The South African Human Rights Commission (SAHRC) was a Chapter 9 Institution, and Chapter 9 Institutions reported to the Deputy Speaker. However, the Commission also reported to the Department of Justice and Constitutional Development. It was important that the Commission report as well to the Department of Basic Education (DBE) on the work it was doing with regard to children. A whole section in the Bill of Rights in the Constitution was devoted to the child and access to education. When the Charter on Children’s Basic Education Rights was launched, the Chairperson had spoken of the Portfolio Committee’s parliamentary oversight function. The SAHRC would strengthen that oversight by reporting to the Committee on what it had learnt.
The right to basic education was enshrined in section 29(1)(a) of the Constitution; it was an unqualified socio-economic right, not subject to the availability of resources or progressive realisation. The monitoring of basic education as a right had been hindered by the lack of a common and consolidated national statement of the scope and content of the right. There had been gaps in the understanding of what it meant to actually realise the right to basic education.
After the purpose of the Charter, and the ways in which it could be used by stakeholders, had been explained, the Commission told the Committee that since its launch, the Commission had used the Charter as its primary frame of reference in conducting the following activities: commenting on the Draft Minimum Norms and Standards for Public School Infrastructure; convening a hearing related to the delivery of primary learning materials to schools, involving all nine provinces in the country; participating in a hearing on water and sanitation, the focus being on schools; and providing certain of its comments on the draft UN Convention on the Rights of the Child (UNCRC) Country Report.
The Commission was asked what its role was when the rights of children were violated through a lack of facilities, or learning materials, or teachers going on strike. The Commission responded that it was the responsibility of the duty bearer – in this instance, the government – to ensure that children enjoyed their right to a basic education. The SAHRC’s role was to monitor and report on the situation, and to find out what steps the government was taking to rectify matters.
The Chairperson welcomed Commissioner Lindiwe Mokate of the South African Human Rights Commission (SAHRC), Ms Melanie Dugmore (Provincial Manager, Western Cape), and officials from the Department.
The SAHRC was a Chapter 9 Institution, and Chapter 9 Institutions reported to the Deputy Speaker, but the Commission also reported to the Department of Justice and Constitutional Development. It was important that the Commission report to the Department of Basic Education (DBE) on the work it was doing with regard to children. A whole section in the Bill of Rights in the Constitution was devoted to the child and access to education. When the Charter on Children’s Basic Education Rights was launched, the Chairperson had spoken of the Portfolio Committee’s parliamentary oversight function. The SAHRC would strengthen that oversight by reporting to the Committee on what it had learnt. One of the NGOs had written to the Chairperson, and was still doing an investigation for a report which the DBE had to give to the Commission. The Committee would go through it once it received a reply from the Commission; the NGO would need a reply.
Commissioner Mokate indicated that the SAHRC was an institution that reported to Parliament, and although it currently reported to the Portfolio Committee on Justice and Constitutional Development, its work was such that it cut across a number of areas, and it should therefore also report to the CBE. All of the people within the Human Rights Commission should report to the corresponding committee.
Briefing by South African Human Rights Commission
Commissioner Mokate gave an overview of the background, purpose and structure of the SAHRC Charter on Children’s Education rights, and indicated how the Charter was intended to be used by the Commission and other stakeholders.
The Charter was the third of its kind in the world, and according to the UN, the most detailed and comprehensive of the three.
Over time the Department of Basic Education, through various administrations, had identified gaps in achieving quality education and policies had been developed. There were also statements of commitment of what needed to be done.
The SAHRC was an independent national human rights institution mandated by the Constitution to promote respect for human rights, and a culture of human rights; to promote the protection, development and attainment of human rights and to monitor the observance of human rights in the Republic. The Charter was a tool for the SAHRC to monitor human rights.
The right to basic education was enshrined in section 29(1)(a) of the Constitution; it was an unqualified socio-economic right not subject to availability of resources or progressive realisation. The monitoring of basic education as a right had been hindered by the lack of a common and consolidated national statement of the scope and content of the right. There had been gaps in the understanding of what it meant to actually realise the right to basic education.
