The Nameless Ones: Educating Undocumented Learners

Thousands of learners across South Africa are being excluded from schools as a result of their failure to provide their schools with identity numbers, passports or permits. This follows the announcement by various provincial departments of education that funding transfers to schools for the Norms and Standards, post provisioning allocation and National School Nutrition Programme (NSNP) would be based only on learner numbers where valid South African identity, passport and permit numbers have been captured on the South African Schools Administration & Management System (SASAMS). This means that undocumented South African learners, as well as foreign learners, will no longer receive any education funding from government.

Schools that are most affected by this decision are the no-fee schools that are entirely dependent on state funding. These are the poorest schools and comprise around 60% of all schools in the country. The funding transfers are used by the schools to provide essential resources such as textbooks, stationery, as well as daily meals. Funding is also provided to pay for essential maintenance and municipal services. The decision also impacts on the provision of teachers to schools, as teacher posts are only allocated to those learners with valid identity numbers, passports and permits (as opposed to the number of children actually present in classrooms).

In the past, schools were funded based on actual numbers of learners, regardless of whether they had valid identity documents, passports and permit numbers. The SASAMS was introduced in 2013 and is a database that (theoretically) contains all the personal and academic information of learners attending public schools in South Africa. The SASAMS was introduced by the Department of Basic Education in an attempt to improve the accuracy of its resource distribution and prevent the problem of “ghost learners”. This is the phenomenon where schools request funding for more learners than are present in the school and then embezzle the additional funding. By only providing funding for learners with valid identity numbers, passport, or permit numbers the Department of Basic Education is better able to combat this fraudulent conduct. The decision has had unconstitutional consequences.

The decision to exclude undocumented learners from funding was announced in March 2016 to all schools in the Eastern Cape. Similarly, schools in KwaZulu-Natal were informed of the decision on 24 March 2017. On Friday, 26 May 2017, the Legal Resources Centre, on behalf of the Centre for Child Law and the School Governing Body of Phakamisa High School in the Eastern Cape, launched an application in the Grahamstown High Court to declare the decision of the Eastern Cape Department of Education (ECDOE) unconstitutional.

The application argues that, by withdrawing funding from undocumented learners, the ECDOE is violating the learners’ constitutional right to basic education, particularly when it is read in conjunction with the learners’ rights to dignity (and the right to equality and non-discrimination).

The funding failure is also a gross violation of the learners’ constitutional rights to basic nutrition (section 28) and to have access to sufficient food (section 27). Furthermore, the decision to exclude learners without identity number, passports or permits is not in the best interests of the child and violates section 28(2) of the Constitution.

Many schools have been negatively affected by this decision. Phakamisa High School, the second applicant in the case, has 99 learners that were excluded from funding for the 2017/2018 financial year. The school has been forced to use funding from their maintenance budget to supplement the shortfall in their NSNP budget, while simultaneously reducing the food portions for all the learners in the school. Many other schools have simply decided to exclude undocumented learners or refuse them admission to the school.

It is usually the poorest and most vulnerable learners that fail to obtain their identity documents. This is a problem that disproportionately affects poor black learners living in rural areas of the country where access to resources are scarce and children are raised by grandparents or other extended family members. Often parents or guardians fail to take the necessary steps to register the birth of a child due to a lack of access to an office of the Department of Home Affairs, the parents not being in possession of the necessary documents to have the birth registered, or as a direct result of migrant labour.

The application seeks to have the decision by the ECDOE set aside and for the Department to revise teacher post establishments and funding in line with actual numbers of learners in schools, regardless of their registration status. The LRC hopes to set a precedent that can be extended to other provinces where similar measures have been announced.

Cecile van Schalkwyk – 2017 Bertha Justice Fellow

The Annual Bertha Convening is supported by the Bertha Foundation. We would like to thank them for their support of the next generation of young human rights lawyers. Read more about the Bertha Foundation and Bertha Fellows here: http://berthafoundation.org/

Advertisements

OPERA: How Strategic Litigation + Strong Data = Implementation

In a new case study, the Center for Economic and Social Rights (CESR) and the Legal Resources Centre (LRC) reflect on a joint project piloting the use of the OPERA framework to analyze implementation in a case on the right to education in South Africa.

