The State’s ineptitude or indisposition to deal with Eastern Cape education is a continuous violation of children’s rights

Author: Akho Ntanjana
Legal intern, Institute for Human Rights and Development in Africa (IHRDA), Banjul, The Gambia

Without citing any empirical evidence, it is known that the quality of school facilities has an indirect effect on learning and ultimately on its output.  For instance, in a study carried out in India (1996), out of 59 schools in a region, only 49 had structures. Of these 49 schools, 25 had a toilet, 20 had electricity, 10 had a school library and four had a television set. In this study, the quality of the learning environment was strongly correlated with pupils’ achievement in Hindi and mathematics.

Further, a research study was conducted in Latin America that included 50 000 students in grades 3 and 4, it was found that learners whose schools lacked classroom materials and had inadequate libraries were significantly more likely to show lower test scores and higher grade repetition than those whose schools were well equipped (see the United Nations Children’s Fund’s paper ‘Defining Quality Education’). There are many other studies done even in Africa, for example in Botswana, Nigeria and Papua New Guinea, indicating similar outcomes.

There seem to be a correlation between good school infrastructures, other quality dimensions (inter alia the quality of content, psychological aspects, quality processes involved) and the achievement of higher grades by learners. In this opinion piece, I examine the state of education in the Eastern Cape, and the failure by the South Africa government to meet its constitutional and international obligations to provide basic education.

The state of education in South Africa, particularly in the Eastern Cape, is a blatant violation of the right to education, including a wide range of consequential rights, and thus inexcusable. In the previous year (2012), whilst addressing the nation, President Zuma declared that: “[The] national government instituted a Section 100 (1)(b) intervention in the Eastern Cape, to assist the department of education to improve the delivery of education. Problems include … a general poor culture of learning and teaching. The implementation of the intervention will continue and we are working well with the province in this regard. We call on all stakeholders to work with us to make this turnaround a success.”

Section 100(1)(b) of the Constitution provides:

“When a province cannot or does not fulfil an executive obligation in terms of the Constitution or legislation, the national executive may intervene by taking any appropriate steps to ensure fulfilment of that obligation. Including –
a) issuing a directive to the provincial executive, describing the extent of the failure to fulfil its obligations and stating any steps required to meet its obligations; and
b) assuming responsibility for the relevant obligation in that province to the extent necessary to:
i) maintain essential national standards or meet established minimum standards for the rendering of a service;”

Despite this ostensibly good gesture from the national government, the situation on the ground is otherwise.

There have been countless ineffectual promises made by the government: former President Thabo Mbeki said: “By the end of this year [2004], we shall ensure that there is no learner learning under a tree, [or in a] mud school …” In the year 2006, former MEC for education in the Eastern Cape Mkhangeli Matomela, said: “I am ­confident we will eradicate mud schools in the next two financial years.” In 2007, former education minister Naledi Pandor said: “Fifty percent of the mud schools will be rebuilt between 2007 and 2009.” In 2011, Basic Education Minister Angie Motshekga said: “By 2014, we will have eradicated all mud schools in the province.” (See Equal Education Law Centre)

Many schools in the Eastern Cape are experiencing one or more of the following difficulties every year: very few teachers; demoralised personnel; overcrowded classrooms; crumbling infrastructure; inadequate facilities and furniture; old or non-existent equipment and insufficient textbooks; no electricity; and no running water. It is difficult to fathom how a culture of learning can be implanted in a learner’s mind when classes are conducted in such horrible conditions. When the Mail & Guardian and the Legal Resources Centre visited schools in the Mount Frere, Libode and Zithulele districts, they found depressing conditions similar to the ones highlighted above (see Mail & Guardian). “I am overwhelmed at the enormous challenges so many schools still face and many are not even on the department’s radar,” said Cameron McConnachie, an attorney for the Centre, a non-governmental organisation fighting for the protection of human rights in South Africa.

As recognised in the Section 29 of the Constitution of the Republic of South Africa, education is both a human right and is a central to the realisation of other human rights. For instance, properly educated citizens can participate fully, with an understanding, in a democracy; education also serves as an empowering vehicle for women and previously marginalised groups, and consequently liberates them from the chains of poverty; education serves to safeguard children from exploitative and hazardous labour and sexual abuse (see General Comment No. 13 of the International Covenant on Economic, Social and Cultural Rights (ICESCR)). Even though the ICESCR is not a binding instrument on South Africa, it is undoubtedly a useful source of guidance in socio-economic rights cases.

The South African Constitution certainly envisions some level of education but it is not so easy to determine its scope. In the case of higher education, the state is merely required to take “reasonable measures” to make it “progressively available and accessible”. As a contrast, the right to basic education appears to be absolute. Some scholars accept that under our Constitution, the basic education is a “strong positive right”, in other words, it can be enforced regardless of the budgetary constraints (see, M Chaskalson et al., Constitutional Law of South Africa 38-9 (5th ed. 1999) (discussing White Paper on Education in connection with constitutional right to education) and E. Berker The Right to Education under South African Constitution (2003)).

