An education rights charter is an important step in this direction.
A charter of basic education rights, an idea that was tabled by the South African Human Rights Commission at its education workshop last month, would benefit South Africa greatly. Its draft charter has now been made available for public comment.
This is well timed and sorely needed, given the country's long-running education crisis and the growing pressure for effective measures to be adopted to resolve one of South Africa's most pressing social and economic problems.
The purpose of the commission's Charter of Basic Education Rights is to define the scope and content of the right to basic education as set out in section 29(1)(a) of the Constitution. It sets out the obligations of the state to deliver basic education and provides indicators and targets against which government policy and performance should be measured, which are necessary if government officials are to be held accountable for non-delivery.
The commission is well placed to drive the development of such a charter. Its powers emanate from the Constitution and the Human Rights Commission Act, which enable it to receive and investigate complaints.
I worked at the commission in the late 1990s and know that its investigative function exposes it to the gamut of this country's systemic education challenges.
Its track record in this regard also includes reports on racism in schools (1999) and initiation practices at schools and universities (2001), and it hosted public hearings on the right to basic education in October 2005.
In terms of section 184(3) of the Constitution, the commission is required to monitor the state's obligations to advance socioeconomic rights. The government departments responsible for the delivery of these rights, including the department of basic education, are obliged to submit reports every year to the commission on the measures taken to advance them.
The importance of clear standards
When the Constitution was first adopted, human rights advocates viewed section 184(3) as a powerful tool to redress poverty and inequality, but so far it has been sterile and perfunctory. But this could change because the Charter of Basic Education Rights includes clearly identifiable standards against which to measure the government's performance.
For such a charter to work, there must be widespread agreement on its meaning and purpose. Therefore, the commission must ensure that all players in the education sector are consulted before the final charter emerges.
This will require the participation of the government, teacher unions, school governing bodies, student organisations, education and human rights specialists as well as the social movements and civil society organisations advocating education rights. Consensus must be shaped by debate, engagement and input.
"Everyone has the right to a basic education, including adult basic education," according to section 29(1)(a) of the Constitution. This is a broad and general clause. The Constitution requires that, in interpreting or giving flesh to its meaning, South Africa must be guided by its international legal obligations and jurisprudential developments in its courts.
In tabling the idea of an education charter, the commission has drawn on international law, in particular the general comment 13 of the International Covenant on Economic Social and Cultural Rights. This specifies the right to basic education in terms of " four As". That is, education must be:
- Available, entailing a government-funded education system, adequate infrastructure and trained teachers to provide an education;
- Accessible, entailing education that is nondiscriminatory and economically and physically accessible so that marginalised children such as migrant children are included;
- Acceptable, which means providing curriculums that are of a high quality, nondiscriminatory and culturally appropriate and ensuring the schooling environment is safe; and
- Adaptable, meaning education must be flexible so that it can adapt to the needs of changing societies and communities and respond to the needs of pupils within their diverse social and cultural settings.
What is adequate?
To measure state compliance with each of the components, the commission has suggested that the charter should identify indicators or targets against state policy and performance can be measured. For example, the obligation to provide "adequate infrastructure" is expanded to include the building of classrooms and providing safe basic services, such as electricity and sanitation. The draft charter identifies indicators or targets, such as the number of classrooms in each grade that a school ought to have based on the number of pupils in each grade.
Under each of the four As, indicators can be drawn from international best practice to satisfy the needs of a country. These include pupil-teacher ratios and the basic materials that pupils should be given.
Judged against these criteria, the commission's document finds that the state has failed to deliver on the right to basic education in most regions.
This should put paid to the notion, sometimes advanced by politicians, that there are only a few dysfunctional pockets in education in provinces such as Limpopo and the Eastern Cape and these are isolated rather than systemic.
Missing from the charter, though, is a definition of the meaning and significance of the "unqualified" nature of South Africans' right to basic education. That is, the Constitution is clear that the right to education is not subject to the qualification that it should be progressively realised according to the state's available resources, as are other constitutionally entrenched socioeconomic rights, such as healthcare, welfare and housing.
In the Constitutional Court case Governing Body of the Juma Musjid Primary School and Another vs Ahmed Asruff Essay NO and Others, the court noted the absence of these qualifiers and went on to describe this right as being "immediately realisable".
The danger of failing to elaborate on this is that it does not make it clear to the state that the imperative to prioritise the provision of basic education is here and now.
The Constitution is emphatic that the delivery of basic education is not an incremental obligation. This, presumably, derives from the insight that a child who does not have access to a quality education today is a child with diminished opportunities forever.
Discussion of the Charter of Basic Education Rights must be welcomed. It would be a great step forward for education transformation in South Africa if the government was guided by such a charter and took steps to improve its performance where it was found wanting.
Because the adversarial nature of litigation makes court battles bruising and confrontational, the government would be wise to face one of our country's most important challenges and be more proactive.
Faranaaz Veriava is a human rights lawyer. This is the first of a monthly series of columns on the meaning and implications of the right to basic education