PPT

19PART TWO: Meaningful access to basic education

I n South Africa, the right to education is guaranteed by

section 29 of the Bill of Rights in the Constitution.

Broader constitutional values and principles also support

rights within and rights through education. Government is

obliged to pass laws, develop policies and establish pro-

grammes that “protect, respect, promote and fulfil” the right

to education. The right to education is thus justiciable and

government can be challenged in court if it fails to meet its

constitutional obligations.

Claims about human rights also extend beyond legislation

and jurisprudence. International declarations, national legis-

lation and policies do not necessarily translate into actual

rights on the ground, and many children struggle to realise

their right to education both within and outside the classroom.

In this context, human rights play an essential role as moral

imperatives and political resources that can enable people to

stand up for their rights and hold the State accountable.

This essay focuses on:

� What is meant by the right to basic education?

� What is the relationship between children’s right to

education and their other rights?

� What are the State’s obligations regarding children’s right

to basic education?

� Why is ongoing public debate about rights important?

What is meant by the right to basic education?

Education is a human right. This means that there is a universal

moral imperative for all people, irrespective of citizenship or

national legislation, to have opportunities for formal education.

This moral conception of human rights underpins interna-

tional conventions such as the UN Declaration of Human

Rights (1948), which recognises the right to education, together

with other rights, as essential in promoting world peace and

democracy.

Human rights are universal and all human beings are equal

as rights-holders. The moral significance of human rights

does not vary with local legislation or according to whose

rights are at stake. Where a government or any of its agencies

or agents violates or disregards the moral rights of the people

it governs, it is what Thomas Pogge calls “official disrespect”.

In South Africa, education is also a justiciable constitutional

right. The Bill of Rights binds all three arms of government to

give effect to the right to education. Government can thus be

held accountable through the courts for failing to meet its

obligations regarding education.

The constitutional right to education

Section 29(1)(a) of the Bill of Rights in the Constitution estab-

lishes the right to basic education — for both adults and

children — as an immediate right unqualified by any limitation

related to progressive realisation. Fulfillment of the right

places both positive and negative obligations on the State. The

positive obligation requires government to take active steps to

ensure that every child has access to educational facilities and

enjoys the right to education. The negative obligation means

that government and its agencies (such as public schools)

should not impede children’s access to education.

In addition, section 29(1)(b) establishes the right to further

education, which the State must “through reasonable

measures” make “progressively available and accessible”.

This essay focuses on children’s rights to, in and through

basic education (see figure 1 on p. 21). Currently, basic edu-

cation for children in South Africa comprises compulsory school

enrolment for the full General Education and Training (GET)

band from grade R to grade 9, or from 7 to 15 years of age,

whichever is reached first. While the reception year (grade R)

is not yet compulsory, the Department of Education aims to

make grade R available to all five-year-olds by 2010.

Language rights go hand-in-hand with the right to educa-

tion. Section 29(2) of the Bill of Rights states that everyone

who attends a public school also has a constitutional right to

receive education in the official language or languages of their

choice, where this is “reasonably practicable”. This recognises

South Africa’s linguistic diversity and aims to redress historical

discriminatory practices, but it does not affirm an unqualified

right to first language instruction.

In keeping with the constitutional rights to freedom of

association, belief, culture and religion, section 29(3) assures

the right for everyone to establish independent educational

Children’s right

to basic education

Lori Lake and Shirley Pendlebury (Children’s Institute)

20 SOUTH AFRICAN CHILD GAUGE 2 0 0 8 / 2 0 0 9

institutions, provided that they do not discriminate on the

basis of race; are registered with the Department of

Education; and maintain appropriate standards.

The Constitution does not specify the content of the right,

but section 39 states the requirements for interpreting consti-

tutional rights, including the right to education. The interpre-

tation must “promote the values that underlie an open and

democratic society based on human dignity, equality and

freedom” and must consider international law.

International law

Most international conventions offer similar definitions of the

right to education and commonly recognise two main aspects

of the right: the purpose and process of education.

For example, the International Covenant on Economic and

Social Rights (1966) requires education to “be directed to the

full development of the human personality and its sense of

dignity; strengthen respect for human rights and fundamental

freedoms; enable all persons to participate effectively in a free

society; promote understanding, tolerance and friendship

among all nations and all racial, ethnic and religious groups;

and further the activities of the United Nations for the mainte-

nance of peace”.

