Page 50 - University of Pretoria Research Review 2017

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Law and the right to education
Ann Skelton, Centre for Child Law
The right to education builds the capacity of individuals to claim other human rights. Yet, the 2013/14 UNESCO Global Monitoring Report on Education for All (EFA 2014) shows that 57 million children do not attend primary school, which should be free and compulsory under international law.
Professor Ann Skelton, who holds the UNESCO Chair
in Education Law, and is the Director of the Centre
for Child Law in UP’s Faculty of Law, is engaged in a research project that explores what the law can do to remove barriers to education, particularly on the African continent.
Access to free primary education was the focus of a
case brought before the Swaziland (Eswatini) courts.
The Constitution of Swaziland (2005) had promised free primary education for all children within three years of the Constitution coming into operation. That date having passed, a civil society group took the matter to court, demanding immediate rollout. The case initially fared well in the High Court, but in a subsequent application to apply the original order, the court baulked at making an immediately enforceable order, citing lack of resources as an obstacle. That approach was upheld by the Supreme Court.
Research undertaken by Professor Skelton and Professor Serges Djoyou was published in the Journal of African Law in 2017, ‘Broken promises: Constitutional litigation for free primary education in Swaziland’. The article compares the approach of the Swaziland appeal courts to that of South African courts, and finds that the Swaziland courts could have ordered a starting date for the rollout of free primary education, and could have monitored compliance in the manner that judges in South Africa have been doing, in cases such as the recent ‘text books’ case.
In South Africa, while enrolment in schools is good and no child is excluded on the basis of being unable to pay, other barriers to learning are evident. An urgent problem in 2017 was protest action and its devastating effects on the rights of learners to attend
schools. Professor Skelton was a panellist in a South African Human Rights Commission hearing on protest and schools. This collaboration led to an article co- authored by Professor Skelton and Martin Nsibirwa entitled ‘#Schools on Fire: Criminal justice responses to protests that impede the right to education’, published in the SA Crime Quarterly. The article explores the competing constitutionally protected rights of protest and education. It concludes that although the right to protest is central in a democracy, it must be exercised peacefully with minimal disruptions to the right to education. However, the article is sceptical about
the efficacy of criminal sanctions, and encourages a preventive approach.