On Friday the Swaziland Supreme Court ruled that the Swaziland government does not have to provide free basic education at a primary school level, even though this is stipulated in the country’s Constitution.
The Constitution, which was adopted in 2005, commits to providing free primary education, effective from 2008 onwards.
However, five years later and contrary to the Constitution, the Swaziland government has not implemented free primary education.
In 2008, the Swaziland Ex-Mineworkers’ Association brought an application for the high court to intervene and enforce free primary education, and was granted a declaratory order.
The order, while legally binding, did not require any action to be taken by the government, and so the Ex-Mineworkers’ Association brought a second application to the court. It sought to continue the struggle for free education at a primary school level, but also requested an immediate interdict to stop the government from expelling primary school children who were already in the schooling system but could not afford the fees.
When this application was dismissed, the association then brought the appeal in front of the Supreme Court, which on Friday was dismissed.
‘Overambitious’
In delivering the judgement, Justice of Appeal Seth Twam noted that the provision of free education came down to the availability of resources, not the insistence on the provisions of the Constitution. He said the “characterisation of the rights of the Swazi child to fee-free education as a fundamental right was overambitious”, but that the answer does not “necessarily lie in an amendment to the Constitution”.
Twam said that the government may have to rather rehash programmes and policies so that the “hopes and aspirations of the Swazi people as captured in Constitution may be realised”.
The Open Society Initiative of Southern Africa (Osisa), which provided direct support for the Swaziland Ex-Mineworkers’ Association, maintains that the refusal to implement free basic education is a human rights violation.
“The access to education creates access to all other human rights,” Osisa education programme manager Sherri Le Mottee told the M&G. “We see education as pivotal.”
Furthermore, “79% of families in Swaziland live below the poverty line”, said Le Mottee.