A similar broad purpose statement appears in article 29 of

the UN Convention of the Rights of the Child (1989), and is

elaborated in General Comment No. 1 of the UN Committee

on the Rights of the Child. The Dakar Framework for Action:

Education for All (2000) is more specific. Goal Six is to improve

every aspect of the quality of education so that “recognised

and measurable learning outcomes are achieved by all,

especially in literacy, numeracy and essential life skills”.

International conventions also outline a number of common

elements in terms of process, including: non-discriminatory

access to public educational institutions and programmes;

compulsory, free primary education for all; free choice of

education; minimum standards and a transparent, effective

monitoring system.

The 1999 UN Committee on Economic, Social and Cultural

Rights (CESCR) General Comment No. 13 provides further

guidelines for interpreting the right to education and calls for

basic education to be available, accessible, acceptable and

adaptable (see the box on the right ).

What is the relationship between the right to

education and other rights?

Rights are interdependent and the right to education should

therefore be interpreted in the context of the full Bill of Rights.

The rights to equality (section 9) and human dignity (section

10) set the ethical standards for a democratic system of

education in which every child — regardless of race, gender,

culture, language, religion, ability or disability — is equally

entitled to learn, under conditions that respect, protect and

promote the inherent human dignity of each child.

The right to education is part of a compendium of socio-

economic rights, including rights to access to adequate

housing, health-care services, sufficient food and water, and

social security. Although children’s right to basic education is

not subject to progressive realisation, the CESCR and the South

African Human Rights Commission regard it as dependent on

the progressive realisation of other socio-economic rights. For

example, children who are sick or hungry will struggle to learn.

Arguably, socio-economic rights are necessary conditions

for people to exercise their civil and political rights. The rights

to freedom and security of the person; freedom of religion,

belief and opinion; and freedom of expression are pertinent to

Education and the 4 As

Availability

Educational institutions and programmes must be available in sufficient quantity to meet local needs. This includes a range of resources, eg buildings, water and sanitation, trained teachers receiving domestically competitive salaries, teaching materials, libraries, computer facilities and information technology.

Accessibility

Education must be accessible to all. There should be no discrimination on the basis of race, class and gender, and vulnerable groups must be catered for (such as refugee children or children with disabilities). Schools must be physically accessible (eg it must be safe and easy for children to travel to school). Schools must be economically accessible and affordable. Primary education should be free to all.

Acceptability

Education programmes, including curricula and teaching methods, must be acceptable to students. Education should be relevant, culturally appropriate and of good quality. It should also respect the rights of learners (eg school discipline and language of instruction).

Adaptability

The education system needs to be flexible so it can adapt to the needs of changing societies and commu- nities, and respond to the needs of students in diverse social and cultural settings (such as children with disabilities or children living in child-headed house- holds).

Sources: Adapted from the United Nations Committee on Economic, Social and Cultural Rights (1999) General Comment No. 13: The Right to Education (Art. 13 of the Covenant), 8 December 1999. E/C.12/1999/10; Tomas̆evski K (2001) Right to Education Primer No. 3 Human rights obligations: making education available, accessible, acceptable and adaptable. Gothenburg: Novum Grafiska.

21PART TWO: Meaningful access to basic education

both rights in education and rights through education. For

example, schools must provide a safe learning environment

and create opportunities for learners to participate in

decision-making.

Section 28 of the Bill of Rights safeguards children’s rights

to care and protection, and recognises that the best interests

of the child are of paramount importance in all matters

concerning the child, including education.

Just administrative action (section 33) grants everyone the

right to administrative action that is lawful, reasonable and fair.

This includes the administration of school admissions, children’s

educational achievement records and disciplinary hearings.

Education is not only a right in itself, it also empowers

people to claim and realise their other rights. According to the

South African Human Rights Commission, the right to basic

education is a central facilitative right in South Africa’s consti-

tutional democracy. Through basic education, people are better

able to appreciate and exercise the full range of their human

rights. For example, the Education for All — Global Monitoring

Report describes how access to education enables women to

make choices that improve maternal and child health. In

other words, education gives people the freedom to make

informed choices and enhances what Amartya Sen calls their

capability to lead lives they have reason to value.

Spreen and Vally describe how education acts as a multi-

plier. Where the right to education is effectively guaranteed, it

enhances the enjoyment of all individual rights and freedoms.

