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.
Child marriage affects girls in more ways than one. They are neither physically nor emotionally ready to become wives and mothers at the age that they get married. Child marriage results in girls being disempowered, dependent on their husbands and deprived of their fundamental rights to health, education and safety.
The health of a child bride diminishes from the date of her marriage, as she “becomes a woman” before her body has been allowed to develop naturally. As a result of her age, she is less able to negotiate and articulate her rights to bodily autonomy. Access to healthcare and sexual reproductive healthcare, in particular, is difficult in the rural context and is exacerbated within the context of a rural girl child.
She stands a greater risk of experiencing dangerous complications in pregnancy and during childbirth. Her exposure to HIV/AIDS infection, as well as other sexually transmitted diseases, increases. In the context of poverty, where she is reliant on her husband and her in-laws to care for her, she is at greater risk of having her rights to healthcare denied.
Many girls suffer domestic violence from their husbands and even from their in-laws. Her ability to protect herself and to have her bodily integrity respected is ignored. In instances where her own family has consented to the marriage, it becomes increasingly difficult to leave her abusive husband.
Child marriage usually means the end of a girl’s formal education. Once married, girls are burdened with their new responsibilities as wives and mothers and often stay at home as a result. A girl child’s husband or in-laws may not be supportive of her education and burden her with new adult responsibilities, leaving her no time to attend school. She may become entrenched in the cycle of poverty because, with little access to education, her opportunities to seek employment outside of the home diminish.
What can be done?
Government should set clear and consistent legislation that establishes 18 as the minimum age of marriage and remove any laws which allow for parental consent, for the following reasons:
Setting the legal age for marriage at 18 provides an objective, rather than subjective, standard of maturity, which safeguards a child from being married when they are not physically, mentally or emotionally ready.
The existence of laws which prohibit child marriage is an important tool to help those working to dissuade families and communities from marrying off their daughters as children.
It is imperative that children are recognised in the law as being children and are afforded the full protection of the law. When a child does not have the right to vote or enter into other contracts before 18, why is marriage allowed?
Ending child marriage is not only the right thing to do, but is also an economically practical decision for empowering young female leaders who can support themselves and uplift their communities.
This post was developed as an informative tool for women. Please visit your nearest LRC office for further advice and assistance. Written by Naushina Rahim
The fundamental right to education must include quality education – and standardised measures of outcomes must be introduced to ensure equality, quality and accountability. The future development agenda should be committed to its enforceability. These were some of the conclusions following two days of thought-provoking presentations and discussions during a conference held last month.
The conference, “The Justiciability of the Right to Education in the post-2015 Development Agenda”, and was held on the 25 & 26 May 2015 in India, by the Legal Resources Centre (LRC), in collaboration with the Centre for Law and Policy Research (CLPR). See the CLPR to download the presentations.
The UN Special Rapporteur on the Right to Education, Dr Kishore Singh, opened proceedings by highlighting the fact that this right is justiciable in many countries, with India leading the way. In relation to the development agenda, Singh highlighted the fact that, for various reasons, the Millennium Development Goals (MDGs) have not been achieved as envisaged. Two of the principal reasons for this are a lack of financing and a lack of monitoring – issues that would need to be addressed in the post-2015 Sustainable Development Goals (SDGs).
Overview of presentations
Swati Sharma of Centurion University discussed the role of public-private partnership and corporate social responsibility in respect of education. She emphasised that, while state investment in education was a priority, the burden should be shared with the private sector, arguing that skills development was a key factor in achieving quality education and that businesses can play a key role in skills development and ensuring the right to education generally.
Professor Sandra Fredman of Oxford University gave a very informative overview of the right to education. She explored the relationship between development goals and human rights. She highlighted the fact that, as the MDGs focussed on enrolment, there was no measure of the quality of education. She noted that the SDGs are more ambitious and focus on “equitable quality education” and “lifelong learning for all”.