The purpose of the Charter was:
•To contribute towards the realisation of the right to basic education;
• To provide a common, legally-grounded planning, monitoring and advocacy framework for use by the SAHRC and all relevant stakeholders;
•For the SAHRC to be able to report it needed to know what was involved. Many people needed to know what the content of the right was, and the obligation on the part of the state to fulfil that right. Members in the non-governmental sector were also monitoring the right; donors who were contributing toward the realisation of the right; and school principals who had to know what was expected of them. It was important that the Commission gave some direction in terms of its understanding.
•To provide a statement of the various legal obligations on the state, and the services and support that had to be provided to ensure that all children, especially South Africa’s historically educationally marginalised children, enjoyed the right to basic education. It was important to know who should give that, and what kind of support that must be.
Ms Mokate explained the process of developing the Charter. The document began with a scoping of the legal obligations and undertakings made by the state in terms of international legal and developmental instruments (such as the commitment signed and ratified with the United Nations Convention on the Rights of the Child (UNCRC), the Convention of Rights of People with Disabilities (CRPD), in developmental policies in the Millenium Development Goals (MDGs); from an African perspective, the African Charter on the Rights and Welfare of the Child (ACRWC), which fell under the African Union (AU), the Southern African Development Community (SADC) Regional Indicative Strategic Plan and national constitutional obligations.
The Charter was limited to the right to basic education through schools and aligned to the DBE’s mandate to secure basic education through Grades R to 12.
The organising framework selected was Tomasevski’s 4A framework and the Right to Education Project. The framework prescribed that education must be available, accessible, acceptable and adaptable. The Charter drew significantly on the extended 4A and Right to Education indicators, but was specifically shaped to reflect national education priorities and realities.
The layout of the Charter was such that the body was in tabulated form, and the same four column headings occurred throughout the document, which was extremely valuable as it gave the reader a consolidated view of the right and its core content. The Charter was launched on 31 January 2013,
and could be used by stakeholders for the following purposes:
• A means of educating children and care-givers, including parents, about children’s rights;
•Planning and educational tools for schools, governing bodies, principals and teachers
•A planning and monitoring tool for use by the Department of Basic Education and other relevant departments
•A monitoring tool for Parliament. When the Commission reported to Parliament, there was an expectation that Parliament would look at why the Commission said certain areas were critical, why it said something needed to be done, and where the country should be committed to things that were not happening. The Charter gave an indication of who should be doing what.
•A planning, educational, monitoring and advocacy tool for civil society, including NGOs, community-based organisations (CBOs), research institutions and trade unions, and where duty bearers were the state, the state had to ensure that there were no barriers to fulfilment. It was also a planning and monitoring tool for development partners and donors.
Since its launch, the Commission had used the Charter as its primary frame of reference in conducting the following activities: commenting on the Draft Minimum Norms and Standards for Public School Infrastructure; convening a hearing related to the delivery of primary learning materials to schools, involving all nine provinces in the country; participating in a hearing on water and sanitation, the focus being on schools; and providing certain of its comments on the draft UN Convention on the Rights of the Child (UNCRC) Country Report. The report had not yet been sent to the UN, but the Commission had commented extensively in that report and the Charter had been very useful in giving direction on how that report should be.
The Commission had also participated in a solidarity visit to schools in the Eastern Cape, organised by the NGO, Equal Education and the Commission’s Provincial Offices had recently convened a dialogue on the right to education. The intention was to focus on the nine provinces in terms of the right to basic education, because it was a right that was time-bound -- if action was not taken now, time passed and the child was no longer a child. It had also evaluated the DBE’s response to questionnaires sent to them by the Commission in terms of Section 184(3) of the Constitution.
The Chairperson asked the Commissioner to expand on how the Commission made use of the Charter, as it was important for the Committee as Parliamentarians to receive those reports which assisted the Committee in the oversight of its own department, and other government departments.