Conversely, where the right to education is denied, violated or

disrespected, this deprives people of their awareness and

enjoyment of many other rights and freedoms. (Of course,

education acts as a multiplier only if schools are not being

used — as most of them were under apartheid — to indoc-

trinate learners or produce a compliant underclass.)

Human rights considerations inform every facet of the

education system. Vally points out that this includes policy,

access, budgeting, curriculum, management, assessment,

teaching and learning. Human rights education is also an

essential component of the Revised National Curriculum

Statement which aims to develop informed and active citizens

who know their rights and can challenge injustices.

Figure 1: Rights to, in and through education as described in the Constitution

Rights to education Rights in education Rights through education

Everyone has the

right to basic education

Section 29(1)(a)

Everyone has the

right to further education

Section 29(1)(b)

Everyone has the right

to learn in their official

language of choice

Section 29(2)

Children have the right

to be protected from work

that places their education

at risk

Section 28(1)(f)

Everyone has the right to dignity

Section 10

Everyone has the right to equality

Section 9

Everyone has the right to an

environment that is not

harmful to health

Section 24

Children have the right to

protection from abuse and neglect

Section 28(1)(d)

Children have the right

to basic nutrition

Section 28(1)(c)

Basic education facilitates access

to a wide range of political, social

and economic rights.

This includes, amongst others:

� the rights to equality and

dignity; � the right to further

education; � the right to information; � the right to health care

and social security; � the right to just

administrative action; � freedom and security of

the person; � freedom of religion, belief

and opinion; and � freedom of expression

and association.

22 SOUTH AFRICAN CHILD GAUGE 2 0 0 8 / 2 0 0 9

What are the State’s obligations regarding

children’s right to basic education?

Section 7(2) of the Constitution requires the State to “respect,

protect, promote and fulfill the rights in the Bill of Rights”.

Each obligation imposes a related set of duties on the State:

� the obligation to respect requires the State to avoid

measures that prevent children’s enjoyment of the right to

basic education;

� the obligation to protect requires the State to prevent

others (for example, parents and caregivers) from inter-

fering with children’s enjoyment of the right to basic

education;

� the obligation to promote imposes a duty on the State to

encourage educational participation and to make citizens

aware of their educational rights; and

� the obligation to fulfil imposes a duty on the State to take

positive measures that enable all children to enjoy the right

to basic education.

South Africa has developed an impressive array of laws, regula-

tions and policies which aim to get all school-aged children

into schools and ensure a safe school environment. The policy

intent is to establish an education system that is inclusive,

efficient and attentive to the quality of learning conditions and

outcomes. Children’s rights to dignity and equality are

protected through, for example, the abolition of corporal

punishment, the prohibition of discriminatory practices, codes

of ethics for educators and learners, and particular attention

to the rights of children infected or affected by HIV/AIDS and

those with disabilities and special education needs.

Despite a comprehensive set of laws and policies to give

effect to rights to, in and through education, many children in

South Africa do not yet enjoy these rights in practice. The

other essays in this publication present some key factors that

hamper full realisation of the right to basic education.

Legislation gives effect to the right to basic education and

defines some of the corresponding duties and duty-bearers.

But in the absence of clear norms and standards, many of the

State’s constitutional obligations remain loosely specified.

© Jenni Karlsson

23PART TWO: Meaningful access to basic education

Children’s moral rights often extend beyond existing policy

and legislation and create what Sen calls “imperfect obliga-

tions” that stretch beyond the fully delineated roles of duty-

bearers. Sen argues that, in the case of imperfect obligations,

there can and should be ongoing deliberation about the way

in which the right is best fulfilled; what would count as

genuine realisation; and how the respective demands of

different rights should be integrated. As education is itself a

contested terrain, many of the obligations regarding the right

to education are imperfect and thus open to debate.

Why is ongoing public debate about rights

important?

Sen argues that a theory of human rights “cannot sensibly be

confined within the juridical model within which it is so

frequently incarcerated”. Human rights are also moral injunc-

tions that can be used as political tools to challenge and

extend existing policies and to motivate and mobilise for

social change.

Wilson argues that rights have conservative as well as

radical potential. The concept of rights can be used to

challenge injustices or it may be used to mask existing

inequalities. Spreen and Vally warn against “constitutional

romanticism” or proceeding as if rights exist for everyone

instead of recognising circumstances where people’s rights

on paper don’t translate to rights on the ground. It is therefore

vital that the concerns and needs of those who are most

deprived become central in defining what is meant by the

right to basic education.

