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This article critically evaluates case-law developments regarding the right to basic education as enshrined in the South African Constitution and argues that litigation, or at the least the threat of it, plays an important role in the realisation of the right to education.
Chapter two (p.47-56) is dedicated exclusively to the clarification of justiciability and the challenges of justiciability as a tool for social transformation and inclusion of the most vulnerable. It presents ‘justiciability’ as one of the steps of a holistic strategy to overcome poverty. It defends the role of judges as guarantors of rights and freedoms of the most invisible members of society.
Drawing upon a full range of case law, the report shows that adjudication of economic, social and cultural rights is possible, desirable and already being carried out by courts in all continents. The report addresses the legal and political objections to the justiciability of economic, social and cultural rights and confirms their justiciability.
This paper argues that social and economic rights, defined as rights to the satisfaction of basic needs, are constitutional essentials at domestic level and claims of the highest priority at supranational level. Their inadequate legal protection in national and supranational orders is not justified. Social rights have common foundations with civil and political rights, but have been neglected in law because of Cold War ideologies. The paper explores the role of courts and the role of legislatures in the protection of social rights, and identifies the key challenges in each of these fields.
Many countries have incorporated the right to education in their constitutions. The present article discusses the modalities of how a number of key dimensions of the right to education have been subject to judicial or quasi-judicial review. In other words, it discusses how the courts have dealt with the educational issues brought before them. Such cases do not always use right-to-education language, but generally speaking they deal with two aspects of the right to education, namely the right to receive an education and the right to choose an education. One of the major arguments against economic, social and cultural rights being on an equal footing with civil and political rights has always been that the former are not justiciable. The present article will reveal that the right to education is and has been fully justiciable in many jurisdictions.
This article was published in Erasmus Law Review, Vol. 2, No. 4, pp. 427-443.
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
The UN Convention on the Rights of Persons with Disabilities in article 24 seeks to combat discrimination of children with disabilities in the field of education by prescribing a model of social inclusion. This paper will critically examine the sociological concept of inclusion, the German experience in implementing article 24 and the limitations of article 24 vis à vis the Right to Education in the International Covenant on Economic, Social and Cultural Rights. Before turning to the situation in Germany it is beneficial to discuss underlying concepts relating to special need education in order to clarify the notion of inclusion. In doing so, contested medical concepts, the perception of education as end rather than means and the voicelessness of the child, all lead to the conclusion that a rights-based approach is advantageous in acquiring social justice. Moreover, looking at the case of Germany and a school system with an exclusion rate of 82% the delay in the public discourse about inclusion is particularly striking. Hence, section 3 will look at empirical data, the UN definition of education and elaborate on the German confusion of inclusion and integration by making reference to domestic law and an exemplary case along with relating the Monitoring Body’s guidelines of availability, accessibility, acceptability and adaptability to the action plan of North Rhine-Westphalia. Finally, the application of social inclusion maxims to anti-discrimination law demands significant, positive adjustments but is also restricted by its focus on absolute disadvantage. The convention is arguably limited because of its narrow outlook owed to its civil and political nature and inclusive reform might bring broader equality when applied to the a priori Right to Education from the International Covenant on Economic, Social and Cultural Rights.
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.
This Guide will inspire and help judges and lawyers working at national level to litigate cases involving economic, social and cultural rights.
In particular, it aims at giving examples from a large variety of countries and jurisdictions of how courts and other bodies have dealt with the adjudication of these rights.
The Guide also addresses issues that legal practitioners are faced with at the different phases of litigation, from initiating a case and evidence building to the provision of remedies and the enforcement of judicial decisions.
Please note, that this Guide is an updated version of Courts and the Legal Enforcement of Economic, Social and Cultural Rights. Comparative Experiences of Justiciability.
In addition to the electronic version of the Guide in a book format, the ICJ has also launched a searchable online version that is accessible on the ESCR page.
This Factsheet was prepared by the Center for Economic and Social Rights (CESR) and the Egyptian Center for Economic and Social Rights (ECESR) in light of Egypt’s appearance before the Human Rights Council’s Universal Periodic Review in 2014.
In its last Universal Periodic Review in 2010, Egypt accepted six recommendations related to eradicating illiteracy, particularly in rural areas, and one on enhancing the quality of its education system. Despite some overall improvements since then, stark disparities in educational achievement remain. Decreasing public investment in education disadvantages students who cannot afford to attend private schools and exacerbates the problem of unequal access to education.