When does the duty to protect children become a violation of their rights, asks Console Tleane
The thorny issue of random drug testing at schools, publicised in media reports earlier this year, highlights the widespread use of narcotics and has raised several human rights issues. Were schools operating within their rights to test pupils for drugs?
Amid the furore, Minister of Education, Kader Asmal, placed a moratorium on random drug testing in schools. Drawing from the provisions of the constitution, the National Education Policy Act and the South African Schools Act, Asmal argued that random drug testing “can easily lead to an abuse of fundamental rights, particularly those relating to privacy, dignity, bodily integrity, and the right to make informed choices about medical testing”.
Fundamental to Asmal’s viewpoint is that random drug testing carries a great threat to the rights of learners. Asmal outlined six reasons why drug testing should be approached with great circumspection: There is a concern that the testing process might invade the privacy and personal dignity of the learner. Even in cases where learners’ consent is obtained, this might be as a result of pressure from parents and educators. Those who refuse to give consent to be tested, or whose parents refuse consent, might face discrimination. It isn’t clear whether testing serves any purpose. In some cases, a test might reveal that drugs were taken outside school hours, a time when the school has limited authority over a learner. And problems might arise when drug testing is allied with issues of discipline.
Charlotte McClain of the South African Human Rights Commission released a draft discussion document that raises a number of arguments, questions and issues that need to be taken into consideration.
For McClain, the most fundamental issue, having considered all available human rights provisions, is whether random testing is based on reasonable suspicion. This important factor is to be considered in the light of the fact that what is at issue is not whether schools are trying to assist learners to uphold the law and live a healthy life. Rather, what is at issue is the possibility that random testing could pose a problem with regard to how it is used.
McClain argues: “It is important to note that even where a drug-testing policy is fair in theory, it can be applied unfairly in practice. It is the classic case of a well intentioned programme resulting in a violation of the rights of those it is meant to protect.”
McClain outlines a number of possible issues that could diminish or infringe on the rights of learners. Firstly, if parental consent is to be used as sufficient requirement to test learners, the question that arise is: to what extent can such consent be used to waive the rights of children?
Secondly, McClain argues that learners should, in line with article 12 of the United Nations Convention on the Rights of the Child and section 28 of South Africa’s constitution, be allowed to participate in decisions that affect their life.
McClain is, however, quick to point out that the provisions of the Convention on the Rights of the Child and of the constitution should not be misconstrued as implying that it’s all right for learners to engage in unlawful conduct and harmful behaviour. Otherwise such rights could be reduced to what other analysts term negative rights, such as the right to kill.
The third issue raised by McClain is the apparent gender discrimination that has been noticed with some of the tests conducted by certain schools. It has been noted that in some schools, girls were tested for a multiplicity of drugs while boys were tested only for dagga.
She also points out that random alphabetical selection might lead to more black learners being tested. For instance, a simple telephone directory check reveals that the letter M is the first letter of many black surnames. This means that there could be more black learners who will be drawn under the letter M.
The fourth issue is the right to privacy. Again McClain argues that while the right to privacy, just like any other right, can be limited, the best-interest principle is paramount.
The right to be searched is raised as the fourth issue. A question that needs to be addressed if whether learners shed their right to privacy when they are body-searched in cases where there is not reasonable suspicion.
The fifth issue is the right to dignity. This includes the right not to be subjected to any medical test without legal permission. This prohibition applies mainly to employees under the Employment Equity Act. Although promulgated for a totally different sector, its provisions find relevance in the case of drug testing.
McClain also raises the contentious issue of religious and traditional rights. Citing the case of Gareth Prince, the Rastafarian legal candidate who was refused permission to practise as an attorney on the basis of a previous charge of possession of dagga, and subsequently challenged the ruling at the Constitutional Court, McClain asks whether the use of certain substances can be regarded as unlawful or prohibited if their users claim they utilise them for religious purposes.
Lastly, what happens to learners who test positive for certain drugs? Should they be turned over to the police? McClain argues: “If random testing is to be carried out in good faith, then strategies will have to be in place to absorb those learners who do in fact have a problem. A challenge in this regard would be to adopt a less punitive approach to drug abuse and rather see it as a public health issue.”
Indeed the problem of drug abuse in schools needs well-thought-out strategies.
It can be easy for educators, faced with the everyday problems of learners who use drugs, and parents, living with the frustration of children who have adopted “wayward” lifestyles, to resort to the quick-fix solution of drug testing.
– The Teacher/M&G Media, Johannesburg, September 2001.