VI. LEGAL BACKGROUND

Kenyan Law

HIV/AIDS is not mentioned in Kenyan law other than in the public health statutes, in which it is mandated to be a reportable illness-that is, health providers are meant to report to the public health authorities all cases of it that they encounter. (In most developing countries where HIV/AIDS is subject to mandatory reporting, gross underreporting is thought to exist, and Kenya is no exception.)¹⁷⁹

The Kenyan constitution contains broad protections against discrimination based on "race, tribe, place of origin or residence or other local connexion, political opinions, colour, creed or sex."¹⁸⁰ Although HIV/AIDS-related discrimination is not explicitly mentioned, lawyers who have worked on legal protections for persons with AIDS in Kenya believe that the constitution protects against this discrimination. They note, however, that such discrimination cases are unlikely to be brought to the Kenyan courts because of the stigma still associated with the illness.¹⁸¹

Most of the laws having to do with protection of children's rights in Kenya date from well before the development of the Convention on the Rights of the Child or the African Charter on the Rights and Welfare of the Child of 1990. The Children and Young Persons Act of 1964 establishes legal penalties for anyone who has the custody of a "child or juvenile"-that is, a child up to age sixteen years:

who...wilfully assaults, ill-treats, neglects, abandons or exposes him or causes or permits him to be assaulted, ill-treated, neglected, abandoned or exposed, in any manner likely to cause him unnecessary suffering or injury to health (including injury to or loss of sight, hearing, limb or organ of the body, and any mental derangement); or by any act or omission, knowingly or wilfully cause that child or juvenile to become, or conduces to his becoming, in need of protection and discipline (Section 23).

Aside from this provision, the Children and Young Persons Act focuses on the treatment of children in conflict with the law and not those in need of care and protection.

There are relatively few explicit provisions in Kenyan law for protection of orphans, possibly because the current law was written before the explosive increase in the number of orphans in the last decade. The Law of Succession Act of 1981 details procedures for the inheritance of property by surviving children with or without the presence of a surviving parent. It provides in section 26 for the right of dependent children or someone acting on their behalf to apply to the court for redress in cases where "reasonable provision" has not been made for those children. It also outlines the need to ensure trusteeship of property of a surviving child until he or she reaches the age of eighteen years where the trustee should be "appointed by a court of competent jurisdiction".¹⁸²

The Children Bill of 2000, later issued in a second reading as the Children Bill of 2001, was meant to reflect the full range of protections in the Convention on the Rights of the Child, according to its introductory statement.¹⁸³ The bill was scheduled to be considered by the Kenyan parliament after hearings in June 2001. It retains a major focus on issues related to children in conflict with the law but suggests greatly expanded consideration of the "protection and care" of children more generally, including children in need of foster care. Its sections making explicit the right to health care, education, protection from child labor and armed conflict, protection from harmful cultural rites, and protection from sexual abuse and exploitation are new elements in Kenyan law.¹⁸⁴

International Law

Kenya ratified the Convention on the Rights of the Child in 1990 and recently submitted its first implementation report after a seven-year delay.¹⁸⁵ It has also ratified, the ICCPR, the International Covenant on Economic, Social and Cultural Rights, and the Convention on the Elimination of All Forms of Discrimination against Women.

Guidelines and Statements on HIV/AIDS from U.N. Human Rights Bodies

There is no international human rights law explicitly addressing HIV/AIDS. Articles 2 and 26 of the International Covenant on Civil and Political Rights and article 2 of the Convention on the Rights of the Child all provide protection from discrimination on the grounds of race, color, sex, and other explicit characteristics, "or other status". In its reviews of national reports, the Committee on the Rights of the Child has recognized children affected by HIV/AIDS and children of parents with HIV/AIDS among the categories of children covered by the protections against discrimination under article 2 of the convention.¹⁸⁶ At its fifty-third meeting in 1995, the U.N. Commission on Human Rights concluded that "discrimination on the basis of AIDS or HIV status, actual or presumed, is prohibited by existing international human rights standards" in that the term "or other status" in international human rights instruments (including the ICCPR and the Convention on the Rights of the Child) "can be interpreted to cover health status, including HIV/AIDS."¹⁸⁷

In 1998, the office of the U.N. High Commissioner for Human Rights and the Joint U.N. Programme on HIV/AIDS (UNAIDS) issued "HIV/AIDS and Human Rights: International Guidelines," which do not have the force of international law but provide many concrete suggestions for governments wanting to incorporate in national law and policy human rights protections related to HIV/AIDS.¹⁸⁸ The International Guidelines have been accorded considerable weight by the Commission on Human Rights and other U.N. human rights institutions. The guidelines cover discrimination in detail and issues related to confidentiality in HIV testing and partner notification as well as criminal laws related to HIV/AIDS. Guideline 8, which outlines protections for women and children, emphasizes protection of children from mandatory testing, discrimination and abandonment, and the right of children to access to information on HIV/AIDS and to means of prevention of HIV transmission. The guidelines are explicit in their recognition of improved social status for women as a necessary condition for protection of women's and children's rights with respect to HIV/AIDS, echoing a statement from a 1995 Commission on Human Rights resolution calling upon states to "advance the legal, economic and social status of women, children and vulnerable groups...to render them less vulnerable to the risk of HIV infection."¹⁸⁹

