concluded that “orphans are less likely to be in school and more likely to fall behind and drop out.”¹⁴  UNICEF estimated the risk to be greatest for children who had lost both parents: in Kenya, for example, 70 percent of children who had lost both parents were in school, compared to almost 95 percent of children who had at least one living parent.¹⁵  Differential attendance rates between orphans and non-orphans were most pronounced where school enrollment rates were already low, further illustrating the way in which orphan-hood exacerbates existing disadvantage.  

Recently, a number of studies conducted in heavily AIDS-affected areas of east and southern Africa have shown that children who experience the sickness and death of one or both parents are more likely over time to drop out or fall behind in school than their peers.¹⁶  According to a recent survey of 11,000 households in South Africa’s Kwa-Zulu Natal province, for example, children whose parents died during a three-year period were more likely than their peers—including those living at comparable levels of poverty—to drop out or fall behind in school, and their guardians spent less money on their education on average compared to the household’s biological children.¹⁷  A similar, five-year survey of 20,000 children in rural western Kenya found that the death of a parent led to a reduction in school participation rates by an average of 5 percent, regardless of the assets of the household.¹⁸  This study built upon an earlier survey of orphans in Kenya, which found that both parental sickness and parental death contributed to school drop-out, more so for children living in relatively poor households.¹⁹  A study conducted in Kagera, Tanzania based on interviews with 913 households from 1991-94 found that the death of a mother or both parents adversely affected school enrollment.²⁰ 

These surveys have many advantages over one-time “cross-sectional” comparisons of orphans and non-orphans.  By comparing school enrollment both before and after the death of a parent for the same child, they refute the argument that orphans might have been less likely to enroll in school even if their parents had not died.  In addition, by comparing the enrollment rates of children whose parents eventually die with those whose parents do not die, they provide some insight into the comparative impact of parental sickness and parental death on access to education.  Finally, when conducted in areas of high HIV prevalence where a majority of deaths are AIDS-related, they indirectly shed light on the impact of HIV/AIDS on school enrollment, even without recording the cause of death in individual cases.

Many explanations exist for AIDS-affected children’s apparent disadvantage in access to education, none of them complete.²¹  There is convincing evidence that the death of a mother, in particular, has a causal effect on school enrollment over and above the effects of poverty.  In the Kwa-Zulu Natal survey cited above, children whose mothers died did not immediately become poorer, but were still more likely to fall behind in school.²²  Children whose fathers died, by contrast, were more likely to live in poorer households, but their educational attainment was similar to that of non-orphans who were just as poor.  In the Kagera survey, enrollment rates for children who lost their fathers (but not their mothers) were similar to those of comparably poor children who had two living parents.²³  Similar patterns have been found in survey data from other parts of sub-Saharan Africa, including Malawi, Niger, Tanzania, and Zambia.²⁴  The authors of the Kwa-Zulu Natal study suggest that the death of a child’s mother deprives that child not only of emotional support, but also of an “education champion”—someone who will defend the interests of that child within the household and ensure that a fair share of whatever resources are available are spent on him or her.

Consistent with this analysis, a census of 8399 households in Manicaland, Zimbabwe in 2000 found that primary school completion rates were lowest among children who had lost their mothers, even though these children were found to live in wealthier households than those who had lost their fathers or both parents.²⁵  The authors attributed the difference to lack of support from fathers and stepmothers.  Apparently, regardless of the wealth of the household overall, the distribution of wealth within households shifted, to the disadvantage of the orphans.  Children whose fathers had died, by contrast, benefited from living in female-headed households despite the fact that these households tended to be poorer; this was in part because women were more likely to secure outside assistance from non-family members.  In 2003, UNICEF cited evidence showing that the primary determinant of orphans’ access to education was the strength of the familial tie between the orphan and the head of his or her household.²⁶  “The closer the tie, the greater the chance that the child will go to school,” the agency concluded.  This confirmed the widespread view that it is preferable for orphans to be fostered by extended family members than by non-relatives.

