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Working and Living on the Street and Other Hazardous Labor
The "Common Country Assessment" published in 2000 by the U.N. agencies in Kenya noted that the burgeoning population of children orphaned by AIDS has led to an increase in child-headed households and "inevitably" in child labor.79 The U.N. agencies asserted that the phenomenon of a historically large population of AIDS orphans is also a significant contributor to increases in the number of street children in urban areas and in the number of child prostitutes. They further concluded that the widespread practice of children being pulled out of school when AIDS is in the family is a strong impediment to economic and human development in Kenya in both the medium and long term.

This conclusion on the part of U.N. agencies in the country is not new. A WHO/UNICEF report concluded in 1994 that in Kenya AIDS is a vicious circle, putting children at many kinds of risk, including the risk of HIV transmission:

...AIDS has become another factor pushing children onto the streets, as parents die and relatives are unable or unwilling to provide care. Some street children are involved in sniffing glue or solvents, and their level of sexual activity is high, bringing the risk of sexually transmitted diseases, including AIDS.80

A recent study by UNICEF on HIV/AIDS and child labor in eastern and southern Africa concludes that AIDS plays an important role in pushing a significant percentage of Kenya's estimated 3.5 million working children into the labor market.81

The permanent secretary of the Ministry of Education, W.K.K. Kimalat, told Human Rights Watch that AIDS is a driving force behind both the increase in the school drop-out rate in recent years and the increased numbers of street children in the country.82 In its current five-year development plan, written in 1996, the government of Kenya acknowledged that 3 million school-age children were out of school.83 The 1999 census, however, puts the figure at 4.2 million.84 A forthcoming study by several university-based researchers and ICROSS, an NGO based in Kenya, compared over 5,200 children whose parents died of AIDS with the same number of age-matched children who were orphaned by other causes. In this study, children orphaned by AIDS had significantly lower rates of school enrolment and retention than did other orphans.85 They also suffered higher rates of severe and moderate malnutrition and were more likely to be in child-headed households.

Other NGOs in Kenya have gathered numerous reports of children affected by AIDS being in desperate situations where they are forced to engage in hazardous labor or wind up living on the streets. Human Rights Watch's interviews corroborated these accounts. Children and those caring for them or providing services to them recounted many desperate situations driven by the presence of AIDS in the family. Susan B., age ten, who had lost her mother to AIDS only a few weeks before Human Rights Watch met her in the Korogocho neighborhood of Nairobi, said that things were so bad when her mother was dying that her mother would send her to the streets to steal.86 (She was later assisted by Pendekezo Letu, an organization that works with girls living and working on the streets.) Stealing on the streets of Nairobi is potentially very dangerous labor, particularly in view of the abusive treatment of street children by the police and in the juvenile justice system.87

Claire S., age twenty-two, became the head of the household at age seventeen in Kisumu when her mother died of AIDS, and she still cares for her three younger siblings.

I tried to do anything to keep us going-I made chapatis and sold them, I washed cars, and now I'm working for a woman with a small kiosk, but I don't think it's going to last. The government should lend money to people so they can start a business and be self-reliant. I may have to go into prostitution, and then I know I will get HIV and die. I would rather have a real business, but it is not easy.88

When her mother died, Paulette O., twenty-one, became the breadwinner in her elderly grandmother's household when she was only ten. From the age of about fourteen years, she engaged in prostitution off and on and had a child of her own whom she cares for in addition to her two younger siblings who depend on her completely since the recent death of her grandmother. Paulette said she knows she is lucky she did not get HIV. "I thought I would die like my mother. But now I am living positively and I want to start my own business and stay away from parking [prostitution] if I can."89

Elizabeth Owuor-Oyugi, director of ANPPCAN-Kenya, one of the leading organizations in Kenya for the protection of children against abuse and neglect, described the many reports her office receives of abuse of AIDS-affected children. One account from Nyanza Province reported many AIDS orphans engaged in prostitution:

There were high levels of prostitution, even among girls as young as nine years old. The father's brother will come in and take the land after the parents die. His wife sends the children out at night and tells them not to come back until they have 200 shillings. Of course they will fall into prostitution-what else can they do?90

Prostitution is classified as among the worst forms of child labor in the International Labor Organization Convention No. 182, which has been ratified by sixty countries, but not by Kenya.91 The physical and psychological hazards of child prostitution, even without highly prevalent HIV/AIDS, are well known.

John Mburu, who runs the orphan program in the Kariobangi slum of Nairobi for Action-AID-Kenya, encounters similar cases frequently. "With some guardians, there is abuse-we find a lot of sexual abuse, alcoholism, and so on. Children are told to go to the dumps and streets and come back with money in the evening....We find children as young as eight years old who are the bread-winners."92 Joab Othatcher, director of TEMAK, an NGO in Kisumu which has provided services to hundreds of AIDS-affected children and young adults, said "survival sex"- girls engaging in prostitution because they have no other means of survival - is very common among girls affected by AIDS. "Measures are not being put into place to protect these children" and give them other opportunities, he noted.93

Sending girls out to be domestic workers is another common survival strategy for AIDS-affected families. Samuel K. is the guardian of the four children of his sister, who died of AIDS in 2000. The oldest is a fifteen-year-old girl who he said was sexually abused as a housemaid during the period when her mother was dying until he pulled her out of that employment. Unfortunately, by the time he tried to enrol her in school, the headmaster said she was too old to return.94

Joab Othatcher of TEMAK was part of a team that conducted a study recently of potential dangers to girls working as housemaids in Nyanza Province.95 In this study, of the twenty-five girls aged nine to sixteen years who were interviewed in depth, eighteen were HIV-positive. Of those eighteen, most had worked in several homes and reported being sexually abused in all or most of them. Fifteen of the girls said their first sexual experiences were coerced and were with their employer or someone in his family or circle of friends. All but one of the HIV-positive girls did not know about HIV/AIDS or how to protect themselves from it. UNICEF and the ILO's International Programme on the Elimination of Child Labour (IPEC) have documented the hazards of domestic labor, especially for girls, in many parts of the world.96

UNICEF's 1999 child labor study in Kenya surveyed children working on commercial tea and coffee plantations in the districts of Kiambu and Nyeri in Central Province where HIV prevalence is estimated to be above 30 percent in the adult population.97 In the sample of this survey, more than 10 percent of the 264 children had grandparents as their primary caregivers, and most of the rest lived in single-parent households. Though it was not possible in all cases to link deaths in the family to AIDS, the researchers conclude that AIDS deaths are a key determinant of children's need to work in these districts. In this sample, 11 percent of children said they had been sexually abused on the farms, of whom one fifth were under the age of eight years, and several children recounted severe work-related injuries as well as beatings.

