HIV/AIDS AND DISCRIMINATION IN SCHOOLS

Issued by: SA Communication Service

MEDIA STATEMENT BY THE SOUTH AFRICAN LAW COMMISSION ON ITS INVESTIGATION INTO ASPECTS OF THE LAW RELATING TO AIDS (PROJECT 85) - HIV/AIDS AND DISCRIMINATION IN SCHOOLS

The South African Law Commission has released a discussion paper on HIV/AIDS and discrimination in schools for general information and comment. The Commission has been assisted in this task by a project committee representative of divergent interests under the leadership of Mr Justice Edwin Cameron.

In its Working Paper 58, released in 1995, the Commission made preliminary recommendations on HIV/AIDS in schools based on the negligible risk of transmission of HIV in the school setting and the principle of non-discrimination enunciated in the 1993 interim Constitution. The Commission at the time emphasised the lack of a uniform national policy dealing with the issue of HIV/AIDS in schools. The responses received to these preliminary recommendations were generally supportive. They reflected a large measure of consensus on the need for, and contents of, a national policy on HIV/AIDS for schools.

The recent well-publicised crisis caused by the application by Nkosi Johnson, an eight-year-old boy with AIDS, to be admitted to a public school in Johannesburg, the reaction of some members of the public and the apparent lack of a national education policy on this issue, underscore the lesson that the situation has not improved since 1995. This despite the fact that the South African Schools Act, which gives effect to the spirit and letter of the final Constitution, was passed in 1996.

Since the Nkosi Johnson incident and in view of the Commission's initial recommendations, the project committee has offered the Department of Education its assistance in advancing resolution of the matter. The present proposals and policy have been developed in a joint consultative process with the Department. The Department will also be included in the project committee's work when comment on these proposals is processed and final recommendations are formulated.

The project committee is of the view that a precisely directed and clearly targeted policy would create legal certainty and help prevent injustice to learners with HIV. If thus provisionally recommends the adoption of a national policy on HIV/AIDS in schools that will constitute a set of basic principles from which the governing bodies of schools may not deviate. Provision is made for the governing body, in addition, to adopt an HIV/AIDS school-level policy to give operational effect to the national policy. The school-level policy may reflect the needs, ethos and values of the specific school and community, though it may not deviate from the national policy's basis principles. In the absence of a school-level policy the national policy will apply.

The proposed policy - which would apply to public as well as independent schools - includes the following principles:

• Compulsory testing of learners as a prerequisite for admission to any school, or any unfair discriminatory treatment (for instance by refusing continued school attendance solely on the basis of the HIV status of the learner), is not justified.
• However, it is recognised that special measures in respect of learners with HIV may be necessary. These must be medically indicated or in the learner's best interests.
• Learners' rights in respect of privacy are confirmed. Where AIDS-related information is disclosed to the educational authorities, the policy provides that, except where statutory or other legal authorisation exists, it may be divulged only with the written consent of the learner (if above the age of 14 years) or in other cases with that of his or her parent or guardian.
• The needs of learners with HIV should, as far as is reasonably practicable, be accommodated within the school environment.
• All learners have a right to be educated on AIDS, sexuality and healthy lifestyles in order to protect themselves against HIV infection. The policy recognises the need for consultations with parent communities in order to ensure that sexuality education will accord with the community ethos and values. The policy requires that information be given in an accurate and scientific manner.

Universal precautions should be implemented by all schools to further minimise the negligible risk of transmission of HIV in the educational setting. The policy contains specific provisions on participation in contact sports.

A draft policy including the above principles is attached to the discussion paper for comment. The issues in question need to be debated thoroughly and all parties who feel that they have an interest in this matter or may be affected by the measures proposed are invited to comment on the preliminary recommendations made. The project committee will especially welcome comment on whether the proposed national policy should also apply to school hostels, and if so, whether additional policy measures are necessary.

Written comments or suggestions should reach the Commission by 30 September 1997 at the address given below. The discussion paper is available on request and free of charge.

The Commission's offices are on the Eighth Floor, 228 Visagie Street, Pretoria. The telephone number is (012) 322-6440 (requests for the discussion paper: Mrs P Kotze); the fax number is (012) 320-0936; and the postal address is Private Bag X668, Pretoria, 0001; E-mail: lawcom@salawcom.org.za. The document is also available on the Internet at www.law.wits.ac.za/salc/salc.html.

ISSUED BY THE SECRETARY, SA LAW COMMISSION, PRETORIA

DATE: 15 AUGUST 1997

CONTACT FOR ENQUIRIES ABOUT MEDIA STATEMENT: (MRS) AM HAVENGA (021) 322-6440.