If AIDS-affected children are withdrawn from school to perform household labor or care for sick parents, it might be expected that girls would be the first to be withdrawn before boys.  The Kenya study cited above found that young girls were the most likely to fall behind in school on the death of a parent, perhaps because of the perception that educating daughters is less important than educating sons, or because girls are traditionally relied upon to perform household labor in the place of their parents.²⁷  Other studies, including the Kwa-Zulu Natal study cited above, have not found a wider gender gap in education among orphans, although they have found that girls are less likely than boys to be enrolled in school in the first place.²⁸

Ultimately, there is no one explanation for AIDS-affected children’s disadvantage in education that could account for the varied circumstances of all of these children.  Experts interviewed for this report emphasized that household income alone—important as it was—was not sufficient to ensure an orphan’s right to education.  These children also needed someone who was willing to fight for them in the community and within the extended family.  “These orphans have nobody, no one even to ensure their basic essentials,” said Anne Wanjiru of Grassroots Organizations Operating Together in Sisterhood (GROOTS)-Kenya, an organization providing care and support to female-headed households and children affected by AIDS.  “When a child is poor and has a mother, she will at least go from church to church asking for food.  But for the orphan, who will look for funds?”²⁹  Sylvia Ofumbi Nsiyona, a social support officer with The AIDS Support Organization (TASO) in Uganda said, “If kids with parents are dropping out of school, it’s worse for orphans.  Even the ones with caregivers, they put their own children first.”³⁰  School authorities and NGOs consistently observed that children affected by AIDS constituted the overwhelming majority of students at risk of school drop-out.  “In the Nairobi slums, most of the kids who don’t go to school are orphans,” said GROOTS-Kenya’s Wanjiru.  “I was brought up in the slums.  I see them, and I know them.”

Human rights standards

Education is a fundamental human right enshrined in numerous international human rights instruments, including the Universal Declaration of Human Rights (1948), the International Covenant on Economic, Social and Cultural Rights (1976), the Convention on the Rights of the Child (1989), and the Convention on the Elimination of All Forms of Discrimination against Women (1979).³¹  These instruments specify that primary education must be “compulsory and available free to all.”  Secondary education, including vocational education, must be “available and accessible to every child” with the progressive introduction of free secondary education.³²  Unique among the rights enshrined in the Covenant on Economic, Social and Cultural Rights, the right to primary education is subject to a special provision that obligates states “to work out and adopt a detailed plan of action for the progressive implementation, within a reasonable number of years, to be fixed in the plan, of the principle of compulsory education free of charge for all.”³³  The Convention on the Rights of the Child specifies that states must “take measures to encourage regular attendance and the reduction of [school] drop-out rates.”³⁴ 

The right to education is also recognized in the African Charter on the Rights and Welfare of the Child (1990), which calls on states to “provide free and compulsory basic education” and to “encourage the development of secondary education in its different forms and to progressively make it free and accessible to all.”³⁵  The African Charter specifically calls for “measures to encourage regular attendance at schools and the reduction of drop-out rates.”  Its education provisions contain a broad guarantee of non-discrimination for all disadvantaged groups, calling on states to “take special measures in respect of female, gifted and disadvantaged children, to ensure equal access to education for all sections of the community.”

Because states have different levels of resources, international law does not mandate exactly what kind of education must be provided, beyond certain minimum standards.  Accordingly, the right to education is considered a right of “progressive realization:” by becoming party to the international agreements, a state agrees “to take steps . . . to the maximum of its available resources” to the full realization of the right to education.³⁶

Although the right to education is a right of progressive realization, the prohibition on discrimination is not.  The Committee on Economic, Social and Cultural Rights, the expert body responsible for monitoring compliance with the International Covenant on Economic, Social and Cultural Rights, has stated: “The prohibition against discrimination enshrined in article 2(2) of the Covenant is subject to neither progressive realization nor the availability of resources; it applies fully and immediately to all aspects of education and encompasses all internationally prohibited grounds of discrimination.”³⁷  Thus, regardless of its resources, the state must provide education “on the basis of equal opportunity,” “without discrimination of any kind irrespective of the child’s race, colour, sex, language, religion, political or other opinion, national ethnic or social origin, property, disability, birth, or other status.”³⁸  “Other status,” as explained below, includes children’s or their parents’ HIV status.

