This issue of the INTERIGHTS Bulletin focuses on litigating the right to education in Africa. It includes the following articles:
Litigating the Right to Education: Editorial
Solomon Sacco and Susie Talbot
Africa and the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights
Malcolm Langford and Rebecca Brown
Litigating the Right to Universal Primary Education: Challenges and Prospects
Toward Recognition of the Right to Free Education in Colombia
Esteban Hoyos-Ceballos and Camilo Castillo-Sánchez
Expropriation as a Means to Protect the Right to Basic Education: The Case of a Farm School on Private Property Facing Eviction
Lessons from Litigating Universal Primary Education in Swaziland
Developing a Litigation Strategy Regarding Non-Fee Barriers to Equal Access to Free and Compulsory Education for Children in Kenya
Litigating the Expulsion of Pregnant Girls
Tactics to Secure the Right to Education for Children Living with Albinism in Kenya
Gertrude N Angote
Dzvova v Minister of Education, Sports and Culture & Ors
Republic v Head Teacher, Kenya High School, ex parte SMY
The Legal Way of Doing Things: The Competing Powers of School Governing Bodies and Education Authorities in South Africa
The ECOWAS Decision on the Right to Education in SERAP v Nigeria
Adetokunbo Mumuni and Chinyere Nwafor
Advancing the Right to Education Through the Communication Procedure in the African Committee of Experts on the Rights and Welfare of the Child
This publication is intended to support everybody that works in the basic education field in South Africa. It aims to provide a common legally grounded planning, monitoring and advocacy framework that is child-centred and recognises the interconnectedness of human rights.
South Africa is in the unique position of having the right to education guaranteed in the Constitution. The law has been used to advance this right by translating what is on paper into a reality for thousands of learners across the country. The LRC and partners have been at the forefront of civil society efforts in achieving this. We wanted to share our successes.
In October 2013, the Legal Resources Centre was proud to launch Ready to Learn? A Legal Resource for Realising the Right to Education at the Open Society Foundations in New York (find the press release here). The book was designed for legal practitioners and shares the LRC’s legal efforts to contribute to realising the right to education in South Africa. Ready to Learn?
Fighting to Learn… A Legal Resource for Realising the Right to Education is the follow on from Ready to Learn? Using the same format as the first publication,Fighting to Learn… gives an update on many of the cases represented in Ready to Learn? and provides a more general reflection on the role of education in the development agenda.
In Fighting to Learn…, practitioners of law in other jurisdictions can access a summary and court papers relating to the provision of classroom furniture, access to learner-support material and the payment and appointment of teachers. It also gives follow-up materials for the “mud schools” matter and norms and standards for education.
It demonstrates how the Constitutional right to education was integral to our fight for a quality education that is accessible to all. It also demonstrates the creativity of LRC lawyers in their work, from using class actions, which is new in South Africa, to our increasing use of innovative remedies, such as using external administrators to implement court judgments.
In South Africa, SECTION27 has used rights-based strategies, including litigation, to hold the state accountable for not ensuring the procurement and delivery of textbooks to schools across Limpopo, a poor rural area of the country.
In this decision, the Constitutional Court of South Africa held that an eviction order obtained by an owner of private land on which a public school was located could not be enforced where it would impact students’ right to basic education and the best interests of the child under the South African Constitution (sections 28 and 29). The Court held that a private landowner and non-sate actor has a constitutional obligation not to impair the right to basic education under section 29 of the Constitution. The Court also held that, unlike other socio-economic rights protected by the Constitution, the right to basic education is immediately realisable and any limitation of this right must be 'reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom'.
It has recently been suggested that the age of human rights is over. The West, itself often not respecting human rights, is said to have abused the concept as a tool to retain control over the developing world. Human rights have remained a foreign construct in Africa, the Near East, and Asia. They have "underperformed," and the level of privation in many parts of the world is more intense than ever. This Article acknowledges elements of truth in these observations, but argues that the battle for human rights is not lost. Using the right to education in Africa as an example, three arguments will be presented to explain how human rights can regain their moral cogency and actually help change a world of misery for the better. First, human rights need to be "domesticized," made "home-grown" achievements with which local populations can identify. Regional human rights institutions need to give specificity to universal norms. These "locally-owned" norms must then be effectively enforced. Second, pure "development goal" approaches to reducing global poverty need to be debunked. Instead, a human rights approach needs to identify clear duty-bearers, including notably the World Bank, who, when they have failed to comply with specified duties, should be considered "human rights violators" and held accountable accordingly. Third, and perhaps most importantly, human rights must be recognized to give rise to extraterritorial state obligations. These are obligations of states, in appropriate circumstances, to respect, protect, and fulfill the human rights of those beyond their own territory. The extraterritorial human rights obligations of states must structure bilateral development assistance and cooperation, the lending operations of the International Monetary Fund and the World Bank, and free trade within and beyond the World Trade Organization (here, meaning the General Agreement on Trade in Services and the Agreement on Trade-Related Aspects of Intellectual Property Rights).