Commissioner Mokate said draft Minimum Norms and Standards had been published, and the Commission covered the Norms and Standards for School Infrastructure in the Charter. The Commission had been able to use the Charter to look at the gaps where the published Minimum Norms and Standards had fallen short. With the Charter, the country had committed itself to say how it would like to see the infrastructure for schools. The Commission did not take from what had published, but rather from what this country had committed itself to.
When there had been a big issue around Limpopo regarding the supply of primary learning materials to schools, the Commission had been concerned and wanted to know whether that had affected only Limpopo. It had sensed that the challenge was not limited to Limpopo and that it may be more widespread. The Commission had decided to look into what was happening in the rest of the country. There were all those issues about not getting information and sometimes the Commission’s own colleagues at the provincial level would not know what to do when they did not receive the information they were supposed to get. Different provinces responded differently. There were provinces that were very reluctant to give information, so the Commission had changed its approach and had had a hearing where everybody was obligated to come and give information on what was happening in their provinces. All nine provinces were invited in order for the Commission to get a better sense of what was happening in their provinces with regard to Learner and Teaching Materials. The response had not been the same in all the provinces but, except for one, all eight provinces had reported on the situation in their provinces.
Water and sanitation was a very critical issue, as was the sanitation situation in the different parts of the country, especially the rural areas. The Commissioner was part of the delegation that visited some of the places and witnessed the unventilated pit latrines in different parts of the country. The Commission wanted to get information from people who were invovlved themselves, to complement the information it already had.
Regarding the UN Convention on the Rights of the Child Country Report, periodically countries that had signed and ratified the Convention had to report to their Treaty Monitoring body. South Africa had missed out three reports. The Commission had paid specific attention to the report, which included the right to basic education, and had commented extensively on the draft report. A few years ago, the UN had decided that they would like national institutions such as the SAHRC to put together a report if they found that the report the country was giving left out information that was critical in identifying what the actual situation in the country was. The Commission would see if the state had taken note of the comments it had made and if something very important had been left out, it would submit its own report on that issue. That might also be necessitated by the fact that South Africa had not reported for such a long time.
The dialogue on the right to education was happening at provincial level and conducted by the SAHRC’s provincial offices. It was important to have the discussions located in the provinces because more people participated and more information was received.
In terms of evaluation of the DBE’s response to questionnaires in terms of section 184(3), the Commission was supposed to require organs of state, including the DBE to provide the Commission with information annually on progress made in the realisation of economic and social rights. The Commission would use the Charter to evaluate the information received from the national department. Previously the Commission did not have a tool with indicators against which information received could be evaluated.
The Chairperson thanked the Commissioner for the clarification.
Mr A Mpontshane (IFP) supported the sentiments about holding the Department accountable for what it had or had not done. Was it possible to get documents containing the Commission’s proposal and responses to the DBE’s Minimum Norms and Standards for Public Schools? The Chairperson agreed to request the Commission to submit the document.
Commissioner Mokate said the documents were available, and her colleague from the Western Cape would note the documents in which Mr Mpontshane was interested.
Mr Mpontshane asked how the Commission could reconcile that the right to basic education was an unqualified socio-economic right, but that the right must be realised progressively.
The Commissioner clarified that most of the rights in that grouping were subject to progressive realisation, but the Constitution made the right to basic education a special right in a way that was subject to progressive realisation, and subject to availability of resources. Although it belonged to that group, it was specifically mentioned as an unqualified right in the Constitution. Most of the rights that dealt with children were like that. Under Section 28 on the Rights of the Child, it could be seen that the Constitution did not refer in the same manner as it did with the adult population. The reason for this was that there was an urgency when people dealt with children.
Mr Mpontshane asked for clarification on the 4A’s requirement that education must be acceptable. Critics said South Africa’s education system was not up to the mark -- what would the Commission say about that?
