Realising the Right to Education for Children Infected and Affected By HIV/AIDS in South Africa

Abstract: It has been over 25 years since the AIDS epidemic was first recognised. HIV/AIDS has claimed more lives in South Africa than in any other country in the world. The pandemic has devastating impacts on society. Children infected or affected by the virus are hit particularly hard and the AIDS pandemic negatively affects children and their human rights in numerous ways: physically, emotionally and economically. This thesis explores the issue of equal access to education for children infected or affected by HIV and AIDS in South Africa. South Africa has, under both international and domestic legal instruments, undertaken to guarantee everyone the right to basic education without discrimination of any kind. The South African government is not only under a negative duty to ensure the realisation of the right to basic education, but also under a positive duty. Hence, the government is not only required to refrain from interfering with a child's exercise of his or her right to education, but is also under an obligation to act and remove obstacles to ensure that the right to education is realised. During a ten week minor field study conducted in South Africa, in spring 2009, it was observed that despite legal protection and policy documents ensuring fair treatment of children infected or affected by HIV/AIDS, this group of learners still encounter significant obstacles hindering them from equal access to schooling. This thesis identifies and, with the backdrop of existing legal protection, discusses obstacles of social, financial and practical nature. This thesis ultimately argues that the significant problem in the context of equal access to education for learners infected or affected by HIV/AIDS is not primarily a matter of deficient legal protection, even though the law admittedly could benefit from a higher level of progression and elaboration, but rather the implementation of the law. It is essentially argued that a satisfactory functioning of the legal provisions intended to ensure equal access to education for children are hindered by specifics founds in the South African context. It is reasonable to assume that the discrepancy between the protection offered through various relevant international and domestic legal provisions, and the reality of vulnerability and discrimination of children infected or affected by HIV/AIDS in South African schools, is a complex riddle that is caused by various factors&semic a riddle that does not lend itself to easy solutions or remedies. However, the final chapter of this thesis provides a brief analytical discussion on the authors' view of possible ways forward, to counteract the de facto discrimination of children infected or affected by HIV/AIDS in South Africa, preventing their right to equal access to education.