Discrimination in access to education need not be overt or intentional in order to breach rights standards.  De facto discrimination, or discrimination caused by underlying factors rather than intent or law, is prohibited under international law.  The Committee on Economic, Social and Cultural Rights has clarified that education should be accessible to “especially the most vulnerable groups, in law and in fact,” and that “States parties must closely monitor education—including all relevant policies, institutions, programmes, spending patterns and other practices—so as to identify and take measures to redress any de facto discrimination.”³⁹  Merely eliminating formal barriers to education without taking steps to address underlying social conditions that impede educational access may be insufficient to ensure equality for vulnerable populations. 

Historically, examples of de facto discrimination in access to education have included lower school enrollment and completion rates among girls, poor access to education for children with disabilities, or consistently lower quality of education among ethnic minorities.  In many cases, the underlying factors that contribute to de facto discrimination may themselves be human rights abuses, as when unremedied violence or discrimination against girls, including sexual violence, contributes to diminished school enrollment or completion rates.  De facto discrimination can be accompanied by formal discrimination, as when children affected by AIDS are both barred from school due to stigma and vulnerable to school drop-out due to loss of parental care and other hardships.

Interpretations of the Convention on the Rights of the Child show that children affected by AIDS constitute a protected class for the purpose of the guarantee of non-discrimination in international law.  As noted above, the Convention on the Rights of the Child specifically prohibits discrimination on the basis of “the child’s or her or his parent’s or legal guardian’s race, color, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status” (emphasis added).  The Committee on the Rights of the Child, the expert body that monitors the Convention on the Rights of the Child, interprets “other status” to include HIV status of the child or his or her parents.⁴⁰  In its General Comment on HIV/AIDS and the Rights of the Child, the Committee specifically recognizes the particular disadvantage faced by AIDS-affected children in access to primary education and calls on governments to address this disadvantage:

[T]he Committee wants to remind the States parties of their obligation to ensure that primary education is available to all children, whether infected, orphaned or otherwise affected by HIV/AIDS.  In many communities where HIV has spread widely, children from affected families, in particular girls, are facing serious difficulties staying in school . . . . States parties must make adequate provision to ensure children affected by HIV/AIDS can stay in school and [to] ensure the qualified replacement of sick teachers so that children’s regular attendance at schools is not affected, and that the right to education (Article 28) of all children living within these communities is fully protected.⁴¹

This interpretation of the Convention on the Rights of the Child ought to be read alongside the Convention’s provisions on children deprived of parental care.  Article 20 of the Convention provides that “[a] child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State.”  This provision captures the situation of many children affected by HIV/AIDS and should compel governments to ensure alternative means of support for such children—both as a right in itself and as a means of safeguarding other rights, including the right to education.  Finding ways to support and monitor extended families, foster parents, community-based organizations, and other alternative means of support is one of the key steps governments can and should take to ensure AIDS-affected children’s equal access to education.

Education is not only a basic human right; it is also a pre-condition for the enjoyment of other human rights, including civil and political rights.  The Committee on Economic, Social and Cultural Rights has stated:

Education is both a human right in itself and an indispensable means of realizing other human rights.  As an empowerment right, education is the primary vehicle by which economically and socially marginalized adults and children can lift themselves out of poverty and obtain the means to participate fully in their communities.  Education has a vital role in empowering women, safeguarding children from exploitative and hazardous labour and sexual exploitation, promoting human rights and democracy, protecting the environment, and controlling population growth.⁴²

In the context of HIV/AIDS, education has been recognized as a safeguard against abuse for AIDS-affected children, as a way of mitigating the impact of HIV/AIDS on families and communities, and even as a “social vaccine” against HIV infection.  Ensuring equal access to education for AIDS-affected children is thus essential both to fulfilling governments’ human rights obligations and to combating the HIV/AIDS pandemic.