The link between HIV/AIDS and human rights of children has been noted in other statements by U.N. human rights bodies (with reference to all countries, not only Kenya). The general comment on the right to education by the Committee on the Rights of the Child notes that "children with HIV/AIDS are also heavily discriminated against in both types of settings [formal and non-formal education]" and judges this discrimination to be in violation of article 29 of the CRC.¹⁹⁰ The Committee also issued a series of recommendations based on its theme day discussion on HIV/AIDS and children at its 19^th session in 1998. Among these are that "access to information as a fundamental right of the child should become the key element in HIV/AIDS prevention strategies," and that urgent attention be paid to "the ways in which gender-based discrimination places girls at higher risk in relation to HIV/AIDS."¹⁹¹

International Law on Relevant Child Protection Issues

Protection of children, especially orphans and vulnerable children, is explicit in a number of human rights instruments. Article 24 of the ICCPR ensures a child "the right to such measures of protection as are required by his status as a minor." Article 20 of the Convention on the Rights of the Child ensures "special protection and assistance" for a child "temporarily or permanently deprived of his or her family environment," including "alternative care for such a child." "Placement in suitable institutions for the care of children" is a possibility allowed for in article 20. Protection of all children against "all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation including sexual abuse" is guaranteed in article 19.

African Human Rights Instruments

The formulation of the African Charter on Human and Peoples' Rights predates the AIDS era, as it was drafted in the late 1970s. The African Charter on the Rights and Welfare of the Child, which entered into force in November 1999, does not mention AIDS explicitly. It contains many of the protections contained in the Convention on the Rights of the Child. Where the convention refers to "a child temporarily or permanently deprived of his or her family environment", the charter refers to "a child who is parentless or who is... deprived of his or her family environment", but the protections noted are otherwise similar.¹⁹² Article 16 of the charter refers to protection of children from "all forms of torture, inhuman or degrading treatment and especially physical or mental injury or abuse, neglect or maltreatment including sexual abuse." Both these African charters contain anti-discrimination provisions with wording similar to those in the international instruments.¹⁹³

Kenya ratified the African Charter on the Rights and Welfare of the Child in July 2000 and ratified the African Charter on Human and Peoples' Rights in 1992.¹⁹⁴

¹⁷⁹ UNAIDS, "Epidemiological Fact Sheet on HIV/AIDS and Sexually Transmitted Infections - Kenya"

¹⁸⁰ Constitution of Kenya, rev. ed. 1998, chapter V, section 82.

¹⁸¹ For example, Human Rights Watch interview with Ambrose D.O. Rachier, February 26, 2001.

¹⁸² Law of Succession Act, subsidiary rules section 32.

¹⁸³ Children Bill, Kenya Gazette Supplement No. 18 (Bills No. 4), March 2001, p. 146 (commencement to the bill).

¹⁸⁴ Ibid., part II.

¹⁸⁵ First Kenya country report on the implementation of the CRC.

¹⁸⁶ Hodgkin and Newell, Implementation Handbook for the Convention on the Rights of the Child, p.28.

¹⁸⁷ Commission on Human Rights, "The Protection of Human Rights in the Context of Human Immunodeficiency Virus (HIV) and Acquired Immune Deficiency Syndrome (AIDS)" (Resolution 1995/44, adopted without a vote, March 3, 1995.

¹⁸⁸ Office of the United Nations High Commissioner for Human Rights and the Joint United Nations Programme on HIV/AIDS, "HIVAIDS and Human Rights - International Guidelines" (from the second international consultation on HIV/AIDS and human rights, 23-25 September 1996, Geneva), U.N. Doc. HR/PUB/98/1, Geneva, 1998.

¹⁸⁹ Commission on Human Rights, Resolution 1995/44, p.2.

¹⁹⁰ United Nations High Commissioner for Human Rights, Committee on the Rights of the Child, general discussion on "Children living in a world with HIV/AIDS", September 21 - October 9, 1998.

¹⁹¹ Ibid., p.9.

¹⁹² African Charter on the Rights and Welfare of the Child, arts. 25(2) and 16, OAU Doc. CAM/LEG/24.9/49, 1990. articles 25(2) and 16.

¹⁹³ Ibid., article 3, and African Charter on Human and Peoples' Rights, art. 2, OAU Doc. CAB/LEG/67/3 rev.5, 21 I.L.M.58, 1982.

¹⁹⁴ See ratification information posted to University of Minnesota Human Rights Library Web site, http://www1.umn.edu/humanrts/instree/ratz1afchr.htm; facsimile message from Ben Kioko, legal counsel a.i. of the Organisation of African Unity, to the Children's Rights Division, Human Rights Watch, September 22, 2000 (OAU ref. No. CAB/LEG/24.9/113/vol.III).