Yesterday, High Court Judge Martha Koome was told the Education Ministry and the Nairobi City Council was denying abandoned and orphaned HIV positive children their fundamental right to education. The action was described as illegal, inhuman, discriminatory and unconstitutional.

Lawyer Ababu Namwamba argued that some Nairobi school heads and committees had refused to take in 41 children from the Home by "placing irrelevant obstacles" on their path.

School officials allegedly refused to admit the children on considerations such as their HIV status, age or lack of identification documents.

Mr Namwamba pushed to have an interim order issued against the government, declaring the refusal illegal.

The Home had wanted the court to declare education a fundamental human right for all which should not be denied to any child.

Denying Nyumbani children admission to public schools shut them out of free primary education, undermining government policy.

Mr Namwamba demanded that all children who have been previously rejected by the schools on "the spurious grounds" be admitted.

But state lawyers John Gacivih and Rosemary Owino denied claims of discrimination, arguing it was not a government policy.

"I am also a parent and I do also adopt children; we should not make a big deal out of it unless somebody wants to take advantage of the children's situation," said Mr Gacivih, an assistant director of public prosecution.

Mr Gacivih and Ms Owino, a principal State counsel, asked for more time to find an amicable solution to the problem, away from the courts.

Mr Gachivih said the government was willing to accommodate the children "subject to the availability of space in the respective schools and creation of physical facilities."

There was heated exchange between Mr Gacivih and Mr Namwamba before they finally agreed to a suggestion by the judge that they meet today with education officials.

Lady Justice Koome asked them to met City Hall's director of education and representatives from the children's home and report to the court tomorrow.

She said there was need for an amicable solution which would not stigmatise the children.

"It is in the best interest of the children that you hold a meeting and see how best to resolve the issue amicably as the children's welfare should be at the forefront".

Nyumbani sought to have the court declare that any school official's who denied the children admission had breached the Constitution, the Children's Act and offended universal laws on the rights of a child.

Nyumbani general manager Protus Lumiti said virtually all head teachers and education officials of public schools in the Home's Karen neighbourhood had shown open discrimination against the children.

St Mary's Karen, Karen C and Ngong Forest primary were named as the schools "whose conduct displays adamant and unreasonable refusal to admit any child who is living with HIV."

He said whenever Nyumbani sought admission for its children, the head teachers said they would have to consult with other officials, a condition not applied to any person or group.

He said he had written to the education ministry and Nairobi City Council but they had failed to take any action.

Scientific research and medical records had proved that children living with HIV could be normal and healthy and presented no risk to others, the schools continued to deny them access claiming classes were full.

Mr Lumiti argued the home could save the over Sh1 million it spends to take the 41 children to private schools.

Earlier, Ms Owino had asked for more time to obtain a response from the Education minister.

Source: AllAfrica.com