The right to a basic education is a constitutionally protected right that is unequivocally guaranteed to all children in South Africa. It is considered a central facilitative right that is not qualified by expressions such as ‘available resources’, ‘progressive realisation’, or ‘reasonable legislative measures’ which are applicable to other socio-economic rights enshrined in our Constitution. This was explicitly confirmed in the 2011 Constitutional Court Judgement of Governing Body of the Juma Musjid Primary School and Others v Essay NO and Others.
The South African Human Rights Commission has a constitutional mandate to monitor the realisation of the right to a basic education in South Africa.
Since 1996 the Commission has been engaged at various levels in addressing various aspects of the right to basic education. As South Africa’s constitutionally mandated independent body with the responsibility to promote and protect human rights the Commission has conducted awareness raising programmes; received complaints; monitored and produced reports on government’s realisation of the right to basic education as required in terms of section 184(3) of the Constitution; and engaged with all relevant stakeholders including the Executive and Parliament on education matters. The Commission has regularly commented on proposed education legislation, conducted public hearings and issued reports with recommendations. “School-Based Violence’. In addition the Commission has worked with universities and national and provincial education departments on producing resource books such as “The Educator and the Constitution”, manuals on inclusive education in schools and a training manual for educators on, Alternatives to Corporal Punishment accompanied by a countrywide roll out.
Monitoring this right has not been made easy by the absence of a common and consolidated statement on the scope and content of the right to basic education. It has become increasingly clear, that whilst much research and advocacy has been conducted, there did not appear to be consensus amongst all role-players on what is required practically when we discuss and claim the right. The courts have avoided specifying the content of socio-economic rights including the right to a basic education.
Debates among human rights practitioners including academics identified the Commission as an independent body with the necessary human rights mandate to embark on and lead a consultative process that would culminate in the development of a Right to Basic Education Charter.
It has increasingly been recognised at an international level that national human rights institutions are best placed to determine the monitoring indicators for economic and social rights due to their independent nature and knowledge of local conditions.
The Charter is a culmination of an extensive engagement process and research by the Commission and stakeholders. It aims to provide a common legally grounded planning, monitoring and advocacy framework that is child-centred and recognises the inter-connectedness of human rights. Whilst the Commission intends using the Charter as a monitoring tool, it can also be used by all relevant stakeholders to conduct education and awareness raising on the right to a basic education and in assisting with education planning and oversight.
The Charter provides a statement of the various obligations of the State to ensure the realisation of the right to basic education; notes key shortcomings and inequities; revisits commitments made to address the gaps in achieving quality education and the key role-players are identified.
In the Charter there is acknowledgement of the progress that has been achieved by the democratic government in addressing the grossly inequitable and racially determined apartheid education policies. Despite all these achievements huge challenges remain in this sector and they impact most negatively on the poor and vulnerable in our society thus reinforcing the existing inequality patterns.
The Charter has the potential to benchmark where we are at currently in terms of fulfilling the right to a basic education and where we need to go to ensure that every child receives a quality education.
Opinion piece by Commissioner Lindiwe Mokate, Commissioner responsible for Basic Education and Children
Report launched by the South African Human Rights Commission