Note on Kenya, South Africa, and Uganda

Some background about the AIDS epidemic and the education system in Kenya, South Africa, and Uganda will assist readers in understanding the testimony in this report.  In Kenya, HIV/AIDS was not declared a national emergency until 2001, by which time the epidemic had claimed an estimated 140,000 lives.⁴³  At the end of 2003, Kenya was home to some 650,000 children orphaned by AIDS, representing 37 percent of the country’s orphans.⁴⁴  Unlike many other sub-Saharan African countries, the number of orphans in rural areas in Kenya is 20 percent higher than in urban areas.⁴⁵  Kenya abolished school fees for primary education in 2003, a move that is often cited as having increased educational opportunities for orphans and other vulnerable children.  However, primary schools still levy fees for books, uniforms, examinations and other services, and numerous children interviewed for this report said this kept them out of school.  Kenya announced in June 2005 a system of cash grants to families caring for orphans, however, as of this writing, it is too early to assess the impact of this policy.⁴⁶  The government also provides some bursaries for primary and secondary school through local government funds, but these programs have limited reach and are prone to corruption.  Kenya has ratified international treaties guaranteeing the right to education and has included a guarantee of free primary education in its draft constitution.

HIV/AIDS has claimed more lives in South Africa than in any other country in the world.  An estimated 1.1 million South African children have been orphaned by AIDS; this figure represents 48 percent of South Africa’s orphans.⁴⁷  Slightly more orphans live in rural areas than urban areas.⁴⁸  Despite a constitutional guarantee of free education until age seventeen and ratification of international treaties guaranteeing the right to education, South Africa still allows schools to levy fees, and many do.  However, schools are required to grant waivers to children who cannot afford to pay, and some children interviewed for this report said they were attending primary school for free.  The requirement that schools grant waivers is not always observed, however, and many schools, citing the need for the revenue generated by school fees, refuse to waive fees even for orphans.  South Africa also provides two types of cash grants to the parents or guardians of needy children.  The parents or guardians of all poor children are eligible for a child support grant of R160/month (U.S.$25.00) per child under fourteen, while foster families are eligible for a foster child grant of R500/month (U.S.$78.00)for each child “in need of care,” a term designed for children who have been abused or neglected but routinely applied to orphans as a whole.

Uganda has been widely praised for its successful efforts to reduce HIV prevalence since the late 1980s.  However, there remains a grave orphan crisis as a result of high death rates early in the epidemic and continuing mortality today.  The country was home to an estimated 940,000 children orphaned by AIDS in 2003, representing 48 percent of the country’s orphans.⁴⁹  Unlike Kenya, there are about 30 percent more orphans in Uganda’s urban areas than rural areas.⁵⁰  In addition to the large number of children orphaned by AIDS, Uganda is also home to large numbers of children orphaned by war and civil conflict.  Uganda introduced a policy of universal primary education (UPE) in 1997, and since then the percentage of children who have never attended school has dropped from 19 percent to 6 percent for boys and 36 percent to 22 percent for girls.⁵¹  The so-called “UPE bulge” of 1997 led to a shortage of qualified teachers, strained infrastructure, and a host of other quality issues in the education sector; many parents interviewed for this report said they chose private schools over free “UPE schools” despite living in deep poverty.  They also said UPE schools were not free in any case; like Kenyan schools, they often charged for books, uniforms, and other necessities.  The Ugandan constitution calls for the progressive realization of the right to education, and Uganda has ratified international treaties recognizing this right.  According to an education official interviewed by Human Rights Watch, the Ugandan government does not provide cash subsidies to orphans or other vulnerable children, but instead supports community-based organizations in providing assistance to these children.