The Commissioner clarified that availability prescribed what had to be in place in order to be able to say that the right was available. First there had to be recognition of the right to basic education. In South Africa, the right existed and was supported by all the elements that had been mentioned.
Early Childhood Development fell under the availability of the right to basic education. There was much evidence of the role played by early childhood education in the life of the child and in the performance of the child in the years beyond that stage. Children exposed to that tended to perform much better than those that did not have early childhood education. Early childhood education did not have to be in an institution, but an arrangement had to be there. There had be the provision of functional institutions, which fell under available education. Institutions were not available if they were not functional. If there were not sufficient, available and qualified teachers then education was not available. The Commissioner had visited a school in the Eastern Cape that was supposed to have fifteen teachers, only two teachers had been available full time. In a situation like, that it could not be said that the right to basic education was available, nor if there were no learning and teaching materials. It could only be available once all of those things were in place.
Education was accessible if a disabled child could get education. If a disabled child or a child in the rural areas could not access education then it was not accessible. Those barriers were physical. A situation where a school could not be accessed because it was not friendly for disabled children, had to be addressed if children were to enjoy their right to basic education.
Education was adaptable if it included and took everybody into account, such as the circumstances of the person and the society it was educating, and addressed changes in developments in that society at each stage. It needed to adapt to what was happening in the environment.
If education was acceptable, it should not be discriminatory. Everybody should be able to see him or herself in the education provided.
All these elements had been documented and would be left with the Committee.
Ms F Mushwana (ANC) said she did not see where the Charter accommodated the parent in terms of the right to education, which was so important. She also asked about the role of NGOs and civil society.
The Commissioner responded that the Charter acknowledged the role of early childhood development (ECD), where there was an important role for the parent. The Charter was aligned with DBE’s Grade R to 12. It was designed to be child focused, and talked only from the position of the child. If the teachers were late, for instance, the SAHRC did not look at it from the aspect of the teachers but from the eyes of the child and what impact it had on the child.
Ms Mushwana asked for clarification about the indicators provided by the Charter, against which Members of Parliament could monitor progress. Who monitored the monitors, who monitored the SAHRC, and who oversaw bodies such as the Public Protector?
The Chairperson clarified that Parliament oversaw the SAHRC through the Portfolio Committee on Justice and Constitutional Development.
Commissioner Mokate added that the Commission was accountable to Parliament. It had to account for its budget, performance, reports, and strategic framework. It could also be called to speak on specific areas, such as today’s presentation.
Ms A Lovemore (DA) said her party shared the excitement of many South Africans to have such a Charter. The DA had tried to go to the Constitutional Court to get them to declare in some way what was actually meant by the right to basic education. However, she found that the Charter did not fully answer the question. She had visited successful independent and public schools to try to understand what made them excellent and why the young adults emerging from those schools were able to take on the challenges of life. She believed the basis of basic education was to produce a young adult who was courageous and capable enough to take on the challenges of life, be they tertiary education, entrepreneurship, or anything else. She did not find anything in the Charter in terms of research done to answer the question as to what quality education was. What was accepted internationally as quality education?
The Commissioner said she was not sure what question it did not answer; and asked for further clarification.
Ms Lovemore said the question was, what was meant by the constitutional right to quality education?
The Commissioner responded that the question was very complex -- no one thing that made quality education, it was a multitude of things. There must be infrastructure, there must be water, sanitation, a healthy and acceptable environment, and there must be teachers. Those teachers must be qualified to teach what they were supposed to be teaching. The children must also have the learning and teaching materials.
Ms Lovemore agreed that it was multi-faceted. What was of concern was the fact that the Commission had taken the DBE’s standards and accepted them and just put them in the report. Coupled with this was the fact that she did not see any additional research into what really should underpin basic education or any reference to international norms.
The Commissioner explained that the Charter drew from all sources, starting from the international and the regional, and went on to the sub-regional and to the domestic. It covered all the areas out there concerning quality education. The beginning of the Charter covered almost all the relevant information on basic education. The Commission did not just take what the Department said. It aligned itself with the Department as far as the Department was looking at the Grades R to 12 and what the Department was committed to. If this was not happening, it did not detract from what the country was committed to.