Professor Salomao Ximenes of the Sao Paulo Federal University informed participants of the education litigation which has taken place in Brazil. In particular, a recent case concerned the lack of pre-school places available in Sao Paulo. In 2012, the court ordered that a public hearing be convened to deal with the matter, and ordered that 150,000 pre-school places be made available, and that the municipality had six weeks in order to present a plan to the court setting out how this would be done.
Sarah Sephton, Cameron McConnachie and Jason Brickhill of the Legal Resources Centre provided details of the cases litigated in South Africa, and the remedies and enforcement mechanisms available through the courts. The strategy used has been to start with smaller cases, addressing issues such as furniture, then move onto larger and more complex cases. They have not yet tackled the issue of the quality of education, an area of litigation the LRC are hoping to embark on.
Jason Brickhill spoke about enforcement measures, such as the recent appointment of a “claims administrator” to oversee the correct payment of R82 million of teachers’ salaries. He ended on a positive note emphasising that the successes of the litigation so far.
Jayna Kothari, Aparna Ravi and Varsha Iyengar from CLPR began the second day of the conference by presenting on education litigation in India. The most important legislation passed in respect of education in India has been the Right to Education Act 2009, which provides for free and compulsory education for 6 – 14 year olds. Controversially, the Act contained a clause which stated that private schools must admit 25% of children from disadvantaged areas, for a fixed amount of compensation to be paid by the state. This has produced unintended consequences. Private schools challenged this through the courts, resulting in funded and un-funded minority schools being exempt. This has opened a floodgate of schools which claim they should be exempt as they are a “minority” school.
Kothari gave a presentation on remedies in India, explaining the challenges that have been met in designing remedies for education cases. Carefully worded remedies are necessary. However, the court has refused to grant orders and, instead, put in place a High Powered Committee to deliberate a plan for the right to education, to meet every month. On the one hand, this process creates a participatory process whereby stakeholders are able to be engaged with the enforcement of the RTE Act, and to design policy in relation to it. However, on the other hand, it has been very difficult to suggest accountability or monitoring measures to the government.
Niranjan Aradhya of the Centre for the Child and the Law in India gave an in-depth analysis of the rights and limitations as set down in the Right to Education Act 2009, explaining that, despite the Act, inequalities in the education system in India remain glaring. He made suggestions for the post-2015 development agenda; that 15% of GDP of states is spent on education, as well as checks on privatisation, commercialisation, corporatisation of education, and a re-emphasis on education as a social good.
Ramya Jawahar and Gowthaman Ranganathan of the Alternative Law Forum (ALF) spoke of the various methods employed by ALF to enforce socio-economic rights. They use an inter-disciplinary approach combining research and the law to achieve the greatest effect. They also highlighted the wider issue of the government’s tightening of funds in the non-profit sector, referring to recent cases whereby the accounts of Greenpeace, the Ford Foundation and Amnesty International had been frozen.
Avni Rastogi of Transparent Cities Network and the Community Service and Outreach team gave a detailed explanation of the mapping and data collection methods which can be used to collect accurate data to present to the court. The methods provide imaginative and reliable solutions which could support education litigation.
The conference concluded with a discussion of three principal themes which had emerged: i) the role of litigation, ii) the issue of equitable and quality education, and iii) education in relation to other issues. In relation to litigation, a principal concern is that litigation needs to change on the ground and engage with communities. In respect of quality education, a principal issue is that of monitoring and measuring outcomes. As an input method to achieve better outcomes, a suggestion was further teacher-training and improving the quality of teachers. Governments need to be held accountable if they are not attaining the goals set out in the post-2015 development agenda. Governments must invest more in education and regulate the private sector.
Dr Kishore Singh closed the conference with confirmation that he will ensure the issues discussed at the conference will be incorporated to discussions surrounding the post-2015 development agenda. It is clear that principal concerns are the measurability of quality education and accountability of governments. In terms of litigation, the countries represented at the conference have developed jurisprudence whereby the right to education is enforceable through the courts, and it is hoped that many more jurisdictions will follow suit.