CESR and the LRC piloted OPERA in Madzodzo v Department of Basic Education, a case about chronic school furniture shortages that was brought by the LRC on behalf of the Centre for Child Law and a number of schools. In Madzodzo, the South African High Court declared that the government’s failure to address protracted delays in providing desperately needed desks and chairs to schools in the Eastern Cape was a violation of the Constitution’s protection of the right to a basic education. However, various rounds of litigation – resulting in multiple agreements, extensions, and a decision from the High Court – had not produced the desired results.

Madzodzo reflects a broader trend in socio-economic rights litigation in South Africa over the past 20 years that has seen courts increasingly ordering “dialogic” remedies—meaning the responsible government agency retains discretion to determine how it will rectify a rights violation. Unfortunately, government agencies have frequently failed to properly implement these types of orders, limiting the transformative potential of strategic litigation on economic and social rights.

“After years of engagement with the education department, thousands of learners continue to spend their days sitting on the floor, or squeezed together at desks that are broken, not designed for their age or otherwise unsuitable,” noted Cameron McConnachie, attorney at the LRC. “In this context, we were eager to explore ways to facilitate more constructive, evidence-based dialogue with the education department, to strengthen accountability for their failure to implement the court’s decisions.”

OPERA, which stands for Outcomes, Policy Efforts, Resources and Assessment, is an analytical framework that supports human rights advocates to use innovative methods for collecting, analyzing and presenting evidence of non-compliance with economic and social rights standards. When combined, the four steps enable a more convincing demonstration of the links between policies on paper and their impact on the ground. The Madzodzo pilot explored its potential for identifying quantitative and qualitative indicators to track progress in implementation and for gathering information on those indicators. This information was used to support follow-up legal proceedings, as well as dialogue on implementation, more broadly.

CESR and the LRC used OPERA to carry out a rigorous analysis of the documents submitted in the case, finding that up to 40% of all schools in the Eastern Cape were in need of adequate furniture, despite the allocation of approximately R290 million for such goods in the province between 2013 and 2015. Procurement and delivery processes were found to be characterized by irregularities, lengthy delays and poor management. We also found that past solutions failed because they did not address root causes such as poor information management systems on the school, district, provincial and national levels or the absence of furniture as an element in any infrastructure plan for the school system.

Nevertheless, the starkest takeaway from this analysis was the complete unreliability of the education department’s data on school furniture. Our subsequent strategy focused in large part on obtaining better data. We pursued this strategy in a number of ways:

  • by providing detailed recommendations to the national and provincial education departments on how to conduct an effective furniture audit, as well as on improving its information management systems;
  • by requesting access to relevant databases maintained by the education departments; and
  • by experimenting with mobile messaging platforms for communication while gathering information from schools directly.

Interestingly, the pilot project illustrated that the four steps of OPERA could align neatly with the various components of a judicial decision – a discovery that eventually facilitated significant steps towards compliance. In particular, it provided a cohesive system for categorizing, systematizing and, importantly, identifying gaps in the data that had been submitted in the case.

Systematizing that data, in turn, deepened our understanding of the political and structural limitations inhibiting productive operations within the department. The order made by agreement in February 2016 reflects the significant impact of applying OPERA to the case, in that it set out significantly more detailed obligations than previous orders, in terms of remedial actions to be taken. This has yielded greater visibility of the problem; increased the information available about it; and, importantly, helped identify energetic, dedicated officials willing to engage with it.

Read the final report: CESR_LRC_OPERA_Pilot.

Update: European Court to consider right to education

During the course of today, 20 October 2016, the European Court of Human Rights will receive submissions drafted by the Legal Resources Centre, acting as an intervening third party in the case of KOSA v Hungary.

In this case, Amanda Kosa, the applicant who is part of a minority group, is arguing that the Hungarian government has breached her right under the European Convention on Human Rights, to an education free from discrimination. The bus service to her previous school was cancelled and children from her community are now attending a school closer to their settlement, forcing the children to be separated from their fellow Hungarian learners.

The European Court will be asking three questions:

  • Have Hungarian domestic remedies been exhausted?
  • Has there been a breach of the applicant’s right to an education free from discrimination?
  • Has the applicant been denied the right to education through the cancellation of the bus service connecting her neighbourhood with a school providing integrated education for children from various social backgrounds?

