The New York Times - Saturday, January 10, 2004
Marc Lacey

An American priest who runs East Africa's largest orphanage for AIDS-affected children won a court battle yesterday that will force the Kenyan government to admit 72 children from the home into public schools.

The priest, the Rev. Angelo D'Agostino, from Providence, R.I., took the Kenyan government to court after several public schools had refused to admit students from the orphanage, a modern facility near Nairobi that is heavily supported by Americans.

High Court Judge Martha Koome approved an agreement yesterday between the Ministry of Education and the orphanage, Nyumbani Children's Home, which will allow H.I.V.-infected children to attend government schools.

The schools that had blocked the youngsters are in the wealthy Karen neighborhood outside Nairobi. One school that had blocked the students immediately agreed to admit four youngsters.

Father D'Agostino said school officials had come up with excuses to deny the children access, like saying they were already full. The lawyer for the orphanage, Ababu Namwamba, called the decision "a resounding victory for life, liberty and justice over prejudice, stigma, fear."

Kenya's new president, Mwai Kibaki, made free primary-school education a key pledge in his campaign last year. Since eliminating school fees that kept many poor children at home, schools have been flooded with new pupils.

Mr. Kibaki has also spoken out on the need to avoid discrimination against Kenyans with H.I.V., the virus that causes AIDS. An estimated 400 Kenyans die daily from the disease. The government has poured significant resources into testing centers to encourage Kenyans to determine their medical status, but fear of stigma compels many to avoid tests or keep infections secret.

Lawyers for Nyumbani argued that school officials were using H.I.V. status as a factor in determining which pupils to admit.

In court, John Gacivih, a government lawyer, denied there was such a policy. He said that education officials were willing to accommodate the children "subject to the availability of space in the respective schools and creation of physical facilities."

At Nyumbani, all the children are infected and a small cemetery behind the playground is a reminder that AIDS is fatal.

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