Children should not have to steal, turn to prostitution, or engage in other forms of labor in order to meet their daily survival needs. These needs are generally the responsibility of parents, who "have the primary responsibility for the upbringing and development of the child."98 But when children have been deprived of the protections of a family environment, whether because their parents have died or for other reasons, the state has the responsibility to protect them from harm and secure their basic needs.

The right of children to such protection and care is guaranteed by the International Covenant on Civil and Political Rights (ICCPR) and the U.N. Convention on the Rights of the Child, international human rights treaties which Kenya has ratified. Article 24 of the ICCPR guarantees the right of the child "to such measures of protection as are required by his status as a minor." Article 3(2) of the Convention on the Rights of the Child (CRC) provides that a child has the right to "such protection and care as is necessary for his or her well-being." Article 32 of the CRC guarantees the right of the child to be protected from "economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child's education, or to be harmful to the child's health, mental, spiritual, moral or social development." Further, under article 19 of the convention, children have the right to protection from "all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child."99

The failure to provide such protections for children who are deprived of a family environment may also infringe upon their right to the highest attainable standard of health and their right to an education on equal terms with other children.100 Accordingly, these measures of protection will necessarily include economic, social, and cultural measures. The Human Rights Committee, the treaty monitoring body established under the ICCPR, for example, notes that "every possible economic and social measure should be taken prevent [children] from being subjected to acts of violence and cruel and inhuman treatment or from being exploited by means of forced labour or prostitution, or by their use in the illicit trafficking of narcotic drugs, or by any other means."101

Psychological Trauma

The situation of children affected by AIDS, especially orphans, is exacerbated by psychological trauma, whether they or not are on the street or in hazardous labor. This is a very neglected aspect of the care and protection of children orphaned and otherwise affected by AIDS. Many AIDS orphans, particularly older children, become the principal care-givers of a dying parent and see that parent through a long and painful illness. Most of the orphans interviewed by Human Rights Watch, even those who could not identify the illness, described the terrible and exasperating ordeal of watching their ill parents become more frail, endure severe pain, and suffer stigmatization and rejection at the hands of health workers. "I don't know what she had," said Philip W., age sixteen, of his mother who had died a few months before, "but she had a lot of pain all over her body."102 Susan B., age ten, appeared deeply troubled by the fact that she and her sister had never been called to the countryside where they thought their mother's body was returned for burial.103 "I don't even know if she ever got buried," she said. John Mburu of ActionAID-Kenya noted: "Even before a child is an orphan a lot happens. They need counselling-no one ever thinks of it. They leave school and need help; no one bothers about their counselling needs."104 The Population Communication Africa study of orphans on Rusinga Island in western Kenya found that 77 percent of the AIDS orphans surveyed said they had no one outside their decimated families to "tell their troubles to".105

A factor that adds to the psychological burden of many orphans is separation from their siblings. If children have been together through the ordeal of seeing their parents die of AIDS, they are likely to depend heavily on one another for emotional support. Philip W., age sixteen, had to risk getting in trouble with his supervisor on the farm where he worked to visit his eleven-year-old sister, who lived with his grandmother.106 Their grandmother, who had little income, told Human Rights Watch she felt she could not take both the children after the death of their parents107 Susan B., who was unsure about her mother's burial, said she was sad to be separated from her older sister, who had gone away to work as a housemaid and was not able to leave her workplace for visits.108


Legal experts and AIDS-affected persons alike recounted to Human Rights Watch a wide range of instances of disinheritance of children orphaned by AIDS in Kenya. Legal experts were unanimous in linking the increasing number of disinheritance cases to the AIDS epidemic. The property involved in these cases is most frequently the house in which the parent or parents of the children lived and sometimes the land on which it sits or adjacent land, occasionally also including movable property in or around the house. Some experts noted that property-grabbing has been practiced against widows in Kenya since before the era of AIDS, but that HIV/AIDS has made disinheritance a particular problem of children since surviving spouses usually do not live very long in AIDS-affected households.109 One high-profile case followed by the Kenyan national media involved Beatrice Wanyonyi, a woman living with AIDS, whose relatives locked her out of a family business in which she was a shareholder. Her case was delayed because she had to apply for a waiver of legal fees, and she died before she could finish filing a legal action to reclaim her property.110

When a person dies without leaving a will and is survived only by children under eighteen years old, any property to be inherited should be administered by an adult who receives a letter of administration to handle the property. If there is no one else to administer the property, the public trustee, who is a government official-usually the district commissioner-is meant to ensure that the property is put in trust until the eldest surviving child comes of age.111 The law provides that no one except for the representative appointed by the court to administer the estate "shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person."112 Letters of administration are granted based on a complex procedure outlined in the Probate and Administration Rules under section 97 of the Succession Act.