Ms Lovemore asked for clarification of the statement: ‘we take from what this country has committed itself to’. The 4As was a fabulous structure that really worked. So the Commission had looked at what the DBE had committed itself to, such as their infrastructure policy, which was in fact not a commitment -- it was a policy used as a guideline. It was put in there as a right to infrastructure being achieved, but was it? She was concerned that it was just accepting obligations made by the state.
She also referred to the role of parents. One of the things she had picked up in the successful independent and public schools was that the focus was on the development of the whole child – values and principles and understanding themselves and developing their skills and talents. That prepared a child for adulthood, but did not appear in the Charter. She would like comments on that.
Ms Lovemore referred to the structure of the report. Yes, there were state obligations, and then a column headed indicators/rights. This meant that every child privileged to enjoy basic education had a right to everything in that column, had a right to have 9% of the GDP spent on basic education, and a right to a netball field, for instance. She found that confusing.
She was pleased with the right to review the DBE and what they were doing, but would there be a review of the Charter on a regular basis?
The Chairperson asked for clarification of quality education. There had been extensive hearings in Parliament on access to quality education, led by the previous chairperson. Up to 6 000 people had attended. Ms Lovemore had spoken about such things as education totality, the psychological side of education, and the principles of education within the Charter.
Ms A Mashishi (ANC) asked for more information on international education. The United Kingdom and Ireland had been mentioned. She asked the Commissioner to expand on that.
The Commissioner responded that the Commission’s only interest was that those countries had decided they needed to develop a similar charter in order to be effective in monitoring in their own countries.
Ms Mashishi referred to how the Charter could be used by NGOs, caregivers and governing bodies. How often did the Commission meet with them?
The Commissioner responded that they all attended workshops and the hearings, but over and above that, the SAHRC also had multi-level stakeholder committees in each area in terms of the Human Rights Act. The Act prescribed that the Commission should have people outside the Commission who advised on the work done by the Commission, based on their expertise because they were directly involved in those areas. They were called Section 5 Committees and met during the course of the year. They were people from different walks of life, but had an interest in education.
Ms Mashishi asked for an update since the Charter was launched in January.
Mr N Kganyago (UDM) was interested to know the role of the SAHRC in terms of any deliberate violation of rights. If teachers went on strike at a time when they should be available, what was the role of the Commission in terms of the violation of those rights?
The Commissioner agreed that when teachers went on strike and there were no teachers in schools, the children were deprived and were not enjoying the right to basic education. The Human Rights Commission expected that the duty bearer --the government, not the HRC -- would have to ensure that children enjoyed the right to basic education. The SAHRC was there to monitor that the children did enjoy their right to basic education, to report on it and to find out what steps government was taking when things were not happening. The duty bearer was the state. Children did not enjoy the right to basic education when teachers went on strike for six months. Also when there was no transport for the children to go to school -- maybe the transport workers were on strike -- the duty bearer had to ensure that other means were found for the children to get to school to access their right to basic education.
Mr W Madisha (COPE) said the implementation of the points raised on how the Charter could be used was of importance. He noted the Commission’s proposal to ensure that a comprehensive movement was implemented to ensure the capacity of qualified teachers to interact. He did not see any reference as to what the Department was going to do. There were challenges involved in the implementation, and he asked whether the Commission had been able to interact with the Department and provinces on the matter.
The Commissioner responded that as the SAHRC monitored the Charter, it was able to say that this and that was not happening and was able to call on government to ask what it was doing about it. One would hope that the government would have answers as to how it was dealing with the issues, because the Constitution said the Commission should monitor and report to Parliament on these rights. In terms of the provinces that the Commission was meeting with, the Commission was meeting with provinces on the issue of Learning and Teaching Materials, because it started with the children having learning and teaching materials. The Commission had listened to eight of the nine provinces, which had explained and detailed the situation in their own provinces, and put together an interim report. The reason the report was interim was because the day before she had read the MEC for the Western Cape had said he was pleased that 100% of learning materials had been delivered. The Commission had put together the interim report and someone had said they operated in that area, and the information was not true. This had to be investigated before the final report was produced next month.
