‘LAWYERING FOR LEARNING: THE JUSTICIABILITY OF THE RIGHT TO EDUCATION IN SOUTHERN AFRICA’

 

Objectives of the project:

• Build knowledge on the justiciability of the right to basic education in Southern Africa and disseminate accurate, comprehensive and accessible information about this issue to stakeholders.

• Develop the capacity of young African legal academics in the field of education law.

• Trigger the initiation of public interest litigation to enable the justiciability of
  the right to education Southern Africa, where necessary and appropriate.

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Project outputs:

• A situational analysis on the justiciability of the right to basic
  education in 10 Southern African countries (Angola, Botswana, Lesotho, Malawi, Mozambique, Namibia, South Africa, Swaziland, Zambia, Zimbabwe) will have been compiled;

• 5 journal articles co-authored with doctoral students and/or young legal academics from African countries, will have been prepared for publication;

• An edited book (containing chapters by young African legal academics) will have been prepared for publication by a recognised publisher;

• Knowledge will have been disseminated through lectures in master's courses, on-line courses and the Oxford Human Rights Hub ‘blog’; and presentations by authors at seminars and conferences;

• Awareness will have been raised in Southern Africa about the justiciability of the right to education, amongst those who are in a position to bring such cases.

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Understanding the need behind this project:

The United Nations Declaration on Human Rights (article 26) provides that “every child has a right to education – to ensure their growth and development and to fulfil their individual potential”.  This has been reiterated by other international and regional human rights standards. Education is an enabling right that builds the capacity of individuals to claim other human rights.  It is a “multiplier” or a vital means for the realisation of other rights. According to education rights expert Katharine Tomsevski, the denial of the right to education leads to compounded denials of other human rights and perpetuation of poverty.

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Yet, the 2013/14UNESCO’s Global Monitoring Report on Education for All (EFA) shows that 57 million children do not attend primary school which should be free and compulsory under international law. As correctly observed by Kishore Singh, the former Special Rapporteur on the right to education, the enjoyment of the right to education is often least accessible to those who need it most –disadvantaged and marginalized groups and, above all, children from poor families.

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Access to education is not the only problem. Even for children who have managed to gain entry into schools often experience other barriers – schools may be far from their homes, with no transport provided, school buildings may be made of mud with leaking roofs, there may be insufficient desks and chairs. Furthermore there is often a lack of well qualified teachers, large class sizes, and all of these issues add up to a lower quality of education. In Southern Africa, there is also often a problem of serious inequality – a better system for the minority group of wealthy children and a weaker system for the poorer and most marginalised. Children with disabilities are often excluded from education.

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Why the UNESCO Chair: Education Law in Africa sees the need to launch this project:

The field of education law is relatively new – particularly on the continent of Africa. Only a handful of Universities on the continent offer education law as a subject. The student movement for higher education in South Africa – characterized by the rallying cry #Feesmustfall – has galvanised a new interest in the right to education and how to realise it. There is a nascent generation of young African lawyers and legal academics who are realising the importance of this field for the future development of the countries and the region. This project aims to capture that energy and channel into the development of young African legal academics who will advance legal means to make the right to basic education real.

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Education law creates the normative framework for education – within international and regional human rights standards. All countries in Southern Africa have ratified the UN Convention on the Rights of the Child, all have ratified the African Charter on the Rights and Welfare of the Child and almost all have ratified the International Covenant on Economic, Social and Cultural Rights. All of these instruments require states to ensure universal access to free primary education. Some of the Constitutions of countries in the region make similar promises. This project examines the role that the law and lawyers can play at the national level when states fail deliver on their constitutional promises or their international and regional obligations.

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This raises the question of the justiciability of the right to education which is at the centre of this project.  Justiciability is described by the International Commission of Jurists as “the ability to claim a remedy before an independent and impartial body when a violation of a right has occurred or is likely to occur”.

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Litigation driven by civil society has achieved success in South Africa on issues such as existence of mud schools, admissions policy that favours wealthy schools, non-delivery of textbooks, failure to deliver school furniture, problems of scholar transport in rural areas, provision of teachers, language policy and access to education for children with disabilities. An attempt was also made in Swaziland to use the courts to hold the government accountable on the promise made in the Constitution for free primary education for all. This was a less successful exercise, but it holds important lessons. These examples of litigation provide an impetus for examining what the prospects are in the other eight countries in the region, and comparing them against the South African and Swaziland experiences. If the right to education is judiciable, and successful litigation can be brought, an additional means for promoting the right to education for all children in the region, and holding duty bearers accountable is made tangible.

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The question to this project:

The UNESCO Chair: Education Law in Africa will use this project to research as to what extent the right to basic education is justiciable in Southern Africa; and whether a basis exists to build a legal and social movement to promote education and where necessary and appropriate, to use litigation to achieve the right to education for all children in the region.

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What the project will entail:

The study will commence with a situational analysis of available information on measures taken by the governments in the ten countries in Southern Africa aimed at providing access to the right to education. The baseline study will cover legal and policy measures such as the status of international and regional laws related to the right to education in national laws and courts; the constitutional protection of the right to education; identification of government policies and legislation (as well as budgetary provision) that enable or impede the realisation of the right to education. The role of other actors such as National Human Rights Institutions in achieving the right to education will be considered. The study will also assess the prospects of successful public interest litigation with a focus on of separation of powers, independence of the judiciary, standing in courts, and the recognition of socio-economic rights by the courts. Recognizing that litigation will be the most successful if led and/or supported by social movements, the strength of civil society and the opportunities for social mobilization will be explored. The success of socio-economic rights litigation and social movements linked to these struggles, and the remedies provided by courts, as well as their actual impact on achieving the relevant rights, will also be included in in the situational analysis.

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Once the situational analysis has been completed, work will begin on chapters for a book and 10 journal articles. The outputs of the project will be disseminated through formal and informal publications, lectures, conferences and seminars. Public interest litigators and social movements and other interested stake holders will have been provided with high quality information that will support the promotion of the right to education through legal measures including litigation, where that is necessary and appropriate.

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Countries falling within the perimeters of this study:

• Angola

• Botswana

• Lesotho

• Malawi

• Mozambique

• Namibia

• South Africa

• Swaziland

• Zambia

• Zimbabwe

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Parties to work on this project:

The research will be undertaken by post graduate students or other researchers supervised by Professor Ann Skelton, under the auspices of the UNESCO Chair: Education Law in Africa. The project will develop the skills of young African researchers in the field of Education Law.

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Professor Serges Djoyou-Kamga (based at the University of South Africa) is a co-supervisor and external examiner for the majority of the post graduate students, and it is envisaged that he will play a crucial role in advising students and co-authoring some of the articles.