In spite of these protections, there was consensus among the legal experts interviewed by Human Rights Watch that AIDS-affected children in Kenya are highly disadvantaged in safeguarding their inheritance rights when their parents are both dead. Eric Ogwang, a noted children's law expert and former magistrate of the children's court, said he believes that even more than the stigma associated with AIDS, the pattern of mortality associated with AIDS in the extended family impedes realization of children's inheritance rights. That is, especially in the most affected communities, AIDS has tended to claim the lives not only of the parents of a child but of siblings and cousins in the parents' generation within their extended family. As a result, children are left with few relatives to whom they can turn to help protect their property. "When talking of the legal system, the question is who will administer the estate of a child-and too often the answer is the same person who wants to do the grabbing [of their property]," he said.113 This observation was echoed by other lawyers who have worked on AIDS-related cases.114

Several of the children interviewed by Human Rights Watch had the experience of having no one to turn to but a relative who was apparently more interested in their property than in taking care of them. Ten-year-old Susan B., whose parents both died of AIDS, was living with a neighbor in a slum of Nairobi:

My father's relatives said that the property didn't go with me and my sister, and they said go back to Nairobi to what you're used to. They didn't help my mother when she was sick. We got no assistance. When we were there up-country with them, they made my mother sleep in the kitchen [a lean-to away from the house] and not in the main house. We had to come back to the house my mother had here [in Nairobi]. But then [after my mother's death] my uncle took that house, and I have to live somewhere else.115

Jane A., age thirty-nine, is a widow living with AIDS in Nairobi who cares for her two children as well as the six children of her sister, who died of AIDS in 1995.

After my sister's husband died, she turned to her in-laws for help, but they told her to move from the house. She sold vegetables to make money and stayed outside the property much of the time. They treated her this way because of the property, which they wanted. She became a useless person to them, the same as the children.116

"There are so many cases where the nearest relative wants to take up the property but not care for the children," said Ambrose D.O. Rachier, a lawyer in private practice and founder and director of the Kenya Ethical and Legal Issues Network on HIV/AIDS (KELIN), who has followed many legal cases involving AIDS-affected families since the beginning of the epidemic in Kenya.117 This view was supported by several of the AIDS-affected families interviewed by Human Rights Watch. Yusuf M., thirty-five, who cares for three of his brother's children in Rachuonyo in western Kenya, in addition to his own children, said that he wound up with the children because other members of his family were only willing to care for them if they received an allowance from their father's former employer, the Kenyan Navy. "When they saw that the children would not receive the navy benefits, they sent them away," he said.118

Human Rights Watch encountered a number of relatives and guardians of children orphaned by AIDS who wished to work on behalf of the children to safeguard the inheritance of their property but ran into difficulties. "I asked the local authorities to let the children inherit the land and benefit from its sale, but they just told me, `Take the children and let us deal with the land.' I talked several times to the chief, but he said I should just leave the land to be taken care of by those in the locality and keep the children with me in Kisumu," said Marian M., a grandmother caring for three children of two of her children, both of whom died of AIDS.119 One guardian in Nyanza Province who cares for two orphans in addition to her own children, noted:

I have not been able to get the legal papers to be the official guardian of these children and help them with their property. I went to the Children's Department, and they sent me to the Probation Department, and Probation sent me to Social Services, and Social Services sent me to the chief, and finally I went to the district commissioner, but still I was not helped. I know that means I can't bring a case to court on behalf of these children and the property they have a right to.120

According to Millie Odhiambo, director of a children's legal aid service called CRADLE, this is a common story, and it is more than just bureaucratic run-around:

Children actually face problems in the system that adults don't face. The law makes it hard for children. They have no standing. They need someone to seek a letter of administration on their behalf. For a letter of administration, there have to be identification documents and birth certificates. What child will know how to obtain a birth certificate? Sometimes by the time we obtain a letter of administration, the movable property has already been taken away...The mechanism that is in place, the public trustee, doesn't do its work. The bureaucracy takes forever-it takes years to settle a case with adults, and it's worse with children.121

Kenyan law leaves plenty of scope for property ownership disputes, particularly those involving land. "Property and land law are also very confused....Someone can register in the court as an administrator of an estate, but still it may be possible for someone else to take termination benefits or other property away," said Eric Ogwang.122 Even when there is a will, it is easy for challenges to property agreements to be brought by extended family members if they can obtain legal counsel, a provision in the law that some lawyers say was written to reflect the values of extended families that do not always exist anymore in Kenya.123 Orphaned children are less likely than income-earning adults to be able to retain counsel to defend themselves from such challenges. Legal aid services for children are provided on a significant scale by only five organizations based in Nairobi and one based in Thika, and they conclude that they meet only a small fraction of the enormous demand for these services.

A number of guardians of orphans and legal experts interviewed by Human Rights Watch criticized the institution of the public trustee as an avenue of protection for the inheritance rights of children. "There is nothing like a public trustee for these children. The public trustees always want you to give them something to do anything," said Harriet R., a guardian of two orphans.124 One lawyer interviewed by Human Rights Watch has handled a number of cases where money was turned over to the public trustee only to "disappear."125 "The public trustee can be an effective mechanism [in children's property cases], but the problem is that it is open to abuse. The principal weakness is like that of any public institution-people are not well paid," said David Otieno, a Kisumu-based attorney and member of KELIN.126 Ambrose Rachier, the KELIN founder, said, "Like all civil service offices, in the office of the public trustee no one attends to you, and this makes it useless for orphans."127

Another challenge is that people have difficulty understanding the mechanisms and legal procedures that are in place to represent children's interests with respect to their inheritance. "Some guardians are able to run around and look for administration papers, but many don't even know there is something they can do," noted Jedida Nyongesa, executive director of the Child Welfare Society of Kenya.128 "People are not aware that a legal system exists [to protect children's property rights]," said Elizabeth Owuor-Oyugi of ANPPCAN-Kenya.129 "Education of communities on legal rights is very important," she added. "People also confuse the administration of someone's estate with ownership-this is a matter to be dealt with through public education," said Justice Effie Owuor of the Court of Appeals.130

