THE newly formed Education Rights Project is challenging the state to keep its education promises
The government will soon face court action to force it to meet its constitutional obligations to provide basic education. Millions of the country’s most vulnerable citizens – including children and illiterate adults – continue to be blighted by gross apartheid-era inequalities, despite major legislative and policy reform since 1994.
Litigation is one strategy the newly formed Education Rights Project (ERP) will deploy in challenging the government to deliver on rights to education entrenched in the Constitution, says Salim Vally, a researcher in Wits University’s Education Policy Unit and one of the driving forces behind the establishing of the ERP.
“The other main strategy will be social mobilisation,” he says, drawing an analogy with the Treatment Action Campaign’s activism on the provision of HIV/Aids treatments. “We are developing litigation strategies with affected communities.”
About 45% of schools have no electricity, 27% lack clean water, 66% have inadequate sanitation and 12% no sanitation at all and 34% do not have telephones. Basic school infrastructure and facilities constitute one of four initial target areas for the ERP. The other three are free education, farm schools and sexual harassment of girl learners.
“The ERP will focus on the most vulnerable segments of our society who have historically been, and who continue to be, denied access to basic education,” Vally says.
“Some of the problems the ERP will address, such as exclusion or victimisation for non-payment of fees, or learners having to walk huge distances to get to school, are the norm, not the exception, especially in rural areas.”
Consisting of legal researchers, educationists, social activists and civil society representatives, the ERP has attracted foreign donor funding to sustain a core group of salaried employees and paid consultants for an initial two-year period. It has also established a volunteer reference group whose professional expertise will be tapped as the ERP identifies particular areas of litigation and advocacy.
“We’re testing the boundaries,” says Faranaaz Veriava of the Centre for Applied Legal Studies and a member of the ERP core group. “We argue that the Constitution places a positive obligation on the state to provide schools, for example. But we still have to see how the courts will interpret this. There’s been little litigation around socio-economic rights in this country.”
The ERP’s fundamental argument is that the right to basic education, including adult basic education, is distinguishable from other socio-economic rights in the Constitution in that it is not subject to constraints such as “reasonable legislative and other measures”, “progressive realisation” and the state’s “available resources”.
The Constitution therefore “creates a duty on the state to ensure the full and immediate enjoyment of the right”, the ERP argues in its recently formulated framework document.
Government policy on school fees is one ERP focus: the policy does not provide for free education, the ERP argues, but only exempts parents on application, and once certain conditions have been met. This has created “cumbersome procedures”, which many parents find difficult to utilise, the ERP framework document observes. And the policy “does not address the victimisation experienced by learners and parents who cannot pay school fees. This in many instances results in parents not sending their children to school.”
Huge numbers of learners at farm schools, which comprise 17% of the country’s schools, are also to receive the ERP’s attention.
“These learners experience difficulties that include the lack of basic school infrastructure; the insecurity of tenure of farm schools; the long distances learners have to travel to attend these schools; and farmers enlisting learners for child labour from these schools.”
Minister of Education Kader Asmal’s report to the president on the provinces last year noted dismal progress towards finalising rental and other agreements between education MECs and farmers. These agreements are required by the 1996 South African Schools Act, but by the beginning of last year only 30% of the agreements had been concluded.
Girl learners also receive attention from the ERP, which cites recent research by the Human Rights Watch showing that sexual violence is rife in South African schools. The research notes that “although girls in South Africa have better access to schools than girls in other sub-Saharan countries, the prevalence of sexual harassment mitigates many of their education rights, as either their performance in school drops or they drop out of school altogether”.
The national Department of Education has yet to implement a sexual harassment policy for schools, the ERP observes. As a result, “there are no proper mechanisms for learners to report abuse without fear of reprisals or to provide support for those who do”. There is also “no way of identifying and tracking educators found guilty of abuse, and therefore no mechanism to ensure that they are not rehired”.
The constitutional right to basic education includes adult basic education. There are up to 15-million illiterate adults in the country, yet provincial spending on adult basic education is “low to non-existent”, the ERP says, noting that some provinces have suspended adult basic education programmes to give priority to other areas.
“A case brought by adult learners who have been affected by the suspension of adult basic education programmes might test government’s commitment to the right to adult basic education,” the ERP says.
Early childhood development, refugees, disabled or impaired learners, and Aids orphans are among the other problematic areas the ERP will address.