Thousands of learners in the Eastern Cape continue to walk long distances each day to attend school; sometimes for more than 12 kilometres and for over four hours, through bushes, next to busy roads, and over flooded streams. Their routes are often unsafe, with armed threats and thefts a common occurrence, making it a feat to get an education.
Walking for so far to attend school means learners have less time to study at home. Some have to miss final exams and repeat grades. Sihle*, a learner at Mizamo High School, reaches home at 20:00 and has no time left to study before getting up at 4:30 to walk to school in the morning. He has had to repeat a grade and keeps getting lower marks. Many learners cannot attend school on rainy days and have to stop going to school altogether during the winter months, when it is too dark to walk to and from school. Pumza*, also from Mizamo, walks two hours each way. She had to miss her final exam last year, when a dam flooded the path, making it impossible to cross. Lini* has also failed a grade. She was recently threatened with a knife by two men, who took her money, phone, and books. She has now stopped attending school in the winter because it is too dangerous when it is dark.
Some children prefer not to risk taking their textbooks to school, in case these are stolen, along with their money and phones. Anna*, of Solomon Mahlangu Senior Secondary School, has had her watch and school bag stolen on the way to school and has been approached and threatened several times. Out of precaution and fear of losing her books again, she now leaves them at home. School shoes are not off limits for thieves; when Zama* of Mizamo High School tried to stop some thieves from stealing his school shoes and his school bag, they hit him and threatened to kill him.
Female learners are also afraid of being raped on the journey. Walking to school one day, Siya*, a learner at Mizamo HS, was the unfortunate witness of an event no child should ever experience. Three men approached a little girl walking in front of her and asked her for money and her cell phone. Since the little girl had neither, they proceeded to rape her and threatened to kill her. Afraid for her own life, Siya ran away, leaving the other girl alone. “My heart felt so heavy because I couldn’t help her,” she says, “It killed me inside.” Afterwards, Siya was afraid she would suffer the same fate and thought about dropping out. If it had not been for her sick mother and difficult situation at home, and her desire to improve her life, she might have. Three men attempted to rape Yolisa*, of Solomon Mahlangu HS, but she screamed enough to make them run away. Yolisa walks for four hours each day to attend school and is now afraid to keep up her education.
The current scholar transport programme is not implemented equitably. Thousands of applications from learners every year receive no response from the National Department of Basic Education. Meanwhile, even the policy recommended by the Minister of Basic Education, the Department, the MEC for Education and the Eastern Cape Department of Education, provides transport only to learners who live more than 5 kilometres from school, denying transport to anyone below that cut-off or who can access public transport or a closer school. The Department has transported the same number of learners (56 000) annually for the last four years. And yet, in that same period, the scholar transport budget has more than doubled; from R210 million in 2011 to R430 million in 2015.
This policy continues to fail thousands of children. The proposed policy does not consider other challenges learners face that factor into their journey; including weather and safety. It does not give families and learners the opportunity to choose between different programmes at schools, limiting them to the closest school. Moreover, though public transportation may be available at some locations, it is often a costly additional burden on already limited family resources.
Mr Bathini Dyantyi, who represents the Tripartite Steering Committee of three schools, and more than 150 learners, represented by the Legal Resources Centre, are approaching the Grahamstown High Court on Thursday, 11 June 2015, seeking an order that will give them scholar transport. If they are successful, it will also set in motion a process that will provide transport for thousands of learners who qualify for scholar transport but don’t receive it. They seek transportation within 30 days, a comprehensive database of qualifying learners within 30 days, and transport for all of those children within 90 days.
As reasons for their failure to provide scholar transport, the government cites the lack of infrastructure in rural areas, poor coordination between different departments, corruption, ineffective compensation, poor monitoring of the system and limited funding. The government has asked for the application to be dismissed or, at least, postponed in order to give them an opportunity “to get their house in order” and finalise a scholar transport policy.
But while we wait for the government to get their house in order, thousands of learners continue to face serious dangers on the way to school and are deprived of their constitutional right to education. These learners do not have the means to provide transport for themselves – it is the government’s responsibility to do so.
By: Patricia Alejandro
*Not their real names
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