Several experts suggested that it would be useful for the government to amend the law to make it easier for nongovernmental organization workers and other non-relatives to be children's legal representatives for the purposes of property disputes. ANPPCAN-Kenya notes:

[There is] a shortage of lawyers at district level. There is no government-supported legal aid programme even for the adult population. Given the high cost of legal representation and the poverty in which the majority of Kenyans live, most parents or guardians cannot afford lawyers' fees even when their children's rights have been violated.131

"One solution might be for the government to give NGOs standing to act as guardians [for the purpose of these legal processes] or to establish a larger pool of people to provide legal assistance," said Millie Odhiambo.132 Justice Effie Owuor, one of the experts advising on the development of proposed children's legislation before the parliament, said, rather, that this need for better representation of children's interests is a responsibility of the state. "The Attorney General's office-the state counsels-should take on more. We can't just leave this to voluntary organizations."133

As of January 2001, the High Court of Nairobi established a Family Division to hear cases involving intrafamilial disputes, particularly cases of divorce and maintenance (child support and alimony). A number of the legal experts interviewed by Human Rights Watch thought that the new family court would be an important mechanism for civil disputes involving inheritance by orphans, though this view was not unanimous. As a civil court, the family court would not be able to handle cases of alleged criminal appropriation of property. The timetable for the expansion of the family court to high court locations in Kenya other than Nairobi is not clear.134 "We need to deal with this as a much bigger issue [than expansion of the family court]," said Millie Odhiambo. "We need to take a substantive look at the Succession Act and simplify it to improve access for children to the legal system."135

The failure to safeguard the property rights of AIDS-affected children deprives them of the "protection and care...necessary for [their] well-being" to which they are entitled under article 3(2) of the Convention on the Rights of the Child. This general provision should be read together with article 12 of the convention, which guarantees the right of children to have the opportunity to be heard in all matters affecting them, particularly in any judicial or administrative proceedings affecting them.

In addition, as a class, AIDS-affected children are likely to be targeted for dispossession of their property to a degree that other children are not. As described above, the pattern of AIDS mortality frequently leaves children with few or no relatives to whom they can turn for assistance in protecting their property. If the state does not secure the property rights of AIDS-affected children on equal terms with other individuals who inherit property, it fails to protect these children from discrimination on the basis of having an AIDS-affected parent. The U.N. Committee on the Rights of the Child has noted that distinctions made on the basis of having an AIDS-affected parent constitute an inappropriate ground for discrimination.136 Deprivation of property contributes to the impoverishment of children and increases the likelihood that they will be unable to enjoy the highest attainable standard of health and the right to education guaranteed them in the Convention on the Rights of the Child.137

Access to Information

Making a dent against HIV/AIDS in any population depends on popular access to appropriate and clear information on HIV prevention and AIDS treatment and care. The right of children to such information is guaranteed by the free expression provisions in article 13 of the Convention on the Rights of the Child and article 19 of the International Covenant on Civil and Political Rights, both of which include the "freedom to seek, receive and impart information and ideas of all kinds." Children's access to information on HIV/AIDS, including on means of protection from HIV transmission, is literally a matter of life and death.

The best source of national-level information on what the population of Kenya knows about HIV/AIDS is the Demographic and Health Survey (DHS) of 1998.138 According to the DHS, 99 percent of the population of Kenya had heard of AIDS and knew that the HIV virus is transmitted through sexual intercourse. The same survey showed, however, that only 40 percent of adults were able to identify at least two methods of protecting themselves from infection. More than one in four girls aged fifteen to nineteen years in Kenya did not know of any way to protect themselves from HIV transmission. About one quarter of girls in this age group reportedly believed that someone with HIV will always look sick or conversely that someone who looks healthy cannot infect others with HIV. The corresponding figure for boys was 15 percent. Moreover, about 80 percent of both boys and girls aged fifteen to nineteen perceived themselves to be at no risk or small risk of "getting AIDS." This result is striking in view of the estimate from the DHS that the mean age of first sexual intercourse among boys in Kenya was sixteen years and among girls was seventeen.139

Population Communication Africa recently released the results of a more detailed survey on access by children and young persons in Kenya to information on HIV/AIDS and their knowledge of key topics related to HIV transmission. Unlike the DHS survey, which was limited to persons aged fifteen years and over, the PCA survey included children as young as thirteen. The PCA survey largely confirmed the results of the DHS and concluded that a high percentage of young people in Kenya are grossly misinformed about HIV transmission and related issues. For example, 28 percent of young persons surveyed believed that HIV could be transmitted by mosquitoes. Some 32 percent did not know that condom use was part of safer sex practice.140

Aside from its other dangers, under information of the kind reported by surveys in Kenya may contribute to stigma and discrimination. A number of AIDS-affected persons interviewed by Human Rights Watch reported, for example, being stigmatized because of the belief that AIDS is a highly contagious disease transmissible through casual contact:

"people won't use the same toilet as me...."141

"no one will drink from the same cup as me or use the same plate..."142

"in my church, they isolated me; I had to sit in the back apart from others so I stopped going"143

"children at school said `your mother has that disease; we don't want to catch it'..."144

Linda R., a forty-two-year-old woman in Nairobi who cares for one child orphaned by AIDS in addition to her own children, reported having been scorned in many ways "by ignorant people" after she spoke openly about her illness:

After I came out with my illness, I was selling charcoal and paraffin, and some people wouldn't buy anything from me. They said they would be infected if they bought my things. The owner of the house I was living in chased me away. Other children wouldn't play with mine.145

It is common for people living with AIDS in Kenya, even in the early stages of the disease, to suffer from skin infections over large parts of the body. Several persons living with AIDS told Human Rights Watch that visible skin infections induce an adverse reaction from other people, partly because they do not understand that the infections are not contagious. "I can't even go to the market with my skin like this," said Elizabeth W., age nineteen, a young woman with AIDS. "If you have skin problems, people talk bad about you."146