In the Governing Body of the Juma Musjid Primary School & Others v Essay N.O. and Others 2011 7 BCLR 651 (CC) case, the Constitutional Court held that:

“It is important… to understand the nature of the right to ‘a basic education’ under section 29(1)(a). Unlike some of the other socio-economic rights, this right is immediately realisable. There is no internal limitation requiring that the right be ‘progressively realised’ within ‘available resources’ subject to ‘reasonable legislative measures’. The right to a basic education in section 29(1)(a) may be limited only in terms of a law of general application which is ‘reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom’. This right is therefore distinct from the right to ‘further education’ provided for in section 29(1)(b). The state is, in terms of that right, obliged, through reasonable measures, to make further education “progressively available and accessible (para 67).”

In addition, Section 28(2) of the Constitution unconditionally states that the child’s best interests are of paramount importance in every matter concerning the child. The same language is also used in Article 4 of the African Charter on the Rights and Welfare of the Child (ACERWC) and in Section 9 of the Children’s Act 38 of 2005.

There has been a number of enforcement claims against the state in relation to socio-economic and even education rights. For instance in Government of the Republic of South Africa and Others v Grootboom and Others 2000 11 BCLR 1169, petitioners sought to enforce their right to access to housing; in Minister of Health v Treatment Action Campaign 2002 5 SA 721 (CC), the issue was access to health care services; and in Khosa v Minister of Social Development; Mahlaule v Minister of Social Development 2004 6 SA 505 (CC), it was permanent resident seeking to enforce social security rights.

Recently, Equal Education Law Centre filed a case at the Bisho High Court against the state for two learners of Moshesh Senior Secondary School (Palesa Manyokole and Two Others v District Director Maluti and 7 Others Bhisho High Court Case Number 603/12). It specifically claimed that the school suffers from lack of management and governance which negatively affects teaching and learning. There is also a dire shortage of teachers and problems such as lack of teacher discipline with teachers arriving at school late, leaving early and often being absent from classes. There is also a serious shortage of teaching and learning materials. The state identified Moshesh as an ‘underperforming school’ (in accordance with the Schools Act, 1996), but the district and provincial officials had failed to put measures put in place to ensure that effective teaching and learning occur and that the school turns around its performance.  It seems the parties entered into an agreement for settle the matter out of court.

In addition to its constitutional obligations, the South African government has voluntarily assumed international obligations through its ratification of the Convention on the Rights of the Child (CRC); the Africa Charter on the Rights and Welfare of the Child (entered into force in 1999), as a signatory to the ICESRC, and the Dakar Framework For Action. These actions indicate that the government has committed itself to provide quality education to its children.

General Comment No. 13 and General Comment No. 11 of the ICESRC provide a clear meaning of the right to basic education. Common features of the basic education right under ICESRC include availability, accessibility, acceptability and adaptability (para 6). Education should at all costs be made available to learners, this implies the provision of adequate proper schools and qualified teachers (para 6(a) of General Comment No. 13). So for example mud schools with no desks and chairs somewhere in Transkei district would not meet the required international standard. In addition, government must ensure access to education. This means that education which meets international benchmarks has to be available, be accessible and importantly be affordable to all (para 6(b) General Comment No. 13).

The element of “availability” as mentioned above requires the provision of essential resources in schools and the maintenance of school infrastructure. The state must provide safe drinking water, sanitation facilities, classrooms, desks and chairs to all schools. Among other core obligations bestowed on South African government include the provision of textbooks, blackboards, and stationary. The African Committee of Experts on the Rights and Welfare of Child (ACERWC), in the Nubian case found that Kenya has violated Article 11(3) of the African Children’s Charter which provides for the right to education, see AfricLaw and Institute for Human Rights and Development in Africa v The Government of Kenya. Member states are obliged to undertake all appropriate measures, with a view to achieving full realisation of this right. The Committee specifically pointed out on para 63 (reads with para 64): “Article 11(3)(a)  requires in particular the provision of free and compulsory basic education, which necessitate the provision of schools, qualified teachers, equipment and well recognised corollaries of the fulfilment of this right.” Despite these obligations, South African schools, chiefly in the Eastern Cape are in a shocking state. The right to basic education would definitely remain a pie in the sky for thousands of children if the state is not honouring its obligations.

In conclusion, considering its immense resources, the present state of education in South Africa is objectionable and should not be accepted. The real problem is not the availability of resources as such but a multitude of other problems such as corruption, lack of capacity, incompetence, uncaring leadership, a lack of commitment to serve with diligence and excellence, effective planning, ineffective system and poor accountability. These are some of the obstacles which halt progress in the Eastern Cape. Civil society organisations, non-governmental organisations together with community organisations and everyone concerned should persist in engaging the state until the right to education is fully realised. The state must monitor the work (or lack thereof) of those who are responsible for education in the Eastern Cape. Erring officials should be sacked summarily and face the full might of the law regardless of their political affiliations. President Zuma should start to walk the talk for the sake of the future of South Africa. A resolute political will from those wielding power is the key. As has been the case in the past socio-economic rights cases before the Constitutional Court, it is hoped judicial advocacy will continue with some degree of respect to the executive organ of the state.

About the Author:
Akho Ntanjana is a legal intern at the Institute for Human Rights and Development in Africa, in Banjul, The Gambia. He holds a Bachelors of Law (LLB) from the University of Fort Hare and an LLM in Human Rights and Democratisation in Africa, University of Pretoria. His research interests include human rights, constitutional law, and public policy and good governance.