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.
Part of a law which allowed the Colombian government to charge for primary education was deemed unconstitutional after a pair of Colombian lawyers, collaborating with the law faculty at New York’s Cornell University and a coalition of civil society organisations, brought a direct challenge against its discriminatory provisions.
An animated video created by ESCR-Net to promote the ratification of the Optional Protocol to the International Convention on Economic, Social and Cultural Rights.
The video, which is three minutes long, is about a twelve-year-old girl named Lucy who has to fight for her right to education when her school is closed due to a lack of public funds. Ultimately, Lucy proves that access to justice is key to the full enjoyment of human rights.
Vidéo d'animation créée par ESCR-Net pour promouvoir la ratification du Protocole facultatif à la Convention internationale sur les droits économiques, sociaux et culturels.
La vidéo, qui est de trois minutes, parle d'une fille de douze ans nommée Lucy qui doit se battre pour son droit à l'éducation lorsque son école est fermée en raison d'un manque de fonds publics. En fin de compte, Lucy prouve que l'accès à la justice est la clé de la pleine jouissance des droits de l'homme, y compris le droit à l'éducation.
This 'Right to Education Info Packet' on Tanzania aims at informing about the right to education, its legal, political, and social considerations, and some examples of its potential uses in litigation.
Laws are not only regulations the government enforces upon the people; they are regulations the people are to enforce upon the government. Laws just do not magically change things; they are tools to be used in court to hold others accountable so as to bring about change. Thus, it is the objective of this publication not to fill your head with heaps of information about a right that you cannot achieve but to enlighten you on tools that exist and how you may use them to attain your rights.
The 'Info Packet' provides guidance to litigate issues related to free primary education, expulsion of pregnant students, corporal punishment and education financing.
The Guide identifies equality and non-discrimination strategies that NGOs, lawyers and activists may employ in seeking to advance economic and social rights (ESRs) before courts. It is also accompanied by an online Compendium of useful cases in which equality and non-discrimination concepts and approaches have been employed to advance ESRs.
The Guide is split into three parts. Having introduced the rights framework, the Guide identifies conceptual and practical reasons why equality and non-discrimination arguments should be employed when challenging violations of ESRs. It then presents clear and practical guidance on how to use equality and non-discrimination strategies in courtrooms around the world.
Part I provides an analysis of the various legal issues commonly encountered in economic, social and cultural rights litigation. These include identifying the relevant sources of law, establishing justiciability, defining the nature and scope of rights and obligations, responding to the defences available to governments, and the crafting of appropriate remedies. The next chapters address the right to legal aid for economic, social and cultural rights litigation, specific rights (social security, housing, health and education), as well as the social rights of children. This will provide the user of the manual with a sense of how the application and interpretation of economic, social and cultural rights may vary depending on the group claiming the right and the particular right at issue.
In Parts II and III, the various regional and international complaints procedures are outlined. For each human rights mechanism, there is a description of the relevant legal instruments, the applicable economic, social and cultural rights standards and the responsible adjudicatory body. The procedure for making a complaint is set out in detail, together with the limitations of the various procedure. Each chapter concludes with a brief analysis of the jurisprudence of judicial or quasi-judicial bodies and a list of useful resources. The remainder of the manual seeks to provide the user with a range of practical resources for litigation.
Part IV sets out summaries of leading cases on economic, social and cultural rights,
The Strategic Litigation Working Group (SLWG) has launched a discussion paper with eight key proposals regarding the follow-up on views issued by United Nations human rights treaty bodies (UNTBs). ESCR-Net’s SLWG recognises the significance of decisions issued by UNTBs under the complaints procedures (Views) in the advancement of human rights enjoyment by people around the world, and welcomes the past action and willingness of the UNTBs to continue developing constructive practices regarding the impact and implementation of such Views.
Three principles underpin the SLWG’s proposals: the principle of non-repetition (consistently applied by the HRC in its views and by the CESCR in its General Comments); the principle of reasonableness (developed by the CESCR through its General Comments and 2007 Statement on Maximum Availability of Resources, and made explicit in the OP-ICESCR); and the principle of participation (recognised under a number of UN human rights treaties). Taking into account the practice of different international and regional human rights bodies, the SLWG proposes that the three principles should be applied during the consideration of a case, follow up and implementation, in order to maximise the effectiveness of human rights remedies.
While many authorities can tolerate some traditional campaigning methods, it is usually harder to ignore the law. As part of broader campaigns, the law can be a powerful tool for achieving the changes that children need. Legal advocacy is now being used systematically in a few countries – leading to strong outcomes for children – and it has great potential for wider use.
There are many occasions for legal advocacy. International law sets out the principles and standards that states are obliged to meet but frequently do not, and so their domestic law violates children’s rights. Often, a state meets a standard in domestic legislation but its policy fails to implement the law. Sometimes, it is unclear what a law means in practice, or the meaning is clear but no one knows whether it is being implemented. These various gaps between international legal standards, domestic law and state policy (or corporate policy) present potential opportunities for legal advocacy.
There are also many avenues for legal advocacy. It is a broad term, not limited to taking rights violators to court. Many small-scale legal activities can enhance traditional campaigning, such as reporting on the implementation of a law, or raising awareness of what the law says. Sometimes, simply documenting and publicising the gaps between law and practice is enough to persuade decision-makers to act. But only sometimes. Towards the other end of the spectrum is work that demands more time and resources, including taking a government or corporation to court in order to bring broader social change. A successful case might improve the legal standards that apply to children, or lead to a major policy change of long-term benefit to children.
This introductory guide offers a brief overview of avenues for legal advocacy. It also offers guidance on how to explore your options, and how to promote legal advocacy work with other children’s rights advocates.
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.