Since children are such an important target group for HIV/AIDS information, school-based information and education programs have been part of government AIDS strategies in many countries. In 2000, after years of resistance to an HIV/AIDS curriculum in schools, especially on the part of church organizations, the Kenyan Ministry of Education supported by a parliamentary mandate finalized and distributed curricular materials for both primary and secondary schools on HIV/AIDS. These consist of a summary description of the syllabus and some materials on basic facts about HIV/AIDS prepared for primary classes 1-3, 4 and 5, 6-8, and secondary school students. There is also a facilitators guide that lists objectives and main points of the various lessons covered in the class books and notes other resources that teachers can consult.147

Several teachers and headmasters interviewed by Human Rights Watch noted, however, that teachers regarded the guidelines for using the curricular materials as incomplete. "Right now teachers don't know where to begin in using the curriculum," said Francis Kandege, headmaster of Nyanganga Secondary School in Siaya.148 "Teacher training will be the most important thing," he said, and government training on the new curriculum has not yet reached all provinces. One head teacher also noted that, as in many countries, HIV/AIDS is not part of the examinable curriculum in Kenya-that is, the national exams that drive primary and secondary school promotion do not include this material.149 A number of schools visited by Human Rights Watch had informal clubs to combat AIDS that reach some students with information and guidance. The recently published PCA survey of young persons aged thirteen to nineteen in Kenya concluded that teachers were an important source of information on AIDS for students, but not through the government sex education program, which was judged to be virtually non-existent.150

The HIV/AIDS curriculum should be particularly helpful for reducing incidents of abuse and stigmatization in the classroom and at school. Among children interviewed by Human Rights Watch, the few who were able to stay in school after a parent became ill with AIDS were sometimes subject to abuse there. "When our mother was sick and couldn't care for us, all of us had to drop out of school. First we tried to stay in, but when we were irregular in attendance, we were caned [beaten by a teacher] for that," said Rose B., age eighteen, whose mother died in 1999.151 "My children come home from school saying that the other children abuse them because of my illness," said Linda R., an HIV-positive mother in Nairobi.152

Even when all Kenyan schoolchildren are able to benefit from the new curriculum, there will remain the challenge of reaching over 4 million school-age children who are not in school. The PCA survey classified the young persons interviewed as "high-risk" or "low-risk" with respect to HIV transmission based on a number of criteria related to their knowledge and reported behavior. Of those ranked as low-risk, only 1 percent were out-of-school youth. Of those ranked to be at high risk of HIV transmission, 39 percent were school-aged children not in school.153 Comprehensive information on programs for out-of-school youth in Kenya is not available, but this population is clearly both difficult and essential to reach.

There is a need for all available channels of information, including school-based curricula and programs for out-of-school youth, to be put to maximal use with appropriate and clear information on HIV/AIDS prevention, treatment and care. Children and adults alike have a right to "freedom to seek, receive and impart information and ideas of all kinds," as noted in article 19 of the ICCPR, and information on HIV/AIDS is a matter of life and death.

Child Protection Services of the Government of Kenya
The Department of Children's Services of the Ministry of Home Affairs is in charge of coordination of protection services for children in special need. Representatives of NGOs providing services for children in Kenya generally praised the Children's Department for doing what it can but concluded that the AIDS crisis is overwhelming existing services.154 The main professional staff members of the Children's Department are the district-level children's officers whose duties are to identify and arrange services for children in difficult circumstances. They also have a wide range of time-consuming duties related to children in conflict with the law.

Samuel ole Kwallah, director of the Department of Children's Services, said the department's budget has increased substantially over the years, but recognized that resources are still too thin on the ground.155 The Children's Department budget is well less than 1 percent of the national budget.156 For a country in which there are an estimated 1 million orphans and these are only a fraction of the children in need of special protection, there are currently 150 children's officers.157 "In Kenya, the shortage of field officers (i.e. children's officers) is a serious problem. Huge areas still remain without appropriate services," according to a Children's Department document.158 A 1997 UNICEF-supported government survey of children in need of special protection found that 28 percent of these children did not even have an idea where to turn for help.159

The Children's Department has put forward a proposal for a corps of volunteer children's officers to help bridge the gap. The volunteers would have the following duties: (1) supervision and provision of after-care services for children in need of special protection and their families in the community (such as case investigation, home visits, counselling, and providing information); (2) environment adjustment for children in approved schools; and (3) community sensitization and advocacy on the plight of children in need of special protection.160 The proposed volunteer corps will thus be at least somewhat oriented to care and protection as opposed to exclusively serving an enforcement function for children in conflict with the law. In spite of the Children's Department's statement that a system of volunteer children's officers "is well known as the most promising community-based approach [for dealing with children in need of protection] in the world,"161 the sustainability and effectiveness of a system of unpaid volunteers in Kenya in improving care and protection of AIDS-affected children obviously remain in question.

The Children's Department also has a mandate for overseeing residential institutions for children, including orphanages. A study by UNICEF and USAID in 1999 estimated that about 35,000 children, not including those in conflict with the law, were in institutional care in Kenya. At the time, the Children's Department reported that Kenya had sixty-four registered and 164 unregistered residential institutions for children. In Kisumu town, Human Rights Watch encountered numerous informal unregistered orphanages established in the last two years in people's homes. UNICEF and USAID note that while 35,000 represents only 0.3 percent of the population of children under fifteen in Kenya, that proportion is ten times the percentage of children in institutions in neighboring Uganda, for example. Uganda significantly reduced the number of children living in orphanages there from 1992 to 1997 through an aggressive program of enforcing policies on standards of care in orphanages and reuniting children with family members. "Unless Kenya begins a similar approach, the number of children in its institutions can be expected to grow substantially as HIV/AIDS increases the number of orphans," the report concludes.162