While legislation and litigation can get results, enduring

respect for human rights is sustained not just by a country’s

constitution, government and legal system. It is, Pogge sug-

gests, sustained more deeply by people’s values, as shaped by

the education system and the economic distribution of

resources. What is needed to secure a right, he suggests, is a

vigilant public that is willing to work towards the political

realisation of the right. Ongoing public debate is critical for

securing meaningful access to education. So, too, is what

Vally describes as “an active and responsible citizenship who

understand the law and its limitations and are willing to insist

on their rights and mobilise when these aren’t forthcoming”.

What are the conclusions?

In South Africa, the right to education is defined in section 29

of the Bill of Rights, which must be interpreted in line with

international law and democratic values.

Human rights are indivisible, and the right to education

must be seen in relation to other human rights. Children have

rights in and through education, as well as to education. The

rights to equality and dignity set the standards for a

democratic system of education, and the right to education

acts as a multiplier that enables people to access other

political and socio-economic rights.

Government has an obligation to respect, protect, promote

and fulfil these rights through policy and legislation; yet many

of these obligations are imperfect and the precise content and

meaning of the right to education remain open to debate.

Rights are political resources that can be used to extend

and deepen meaningful access to education. Children’s right

to basic education will only be realised when government

meets the educational needs of all children in South Africa.

Ongoing dialogue and advocacy are essential in order to

interpret what is meant by the right to basic education, and to

mobilise public action for its full realisation.

Sources

Constitution of the Republic of South Africa. Act 108 of 1996. Currie I & De Waal J (2005) The Bill of Rights Handbook (Fifth Edition). Cape Town: Juta. EFA Global Monitoring Report Team (2009) Education for All – Global Monitoring Report. Overcoming inequality: why governance matters. Paris: United Nations Educational, Scientific and Cultural Organisation. Motala S, Dieltiens V, Carrim N, Kgobe P, Moyo G & Rembe S (2007) Educational access in South Africa: Country Analytic Report. Prepared for the Consortium for Research on Educational Access, Transitions and Equity (CREATE). Johannesburg: Education Policy Unit, University of the Witwatersrand. Office of the United Nations High Commissioner for Human Rights (2001) United Nations Convention on the Rights of the Child General Comment No. 1. The Aims of Education (Art. 29 of the Covenant), 17 April 2001. CRC/GC/ 2001/1. Geneva: UNCHR. Office of the United Nations High Commissioner for Human Rights (1989) Convention on the Rights of the Child, General Assembly Resolution 44/25. Geneva: United Nations. Office of the United Nations High Commissioner for Human Rights (1966) International Covenant on Economic, Social and Cultural Rights. Geneva: UNCHR – UNOG. Pogge T (2002) World Poverty and Human Rights. Cambridge: Polity Press. Right to Education Project (2008) The Right to Education Project. Available: www.right-to-education.org. Sen A (2004) Elements of a theory of human rights. Philosophy and Public Affairs, Fall 2004; 32(4): 315. South African Human Rights Commission (2006) Report on the Public Hearing on the Right to Basic Education, 12 – 14 October 2005. Johannesburg: Human Rights Commission. Spreen CA & Vally S (2006) Education rights, education policies and inequality in South Africa. International Journal of Educational Development, 26(2006): 352-362. Tomas̆evski K (2001) Right to Education Primers No. 3 Human Rights obliga- tions: making education available, accessible, acceptable and adaptable. Gothenburg: Novum Grafiska. United Nations Committee on Economic, Social and Cultural Rights (1999) General Comment No. 13: The Right to Education (Art. 13 of the Covenant), 8 December 1999. Geneva: Office of the United Nations High Commissioner for Human Rights. Vally S (2007) Rights and Responsibilities in Education. In: The Star Series – Education in South Africa Today. Johannesburg: Wits School of Education/The Star: 3-5. Wilson S (2004) Taming the Constitution: Rights and reform in the South African education system. South African Journal on Human Rights, 20(3): 418-447. World Education Forum (2000) The Dakar Framework on Action. Education for All: Meeting our collective commitments. Adopted by the World Education Forum, Dakar, Senegal, 26 – 28 April 2000.