In our submissions, we argue that –

  • Our High Court has, drawing on international law (including article 13 of the International Covenant on Economic, Social and Cultural Rights, and General Comment 13 of the Committee on Economic, Social and Cultural Rights) held that in appropriate cases, upholding the right to basic education in section 29 of the Constitution requires the provision State-funded transportation for learners.
  • The evidence of the importance of this finding is stark in the Eastern Cape, where much of our work takes place. The need for learners to walk very long distances to school often leads to students missing days of school, dropping out of school, as well as being victims of criminal acts during their daily commute on foot.
  • It is our submission that the provision of State-funded scholar transportation, in appropriate cases, is a necessary aspect of the fulfilment of any right to education.
  • This is especially true when those requiring the fulfilment of their right to education have faced historical unfair discrimination, such as minority groups, and a denial of access to education would perpetuate this discrimination.

The submissions are attached: kosa-v-hungary-lrc-written-submissions-final-draft

European Court of Human Rights to consider Right to Education

 

learners-in-the-eastern-cape-on-their-long-walk-to-school

Photo: LRC attorney Mandira Subramony  with the Eastern Cape learners in their long walk to access education facilities in the province

The LRC have been granted leave to intervene at the European Court of Human Rights, in a matter against the government of Hungary. The case of Amanda Kosa v Hungary challenges a possible infringement of the right to education in the European Convention on Human Rights.

What’s the case about?

Huszar telep is a settlement in the Nyiregyhaza region of Hungary. It is made of up mostly Romani people. The Roma or Romani people are a nomadic ethic minority group, living in a number of countries in Europe – including Bulgaria, Slovakia, Romania, Serbia and Hungary. They are one of the largest ethnic minorities on the continent.

In 2011, the Greek Catholic Church in Nyiregyhaza opened a segregated school, near Huszar telep, serving only Roma children from the settlement. Prior to this, the Roma children had been attending an integrated school, 2.3 kilometres away from the settlement. The mayor and town council of Nyiregyhaza had been providing a bus to take the children to the integrated school. At the same time as the establishment of the Greek Catholic school, the children’s bus was stopped by the town council.

Amanda Kosa, the applicant before the ECtHR, is one of the pupils attending the segregated school.

The Chance for Children Foundation (a foundation representing rights of children from disadvantaged backgrounds in Hungary) took the case to court in 2011, suing the Greek Catholic Church for illegal segregation.

The case made its way through the Hungarian legal system, ending at the Kuria – the highest court in Hungary. The Kuria ruled in favour of the Greek Catholic Church, on the basis that the free choice of religion at school supersedes the prohibition of segregation. However, those in favour of integrated schooling do not believe that the school was being chosen because it was being run by Greek Catholics, but rather because it was close to the settlement and parents could not afford the necessary city bus transport after the subsidised bus had been cancelled.

The European Court of Human Rights will be asking three questions:

  1. Have Hungarian domestic remedies been exhausted?
  2. Has there been a breach of the applicant’s right to an education free from discrimination?
  3. Has the applicant been denied the right to education through the cancellation of the bus service connecting her neighbourhood with a school providing integrated education for children from various social backgrounds?

So why are we getting involved?

Question (3) is where the LRC’s input will be important.

In 2015, the LRC won an important case in the Grahamstown High Court. See Tripartite Steering Committee and another v Minister of Basic Education and others Case no 1830/2015 (26 June 2015). In it, Plasket J, finding in our favour, stated unequivocally that, “where scholars’ access to schools is hindered by distance and an inability to afford the costs of transport, the State is obliged to provide transport to them in order to meet its obligations in terms of s 7(2) of the Constitution, to promote and fulfil the right to basic education” (paragraph 19).

In light of our work on scholar transport in the Eastern Cape, we can play an important part in demonstrating to the ECtHR how and why the provision of transport to scholars impacts on the fulfilment of the right to education.

The ECtHR is not able to overturn the decision of the Kuria. It will decide only whether there has been a violation of the Convention or the Protocols, and may award “just satisfaction” (i.e reparations) if the internal law of Hungary has allowed only partial reparation to be made.[1]

Our written submissions are due on 20 October 2016.

 

[1] See Article 41