The director of the Children's Department said the protection of all categories of children in need of special protection would be greatly assisted by the passage of the Children Bill that was recently sent by the attorney general to parliament. The bill would establish a National Council for Children's Services that would formally involve government ministries and departments outside the Children's Department in the provision of children's services.163 The council would be responsible for planning, policy-making and financing children's "welfare services" as well as programs targeted to children in need of special protection.164 In a related effort, the Children's Department and UNICEF-Kenya have proposed a "multi-sectoral approach to...prevent and control escalating numbers of children in difficult circumstances" in which the council and existing district-level Children's Advisory Committees would play important roles in the identification and addressing of care and protection needs of children.165 When the Children's Advisory Committees were counted as part of a rapid assessment in 1999, they were reportedly active in thirty-nine of Kenya's sixty-seven districts.166

As Samuel ole Kwallah notes, protection of children's rights is a responsibility that goes far beyond the Children's Department. The government's legal and judicial services for children have been widely criticized for focusing almost exclusively on children in conflict with the law and treating children in need of protection as criminals even if they are not in conflict with the law. "The laws that deal with children in Kenya are not meant for the protection of children; they are aimed at dealing with delinquent children. The juvenile court doesn't even pretend to protect children," said Otiende Amollo of KELIN, an observation echoed by other lawyers.167 An ANPPCAN-Kenya study of the legal and judicial systems for children in Kenya noted:

Under existing laws and practices, child law is enforced on the premise of protecting society from the errant child rather than protecting the child from errant members of adult is common for children found roaming the streets to be arrested for no apparent reason....This practice has been justified on the principle that children need care and protection under the Children and Young Persons Act. However, close scrutiny shows that the objective is to "clean up" the streets and not to protect the children.168

This study corroborated many of the conclusions of an earlier report by Human Rights Watch on the treatment of street children in the Kenyan justice system. HRW's report concluded that children in need of special protection are too often classified with disciplinary cases and punished rather than having their protection needs addressed.169

Some observers interviewed by Human Rights Watch said that part of the solution may be the new District Intersectoral AIDS Committees, subcommittees of District Development Committees, which were recently authorized and granted a small budget by parliament. Allan Ragi, director of the Kenya AIDS NGO Consortium, hailed the intersectoral committees as a major breakthrough for dealing at a decentralized level with a wide range of AIDS problems, though he noted that children's issues have been neglected at all levels.170 He reported that between 190 and 200 such committees have been launched at district and sub-district levels. David Otieno, an attorney affiliated with KELIN in Kisumu, noted that, at least in greater Kisumu, it was far too soon to judge whether the intersectoral committees would be an effective mechanism for accelerating attention and resource allocation to AIDS-related problems.171 Members of parliament recently complained that it was impossible to launch the committees in their constituencies because the government had failed to release the funds allocated for the committees' work.172

Finding ways to keep AIDS-affected children in school is central to addressing their concerns. Virtually every AIDS-affected child, all the guardians, and many service providers interviewed by Human Rights Watch mentioned help with school fees as the first thing that should be done to assist children affected by AIDS. Assisting children orphaned by AIDS with school fees is the sole mission of many smaller organizations that have been formed in Kenya in recent years. While primary school is officially free of charge in Kenya, school administrators are allowed to charge various fees, which are sometimes called tuition fees, sometimes construction fees, chalk fees, and so on. Nongovernmental organization experts estimate that over 60 percent of the costs of running schools are actually borne by parents.173 By the government's reckoning, although 30 percent of the national budget goes to education, 80 percent of that sum goes to teacher salaries and the remaining 20 percent is insufficient for other operational expenses of schools, which has led the government to a policy of "cost sharing" with parents.174 ANPPCAN director Elizabeth Owuor-Oyugi said:

We continue to lobby the government for free and compulsory education. Officially there are no school fees, but in reality there are so many levies that turn out to be even more than school fees. In that sense, we almost wish there were school fees which might be more reasonable than the current levies....[Because of AIDS,] we are going to end up with the generation of people who never went to school. Any NGO dealing with AIDS-affected children has to take on this problem at the local and national levels.175

There is no doubt that AIDS-affected children are far from being the only children to be orphaned, withdrawn from school, engaged in hazardous labor, and otherwise in need of special protection. Samuel ole Kwallah observed:

Even before the HIV/AIDS problem, we weren't able to cope. The number of children in need of special protection in the various categories was always too big. Even that number overstretched our capacity, and now there is the big increase of AIDS orphans who have no adult for support.176

Though AIDS is not the only factor that pushes children into situations in which they are in need of special protection, several experts emphasized that in quantitative terms, AIDS-affected children now dominate all categories of children in need of special protection. UNICEF and the Children's Department estimate that 80 percent of all orphans are children orphaned by AIDS.177 AIDS-affected children not yet orphaned probably are overrepresented in the population of school-age children out of school and non-orphaned children on the streets.178 Even if there is no intent to discriminate against AIDS-affected children, their numerical predominance means that they are disparately affected by the inadequacy of services for children at high risk of rights violations.

79 United Nations. Common Country Assessment-Kenya (Nairobi: United Nations, 2000.

80 WHO and UNICEF, Action for Children, p. 52.

81 UNICEF-ESARO, Child workers in the Shadow of HIV/AIDS.

82 Human Rights Watch interview with W.K.K. Kimalat, permanent secretary of the Ministry of Education, Nairobi, March 5, 2001.

83 Government of the Republic of Kenya, National Development Plan, 1997-2001 (Nairobi: Government of the Republic of Kenya, 1996), p.134.

84 Kariuki Waihenya, "Teacher Shortage Biting", The Nation, April 16, 2001.

85 R. Conroy, A. Tomkins, R. Landsdown, and M. Elmore-Meegan "AIDS Orphans, an Emerging Problem: A Study of 5206 Orphaned Children" (summary presentation, January 2001).

86 Human Rights Watch interview, Korogocho (Nairobi), March 15, 2001.

87 Human Rights Watch, Juvenile Injustice: Police Abuse and Detention of Street Children in Kenya (New York: Human Rights Watch, 1997).

