Important Victory for the Right to Education in South Africa

Posted by Susan Farbstein

In the not-so-distant past, denial of basic education to non-white citizens was a pillar of South Africa’s apartheid state.  The goal of “Bantu education” was to isolate and subjugate the black population, prevent the spread of “subversive” ideas, and prepare black students to provide labor for a white-run economy and society.  Recognizing that this system had to be eradicated if South Africa was to truly transform itself, the right to education was enshrined in the country’s new constitution during the transition to majority rule.  Basic education for all South Africans would be an immediately realizable right, essential to overcome decades of legalized discrimination and to ensure meaningful participation in a democratic society.

But absent clear standards and specific guidance about what a quality education means, the country has struggled to provide such education to most of its citizens.

A school in the Eastern Cape of South Africa. Photo courtesy of Equal Education

According to the Department of Basic Education, as of 2011, of the 24,793 public schools in South Africa: 14% have no electricity; 10% have no water supply; 46% use pit-latrine toilets; 90% have no computer centers; 93% have no libraries; and 95% have no science laboratories.  We’re learning about these challenges through our partnership with Equal Education Law Centre (EELC), a law clinic set up to address what it describes as the ailing education system in South Africa.  Part of the problem is that while the South African Schools Act of 1996 empowered the Minister of Basic Education to set minimum norms and standards for all schools, such norms and standards were never established.

But last week, our partner in South Africa made measurable progress.  EELC and its sister organization, Equal Education (EE), along with the Legal Resources Centre (LRC), secured a major victory on the path to education reform in South Africa.  In an out-of-court settlement, the Minister of Basic Education agreed to promulgate binding minimum norms and standards for infrastructure of the country’s public schools.

The proposed norms and standards will be published for public comment by January 15, 2013 and finalized by May 15, 2013.  They will address issues such as classroom infrastructure, electricity, water, sanitation, libraries, laboratories, recreational facilities, and school security.  The regulations will require every school in South Africa to meet a basic but acceptable level of school infrastructure that supports learning and teaching.  Provincial departments that fail to meet these minimum standards can then be held accountable for their shortcomings and brought into compliance.

To be sure, this is only a preliminary step.  Those who care about education will need to ensure that the norms and standards established by the government are substantive and meaningful, and will then need to work hard to see that those standards are met.  Our Clinic has been lucky to support EELC over the past semester on education-related litigation and advocacy, and looks forward to carrying the campaign forward with them.

Photo courtesy of Equal Education

NOTE: To learn more about the campaign that led to this victory, read a first-person account by Doron Isacs of Equal Education here. And to see one of the largest youth rallies in recent years, in which an estimated 20,000 people marched for minimum norms and standards in education, check out this video.

Renewed Threat to Freedom of Expression in South Africa

Posted by Susan Farbstein

In the forthcoming issue of the New York Review of Books, Nadine Gordimer writes about two disturbing pieces of legislation under consideration by the South African parliament: the Media Tribunal and the Protection of State Information Bill (or so-called “Secrecy Bill”). Both would significantly curtail freedom of expression and access to information.  Nearly twenty years after the end of apartheid, the acts are eerily reminiscent of the legal architecture that upheld the apartheid system itself—laws banning political parties, newspapers and books, and advocacy of political, economic, and social change.

Protesters show their opposition to the so-called “Secrecy Bill” at a candlelight vigil in Johannesburg, September 2011. Photo: Heather Mason at http://www.2summers.net.

If the Media Tribunal is established, journalists will be required to inform it about topics that they plan to investigate or write about; the Tribunal will then have the power to determine whether these subjects pose a threat to state security.  However, under a new plan recently proposed by the Press Freedom Commission, a compromise seems more likely.  The Commission has recommended a system of “independent co-regulation” between the public and press, without involvement of political parties or state officials, which may mitigate some concerns raised by critics of the Tribunal.

The Secrecy Bill may be the greater threat.  It has received heavy criticism from South African civil society and media, and would impose significant prison sentences on those who expose corruption in government and industry.   It lacks a public interest defense, meaning that journalists or whistle-blowers could be imprisoned for up to 25 years for sharing information deemed classified by the government, even in the face of a compelling public interest such as exposing corruption or malfeasance.  In addition, the Bill will insulate various intelligence agencies from public scrutiny, ensuring that ordinary constitutional checks and balances will not apply to the intelligence services.

The powerful Congress of South African Trade Unions (COSATU), a traditional ANC ally, is strongly opposed to the Bill, as is Archbishop Desmond Tutu, who has said that it “makes the state answerable only to the state.”  The final hearing on the Bill is set for May 17th.  If passed into law, expect to see a Constitutional Court case challenging the Bill in the near future.

In many ways, this legislation contradicts the founding ideals that the ANC promised to a new South Africa.  Should the Secrecy Bill be enacted into law, former Constitutional Court Justice Albie Sachs’ warning may prove disturbingly prescient: “There is no guarantee that somebody who is a freedom fighter, who is willing to sacrifice his life for freedom, will not violate the rights of others when he takes over power.”