Kandala Lupwana John South African Research Chair in International - PDF document

Kandala Lupwana John South African Research Chair in International Law University of Johannesburg Faculty of Law Cell: 27 760663472 Email: okandala@yahoo.fr The Enforcement of Socio- economic and Human Rights in South Africa: The Right to education Session “Children, Youth and Human Rights” Friday 3, November 2017 (08: AM) Abstract* University students are claiming that they are entitled to free education and that fees must fall to allow them enjoy the right to education as enshrining in the Constitution. However, the government and University administrators have disagreed and argue that free education is not affordable nor is it fair. Neither side has focused on interpreting the requirements of the constitution and examine the various facets of this rights in light of the relevant international law, academic writings, foreign case law and those decided by the South African Constitutional Court in relation to similar rights. Therefore this paper critically evaluate the arguments that have been made in light of section 29 (1) (b) of the South African constitution which provides that ‘everyone has the right to further education, which the state, through reasonable measures, must make progressively available and accessible’ . In order to reach a conclusion as to what the constitution requires in relation to higher education, it is expected that the paper will consider international law, particularly the approach developed by the United Nations Commission on Economic, Social and Cultural Rights. The reference to the UNCESCR arise because section 39 (1) of the SA constitution provides that when courts interpret the Bill of rights they must consider international law. In generic terms, international law means the binding or non-binding agreements, and customary international law.

1. Background to the study It is generally accepted that education is fundamental to a well-functioning democracy. The link between education and democracy provides the need to improve people’s mind to a certain degree in order to establish democratic governments. 1 Education also play an important role in the context of a knowledge society. In this regards, Darlin states: “ We are entering a knowledge society since the speed of the changing process is increasing and since the new society demands new, increasing and greater qualifications of each of us. Education will no longer be something linked to a certain range but will be a necessity and a self-evident part of everyday life to all ranges, social classes and occupational groups. We are already there. We know that ‘life - long education’ has become a reality ”. 2 This assertion gained momentum in the ninety’s when world leaders agreed on the Millennium Development Goals (MDGs), 3 which were replaced by the Sustainable Development goals/SGDs in 2015 . 4 In order to make the MDGs tool in Africa, African leaders adopted the New Partnership for African Development (NEPAD) which requires among other things, each country to play a role, in particular in eradicating poverty, hunger as well as achieving universal primary school. 5 Today, these goals have been translated in the African road map strategies for the implementation of the agenda 2063. However, although Africa has the potential to achieve these goals, in practice it has not succeeded as poverty on the continent still a great concern. In the era of education however, few countries, including Ghana and South Africa have made significant progress. In South Africa, education has been noted among the primary SDGs and many argue that the country has improved in net enrolment of learning in primary school. 6 Hence, social exclusion of the majority of South African from the labour market due 1 Berger E "The Right to Education under the South African Constitution" College of Law, Faculty Publications. Paper 26 (2003). Available at http://digitalcommons.unl.edu/lawfacpub/26 (accessed 29-04-2016). 2 Popkewitz T S, Olsson U and Petersson K “The Learning Society, the Unfinished Cosmopolitan, and Governing Education, Public Health and Crime Prevention at the Beginning of the Twenty- First Century” in Jan Masschelein J, Maarten S, Bröckling, U. & Pongratz, L (Eds.,) The learning society from the perspective of Governmentality. Blackwell, Oxford, Educational Philosophy and Theory (2007) 17-35. 3The Millennium Development Goals are Goal 1: Eradicate Extreme Hunger and Poverty, goal 2: Achieve Universal Primary Education, Goal 3: Promote Gender Equality and Empower Women, Goal 4: Reduce Child Mortality, Improve Maternal Health Goal 6: Combat HIV/AIDS, Malaria and other diseases, Goal 7: Ensure Environmental Sustainability, Goal 8: Develop a Global Partnership for Development. 4 UNGA Resolution A/RES/70/1 on the global Sustainable Development Goals (SDG), particularly Goal 7 and 13. 5 The UN Economic Commission for Africa (ECA) was established by the Economic and Social Council (ECOSOC) of the United Nations (UN) in 1958 as one of the UN's five regional commissions. ECA's mandate is to promote the economic and social development of its member States, foster intra-regional integration, and promote international cooperation for Africa's development. 6 Maile S “ Education an d Poverty Reduction Strategies: Issues of Policy Coherence” Human sciences research council (2008) at 12.

to the lack of education and skills attainmen t originated from the country’s history of Apartheid, which create a bipolarised society cannot be waived as a result of the claim that primary education has been improved. 7 In particular, having emerged from a past (Apartheid) characterised by violations rather than respect for fundamental rights, the new South Africa has inherited inequalities of classes and racism. 8 As a result, the country faces significant awkward wedges, including crimes, unemployment, inequality, and social exclusion. 9 Because of the poor educational and skills attainment of the majority of South African population, it is expected that the informal sector is relatively large as many peoples are not able to find employment in the formal sector. 10 This perception has brought significant changes not only in South Africa but also worldwide. In South African for instance, the new society (democracy) Constitution (FC) of the 1996 provides in its section 29 (1)(b) that ‘everyone has the right to further education, which the state, through reasonable measures , must make progressively available and accessible’. Although education is generally recognised as an instrument for changes, schools and universities frequently fail to receive the necessary resources to improve their standards and to satisfy people needs, especially that of free education. Nowhere this paradox is more evident than in contemporary South Africa, where the country has included the right to education in its emphatically modern Constitution, but where schools, particularly for poor blacks, remain woefully inadequate. The explanation for these shortcomings are obvious the lack of adequate resources to address the needs of its citizens. It is therefore important to critically evaluate in the following sections, the arguments that have been made in light of section 29 (1)(b) of the constitution (section 2) and to examine (section 3) on the various facets of this rights in light of the relevant case laws of the Constitutional Court in relation to the right to health (Soobramoney) and housing (Gootboom). 7 Goujon A & Samir KC (2009) “Women’s Level of Education A ttainment in North Africa (1970-2050), Gender Gap versus Gender Dividend: Challenges and Policy Implication” In Lutz W, Goujon A (E ds.,) Capital Humano, Genero y Envejecimiento en el Mediterraneo, PAPERSIEMed . (2009)19-19. 8 Seekings J “Social Stratification and I ne quality in South Africa at the End of Apartheid” Centre for Social Science Research. University of Cape Town, Working Paper n0 31(2003). 9 Adoto M, Carter, May J “ Exploring Poverty Traps and Social Exclusion in South Africa Using Qualitative and Quantitative Data” 42(2) Journal of Developmental Studies ( 2006) 226-247. 10 Petersen MM “ Informal Employment in South Africa: A Critical Assessment of its Definition and Measurement” University of Cape, Mini Thesis (2011) at 43.