88 Human Rights Watch interview, Kisumu, February 28, 2001.

89 Human Rights Watch interview, Kisumu, February 28, 2001. "Living positively" is a phrase often used in Kenya by HIV-positive persons struggling to continue their lives in spite of their illness. In this case, the expression was used by a person who was not infected to describe her effort to remain HIV-negative.

90 Human Rights Watch interview with Elizabeth Owuor-Oyugi, director, ANPPCAN-Kenya, Nairobi, March 9, 2001.

91 International Labour Organization Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour (ILO Convention No. 182); Convention 182 ratification map on

92 Human Rights Watch interview with John Mburu, Kariobangi, March 19, 2001.

93 Human Rights Watch interview with Joab Othatcher, director, TEMAK, Kisumu, February 27, 2001.

94 Human Rights Watch interview with Samuel K, age fifty-three, Siaya, March 6, 2001.

95 TEMAK. Violation of Basic Needs and Basic Rights of Domestic Workers in Kisumu: Report of a Rapid Study (Kisumu: TEMAK, November 2000).

96 UNICEF, "Child Domestic Work," Innocenti Digest no. 5 (Florence: Innocenti Research Centre, 1999).

97 UNICEF-ESARO, Child workers in the shadow of HIV/AIDS, pp. 30-38.

98 Convention on the Rights of the Child, art. 18(1).

99 Kenya has not ratified ILO Convention No. 182 on the worst forms of child labor, which would require it to take "immediate and effective measures to secure the prohibition and elimination" of "work which, by its nature or the circumstances in which it is carried out, is likely to harm the health, safety or morals of children," among other categories of child labor. See ILO Convention No. 182, arts. 1, 3. As a state party to the ICCPR and the Convention on the Rights of the Child, however, Kenya has accepted international responsibility to provide children with the broader protective measures required by those treaties.

100 See Convention on the Rights of the Child, arts. 24(1), 2, 28.

101 Human Rights Committee, General Comment 17, Rights of the Child (Art. 24), para. 3, 1989.

102 Human Rights Watch interview, Central Province, March 16, 2001.

103 Human Rights Watch interview, Korogocho, March 15, 2001.

104 Human Rights Watch interview with John Mburu, ActionAID-Kenya, Kariobangi, March 19, 2001.

105 Johnston, Ferguson, and Akoth, Profile of Adolescent AIDS Orphans, pp. 62-63.

106 Human Rights Watch interview, Central Province, March 16, 2001.

107 Human Rights Watch interview with Marian M., Central Province, March 16, 2001. Pendekezo Letu, a nongovernmental organization that recognizes the importance of keeping children together, was in the early stages of offering assistance to Marian M., including support for vocational training for Philip, that might enable both children to live with her.

108 Human Rights Watch interview, Korogocho, March 15, 2001.

109 Human Rights Watch interviews with Ambrose D.O. Rachier, Nairobi, February 26, 2001, and Millie Odhiambo, director, CRADLE, New York, April 23, 2001.

110 "AIDS Patient Dies Before Filing Suit," Panafrican News Agency, April 4, 2001.

111 Law of Succession Act of 1981, § 41. The court appoints the legal guardian or another individual to administer the estate under a procedure outlined in section 7 of the Fifth Schedule to the act.

112 Law of Succession Act of 1981, § 45(1).

113 Human Rights Watch interview with Eric Ogwang, director, Children's Legal Action Network (CLAN), Nairobi, March 8, 2001.

114 Human Rights Watch interviews with Ambrose D.O. Rachier, February 26, 2001, and Millie Odhiambo, April 23, 2001.

115 Human Rights Watch interview, March 15, 2001.

116 Human Rights Watch interview, Kibera (Nairobi), March 13, 2001.

117 Human Rights Watch interview with Ambrose D.O. Rachier, February 26, 2001.

118 Human Rights Watch interview, Rachuonyo, March 5, 2001.

119 Human Rights Watch interview, Obunga (Kisumu), March 3, 2001.

120 Human Rights Watch interview, March 3, 2001.

121 Human Rights Watch interview with Millie Odhiambo, April 23, 2001. The Government of Kenya estimates that about 30 percent of births are registered annually, and these are mostly in urban areas. Children whose births are not registered are unlikely to be able to obtain birth certificates. See Government of the Republic of Kenya, First Kenya Country Report on the Implementation of the U.N. Convention on the Rights of the Child, p. vi.

122 Human Rights Watch interview with Eric Ogwang, March 8, 2001.

123 Human Rights Watch interview with Jane Ndaisi Kwinga, attorney, CRADLE, Nairobi, March 8, 2001.

124 Human Rights Watch interview, Kisumu, March 3, 2001.

125 Human Rights Watch interview with an NGO-based attorney who requested anonymity.

126 Human Rights Watch interview with David Otieno of David Otieno & Co. Advocates, a member of the Kenya Ethical and Legal Issues Network on HIV/AIDS, Kisumu, March 3, 2001.

127 Human Rights Watch interview with Ambrose D.O. Rachier, February 26, 2001.

128 Human Rights Watch interview with Jedida Nyongesa, executive director, Child Welfare Society of Kenya, Nairobi, March 8, 2001.

129 Human Rights Watch interview with Elizabeth Owuor-Oyugi, director, African Network for Prevention and Protection from Child Abuse and Neglect (ANPPCAN) Kenya Office, Nairobi, March 9, 2001.

130 Human Rights Watch interview with the Honorable Lady Justice Effie Owuor, Court of Appeals, Nairobi, March 14, 2001.

131 ANPPCAN Kenya, Children in the Dock: A Situation Analysis of the Juvenile Justice System in Kenya (Nairobi: ANPPCAN, 1998), p.4.

