Right to Education

We have held two meetings on the right to education in Africa:
• A Litigation Surgery on the Enforcement of the Right to Education in Africa in Dar es Salaam in January
• A Consultative Meeting in Cape Town in March

Litigation Surgery on the Enforcement of the Right to Education in Africa, Dar es Salaam, January

INTERIGHTS and HakiElimu jointly hosted a four-day litigation surgery on the right to education in Dar es Salaam, Tanzania from 25 to 28 January 2011. The meeting was attended by 17 participants from Tanzania, Kenya, Nigeria, South Africa, Swaziland, Uganda, Malawi, and Zimbabwe. The participants were a mix of lawyers, including two lawyers from INTERIGHTS and one from the OHCHR, and representatives of NGOs litigating or working on the right to education in Africa. The objectives of the litigation surgery were to increase the enforcement of the right to education in Africa through developing strategic litigation, to develop jurisprudence on the right to education, to build the capacity of stakeholders to use international and regional human rights law in the enforcement of the right to education, and to build a network of lawyers and NGOs working on the enforcement of the right to education. During the meeting there were presentations of cases on universal primary education, non-discrimination, vulnerable groups, corporal punishment, availability of resources, progressive realisation, and non-retrogression. The meeting was a success in facilitating the sharing of experiences between lawyers, NGOs and facilitators on comparative and international law as well as potential litigation strategies. INTERIGHTS will continue to follow up and offer assistance to participants as the cases are developed and participants are strongly encouraged to continue discussions on a list-serve to ensure that the networking continues.

Cases discussed
On universal free primary education the meeting discussed two finalised cases, one successful (from Nigeria) and one unsuccessful (from Swaziland). Two potential cases were also considered: one concerning government approved fees for primary education in Zimbabwe and one on “non-fee” and illegal fee barriers to primary education in Kenya. With regard to discrimination the cases concerned the failure by the state to prosecute sexual assault on girls in Kenya, expulsion of pregnant girls in Tanzania, expulsion of students for wearing the Hijab in Kenya, and the imposition of quotas on admission to universities in Malawi. On vulnerable groups the cases concerned the failure of the Nigerian state to provide free education to orphans (which has been settled) the rights of prisoners in Nigeria to access higher education, and the failure of the Ugandan authorities to prosecute child slavery and forced labour and thus to protect the right to education. The meeting also heard of a case in South Africa regarding the failure by the state to provide sufficient resources to so-called mud schools to develop acceptable infrastructure in violation of the Constitutional obligation, policy and political promises (which has been settled), as well as a potential case in Tanzania regarding the retrogression in funding of the development of primary education and the resultant drop in reaching targets. The possibility of litigating against corporal punishment was also raised. However, it was agreed that considering societal support for corporal punishment it would be better to implement a long term advocacy strategy against corporal punishment including in the early stages possible litigation against particularly egregious and domestically illegal abuses.

Although there has been limited litigation of the right to education in Africa so far, the wide variety of cases discussed at the meeting showed that there is an increased interest in litigating violations of the right across the continent. Most of the cases discussed during the meeting are either already being litigated or are proceeding towards litigation. The meeting allowed lawyers from INTERIGHTS, the OHCHR and peers from across the continent to input into these cases and strengthen the use of international and comparative law in the arguments being submitted to the courts.

Like all economic, social and cultural rights, litigation of the right to education will require collaboration between lawyers and social movements. During the various discussions, it was apparent that for litigation to have any impact, it needs to be undertaken in conjunction with other strategies used by various groups working on right to education issues. Litigation surgeries are therefore important not only in allowing and encouraging skill transfers between participants and facilitators but also in encouraging inter-disciplinary cooperation. Future litigation surgeries, while keeping their orientation towards strategic litigation, will continue to provide opportunities for the creation of such collaborative efforts. The next litigation surgery will build on the achievements of this past event and improve skill transfers and collaboration between different civil society actors.

For more information, please contact Solomon Sacco.

Consultative Meeting, Cape Town March

INTERIGHTS held a consultative meeting on litigating the right to education in Africa in Cape Town from 23 to 25 March 2010. The objective of the meeting was to discuss litigation priorities with national and international practitioners on the right to education in Africa, and measures that can be taken to encourage and assist litigation at national, sub-regional, regional and international levels in Africa.   The meeting was attended by fifteen national, regional and international experts and activists.  The meeting discussed litigation priorities and challenges, and measures that can be taken to encourage and assist litigation at national, sub-regional, regional and international levels in Africa. The discussion covered a wide range of issues that are impeding the enjoyment of the right to education and opportunities for targeted litigation. In particular there are opportunities to hold governments accountable for their widespread failure to ensure that all children enjoy good quality education.

The right to education is an integral part of the rights protected under various African Union and United Nations treaties. In Article 17, the African Charter provides that ‘Every individual shall have the right to education’. Article 11 of the African Charter on the Rights and Welfare of the Child, adopted in 1990, provides that ‘States Parties to the present Charter shall take all appropriate measures with a view to achieving the full realization of this right and shall in particular: (a) provide free and compulsory basic education...’ The African Commission has made it clear that economic, social and cultural rights are justiciable under the Charter but there have been very few cases on economic and social rights brought before the Commission, and even fewer on the right to education. Part of the reason for this is that local actors continue to see education as a service rather than a right. Capacity building and training sessions and seminars will help to encourage local lawyers to consider the right to education a justiciable right and to bring local and regional cases. 

INTERIGHTS plans to lead and assist in regional and domestic cases on the right to education, including through complementary activities such as litigation surgeries and publications scheduled in the coming years. Despite the fact that some domestic and regional bodies have recognised that economic, social and cultural rights are justiciable there have been very few cases brought. INTERIGHTS plans to support regional and domestic cases on the right to education, complementary activities such as capacity building, litigation surgeries and publications.

A full report of the meeting is available here. For further information please contact Solomon Sacco.