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

16 Days: The Vulnerability of Child Migrants

During 16 Days of Activism for No Violence against Women and Children, the Legal Resources Centre will be sharing the stories of survivors of gender based violence who fled their countries to seek asylum in South Africa. Many women, children and sexual and gender non-conforming persons endure horrific hardship, sexual persecution, assault, rape and discrimination in their countries. When they arrive in South Africa their hardship does not end. Some women experience sexual persecution while crossing the border, while others may experience oppression, intolerance and discrimination while trying to create a life in South Africa. When they enter the asylum seeker process, they often endure further persecution. These are their stories.

The vulnerability of child migrants

G was born in Malawi. She lived with her mother who is unemployed and very sick. Her mother could not take proper care of G, who would miss school to look after her mother; sometimes for more than 2 weeks at a time. Her father was working in South Africa and providing money for the family but it was not enough to cover the family’s basic needs. When she was 15, G’s father sent for her and her sister. She now lives with him in South Africa.

In January this year, G and her sister went back to Malawi to visit her mother; a trip that her father had arranged with the help of a truck driver. On their way back to South Africa, the truck driver made a stop at a garage to rest for the night. While her little sister was sleeping, the truck driver made advances at G who rejected them. The truck driver then tried forcing himself on her and she started screaming. This woke up her little sister, who hit him, which made the truck driver let G go. After that incident, the truck driver refused to give the sisters food or water and refused to stop the truck when the sisters wanted to use the bathroom. They did not tell anyone about this incident because the truck driver had threatened to kill their father.

A study of unaccompanied minors travelling across the border conducted by Save the Children in 2007 found that children are the most vulnerable group of people and more likely to be exploited by “guides”. More recent reports by UNICEF, operating in the border town of Musina, indicate that this vulnerability is ongoing. Their reports indicate that the dangers faced by unaccompanied children include being targeted by criminals and being vulnerable to sexual violence on the border. Guides were commonly the perpetrators of violence against the children and were the most likely group to elicit bribes from the children. The study found that 14% of children had been assaulted whilst attempting to cross the border.

 

 

16 Days: A Victim of Civil War

 

During 16 Days of Activism for No Violence against Women and Children, the Legal Resources Centre will be sharing the stories of survivors of gender based violence who fled their countries to seek asylum in South Africa. Many women, children and sexual and gender non-conforming persons endure horrific hardship, sexual persecution, assault, rape and discrimination in their countries. When they arrive in South Africa their hardship does not end. Some women experience sexual persecution while crossing the border, while others may experience oppression, intolerance and discrimination while trying to create a life in South Africa. When they enter the asylum seeker process, they often endure further persecution. These are their stories.

A victim of civil war

A is a 40-year-old women who was born in Burundi to a Tutsi mother and a Hutu father. Like in neighbouring Rwanda, the tension between the two ethnicities led to untold suffering for the respective populations, with an estimated 250 000 – 300 000 people killed in Burundi during their civil war from 1993 to 2005. In 2005, the rebel group, National Council for the Defense of Democracy – Forces for the Defense of Democracy, who are pro-Hutu, took power and Pierre Nkurunziza was elected as president.

Since then, conflict has not abated in the country. When A made her asylum application in 2011, reports indicated that up to 20 people were being killed every day in politically-motivated murders.

A’s hardship began in 1995 when Hutu rebels killed her mother. Fearing that he would be killed as an act of revenge for his wife’s death, A’s father fled Burundi. A was raped by rebels and contracted HIV. Daily, she was threatened by the rebel group. Fearing she would be recruited into the group, she decided to flee the country. In 2005, she crossed the border into Tanzania with a group of other refugees. Due to the proximity of Tanzania to Burundi and fearing for her safety, she decided to travel to South Africa.

When she applied for asylum, the Refugee Status Determination Officer (RSDO) rejected her application stating that she would be safe to return to Burundi. The officer claims that Burundi is “on its way to increased stability” and that, “more than 46 000 Burundian refugees want to return”.

Ahead of country elections in 2015, Amnesty International has indicated that unrest continues. In a report entitled, “Burundi: Locked down: A shrinking of political space” (July 2014), the international body has documented an increase in violations of individuals’ rights to freedom of association and peaceful assembly, including the harassment and intimidation of activists and journalists. While A is not a member of any political party, she knows that the people who killed her mother are still living in her home village. As a half-Tutsi, she fears ethnic persecution by the Hutu majority, who controls the government and police services.

16 Days: Escaping traditional practices in Kenya

 

During 16 Days of Activism for No Violence against Women and Children, the Legal Resources Centre will be sharing the stories of survivors of gender based violence who fled their countries to seek asylum in South Africa. Many women, children and sexual and gender non-conforming persons endure horrific hardship, sexual persecution, assault, rape and discrimination in their countries. When they arrive in South Africa their hardship does not end. Some women experience sexual persecution while crossing the border, while others may experience oppression, intolerance and discrimination while trying to create a life in South Africa. When they enter the asylum seeker process, they often endure further persecution. These are their stories.

Escaping traditional practices in Kenya

P is a young mother who was born in Kenya. She belongs to the Kikuyu tribe but her mother and sisters belong to a sect called the Mungiki. The sect are known as the mafia of Kenya and believed to be comprised of ethnic Kikuyu’s. Their doctrines are based on traditional practices, including female circumcision (also known as female genital mutilation, or FGM) which they have been accused of forcibly practicing on women. P’s two cousins had died during the procedure and she feared infection, so was not practicing circumcision herself. Being Christian, she also felt it went against her religious beliefs.

One night, a group from the sect broke into her house and attempted to circumcise P and her 9-year-old daughter. She escaped off the balcony and went into hiding. Her life became difficult after that as she did not have a permanent home and the sect was able to trace her because of her scholl-going children. After many months of being in hiding with her children, sect members found her and burnt down the shack that she was living in. She escaped to South Africa with her children where she applied for asylum.

The Refugee Status Determination Officer (RSDO) who interviewed P rejected her application for asylum, stating that FGM was only practiced amongst young unmarried women and that P was old and married. The officer told her that P did not have a well-founded fear of persecution because the cultural practice had been banned in Kenya.

In 2008, the United Nations recognised FGM as a human rights violation. The Convention on the Elimination of all forms of Discrimination against Women (CEDAW) recognises FGM as a harmful traditional practice and has called for its end. In 2011, Kenya enacted the Prohibition of Female Genital Mutilation Act. Although it is difficult to find recent research reports on the prevalence of FGM in Kenya since its criminalisation, indications are that the practice has been reduced and that incidences of FGM are decreasing overall. However, FGM is practiced differently and to varying degrees according to tribe and religion. The World Health Organisation recognises 4 types of FMG and studies show that there is a 27% prevalence rate in Kenya.