132 Human Rights Watch interview with Millie Odhiambo, April 23, 2001.

133 Human Rights Watch interview with the Honorable Lady Justice Effie Owuor, March 14, 2001.

134 None of the legal and judicial experts interviewed by Human Rights Watch knew the timetable of the court's expansion, though most were confident that there would be an expansion. Attempts to get this information from the Ministry of Justice were not successful. A recent editorial in a prominent national newspaper indicated that sixteen magistrates have been identified for posting outside Nairobi to hear cases for the family court, but these branch courts have not yet opened for business. See "Family Courts a Judicial Milestone"(editorial), The Nation (Nairobi), May 9, 2001.

135 Human Rights Watch interview with Millie Odhiambo, April 23, 2001.

136 See Rachel Hodgkin and Peter Newell, Implementation Handbook for the Convention on the Rights of the Child (New York: UNICEF, 1998), p.28; Convention on the Rights of the Child, art. 2(2).

137 See ibid., arts. 24 and 28.

138 Government of the Republic of Kenya Central Bureau of Statistics and Macro International, Inc., Demographic and Health Survey 1998 (Calverton, Maryland: Macro International, 1999).

139 Ibid., p. 73.

140 Johnston and Muita, Adolescent Love in the Time of AIDS.

141 Human Rights Watch interview with Jacqueline K., twenty-six, Kisumu, February 28, 2001.

142 Human Rights Watch interview with Claire S., Kisumu, February 28, 2001.

143 Human Rights Watch interview with Jane A., thirty-nine, a person living with AIDS and the guardian of six orphans and two of her own children, Nairobi, March 13, 2001.

144 Human Rights Watch interview with Linda R., Kibera (Nairobi), March 13, 2001.

145 Ibid.

146 Human Rights Watch interview, Kisumu, March 1, 2001.

147 Republic of Kenya, Ministry of Education, Science and Technology, "AIDS Education Syllabus for Schools and Colleges" Nairobi, December 1999.

148 Human Rights Watch interview, Siaya, March 6, 2001.

149 Human Rights Watch interview with Thomas Otieno Onguru, head teacher, Kosele Primary School, Rachuonyo, March 5, 2001.

150 Johnston and Muita, Adolescent Love in the Age of AIDS, p.18.

151 Human Rights Watch interview, Kisumu, March 1, 2001.

152 Human Rights Watch interview, Kibera (Nairobi), March 13, 2001.

153 Johnston and Muita, Adolescent Love in the Age of AIDS, p.42.

154 See, e.g., Human Rights Watch interview with Dr. Angelo D'Agostino, S.J., director, Nyumbani Home for Children, Nairobi, March 12, 2001.

155 Human Rights Watch interview with Samuel ole Kwallah, director, Children's Department, Ministry of Home Affairs, Nairobi, March 13, 2001.

156 Government of the Republic of Kenya, "First Kenya Country Report on the Implementation of the U.N. Convention on the Rights of the Child," Nairobi, 2000, p.15.

157 Ibid., p. 63. The government report to the Committee on the Rights of the Child also refers to a UNICEF-supported exercise to identify children in need of special protection in 1997 that found about 110,000 such children, but the exercise covered only thirteen of Kenya's sixty-seven districts. Ibid., p.62.

158 Government of the Republic of Kenya, Ministry of Home Affairs, Heritage and Sports, Department of Children's Services, "Introduction of the Volunteer Children's Officer (VCO) System in Kenya" (unpublished paper), 2001.

159 "First Kenya Country Report," p.63.

160 Ibid. In a separate document, children in need of special protection are defined as those in "situations including physical, economic or sexual exploitation and abuse, violence, harmful traditional practices, deprivation of family environment, childhood disability, inappropriate laws and unlawful judiciary practices, as well as deprivation of appropriate care and development opportunities, including nutrition and access to health and education." See Government of the Republic of Kenya and UNICEF-Kenya, "The Kenya Socio-cultural and Economic Reintegration Model for Children in Need of Special Protection and Implementation Guidelines (unpublished paper), February 2001. Approved schools, also referred to in the proposed volunteer duties, are correctional institutions under the administration of the Children's Department to which children ten years old and above may be committed by the courts.

161 Ibid.

162 Donohue et al., "Children Affected by HIV/AIDS in Kenya." 

163 Government of the Republic of Kenya, "Children Bill 2001," Kenya Gazette, Supplement no. 18, March 16, 2001.

164 Ibid., section 29.

165 Department of Children's Services and UNICEF-Kenya, "The Kenya Socio-Cultural and Economic Reintegration Model."

166 Donohue et al., "Children Affected by HIV/AIDS in Kenya," p. 6.

167 Human Rights Watch interview with Otiende Amollo, February 26, 2001. Echoed in Human Rights Watch interviews with Eric Ogwang, March 8, 2001, and Millie Odhiambo, April 23, 2001.

168 ANPPCAN Kenya, Children in the Dock, p.4.

169 Human Rights Watch, Juvenile Injustice, p.3.

170 Human Rights Watch interview with Allan Ragi, director, Kenya AIDS NGO Consortium, Nairobi, February 22, 2001.

171 Human Rights Watch interview with David Otieno of David Otieno & Co. Advocates, Kisumu, March 3, 2001.

172 Odhiambo Orlale, "Sh 7.6 Billion Pledged for Fight Against AIDS," The Nation, April 18, 2001.

173 Human Rights Watch interview with Patricia Hari, Save the Children-UK, Nairobi, March 19, 2001.

174 "First Kenya Country Report", p.15.

175 Human Rights Watch interview with Elizabeth Owuor-Oyugi, ANPPCAN-Kenya, Nairobi, March 9, 2001.

176 Human Rights Watch interview with Samuel ole Kwallah, March 13, 2001.

177 Department of Children's Services and UNICEF, "The Kenya Socio-Cultural and Economic Reintegration Model," section 2.1, p. 17.

178 Donohue et al., "Children Affected by HIV/AIDS in Kenya," p. 4.

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