Mr C Moni (ANC) noted that the discussion focussed on the rights of the child. Given the context of where we had come from as a country, how could issues such as adult education be dealt with? He asked what the difference between the rights of the child, and human rights, was?
The Commissioner said the SAHRC was not focusing on adult education; it was guided by the critical need, which was at the level of the child.
Mr Moni asked, given all the challenges encountered by South African society, what powers the SAHRC had to change situations -- such as where children were in the deep rural areas, where there were no schools?
The Commissioner responded that in the Eastern Cape, where there were no schools, the community used rondavels from members of the community as classrooms. The SAHRC had put in a report and had asked the Minister to report back on what plans were in place to correct the situation.
The Chairperson asked Members to do a lot of reading in terms of questions asked and answers given.
Mr M Mweli (Acting DDG: DBE) expressed appreciation that the Committee saw fit to meet with the HRC to assist in monitoring and strengthening the oversight work of the Committee.
The Department worked well with the Commission. In an instance where one province could not attend the hearing the DG had written to the MEC and the HOD of that province to indicate that it was observed that eight of nine provinces attended, and reasons had to be given and a full explanation forwarded to the Commission.
At times, portfolio committees would ask what the international perspective was. It was very important that the country as a global player compared and benchmarked itself to what was happening in the rest of the world. UNESCO’s definition of quality education was very broad and had taken the human rights perspective to define quality education. The Department used that definition -- it was about care and about support.
South Africa was signatory to a number of international protocols and instruments, and sat in various forums. Mr Mweli sat on a task team put together by UNESCO to develop a curriculum for the whole world. UNESCO had taken the curriculum of South Africa as a basis. The country had its challenges but its curriculum had been used as a base for UNESCO to develop a curriculum for the whole world.
Over and above Grade R to Grade 12, the Committee was aware that in order to carry out the obligation of zero to four year olds, the National Development Plan was very clear. It said education began at birth -- in other words, from zero to four year olds. The Department had developed a curriculum and was training practitioners involved in zero to four year olds.
The Department engaged with the Committee on an ongoing basis. As public representatives, the Committee had an immense influence in shaping the direction of the country and in making the contributions that this country could take to the rest of the world.
The Chairperson concluded that the meeting with the Commissioner had been a very important one. She appreciated the report had been received early in the year, but the Commission could not be called sooner because of obligation to the deal with budgets. Research had been done on the report, which was very complex, because the Committee would have to engage with the Department on care legislation. The Chairperson commended the Minister for saying this was the year of inclusive education.
When it came to Parliament, the Charter on the Children’s Rights to Basic Education had implications for the Committee and therefore Mr Mweli was correct regarding the Committee’s important role of oversight regarding the basic rights of the child. The scope and content of the basic right to education was set out in Section 29(1) of the Constitution. The Charter set out the obligations of government – basic education (which the Committee was doing), and targets against which government policy and performance should be measured. That would help Parliament to make the Department accountable.
When the Commission sent the report which Mr Mpontshane had requested, that would be useful in the Committee’s oversight role. The Committee would be interested to see the Commission’s report in terms of norms and standards. Water and sanitation was supposed to be an integrated approach of other departments with Basic Education. Human Settlements had said they were supposed to provide sanitation for basic education.
The Committee appreciated the HRC, even if it did not oversee it. The Committee had to have reports such as the Learner/Teacher Support Material (LTSM) report. There was an LTSM report in the newspaper that did not speak very well of our provinces, but when it came to the Eastern Cape she was so encouraged because the press had reported that for the first time in the history of the Eastern Cape, LTSM had been delivered before the schools closed. That showed the pressure the HRC put on the Department and the Minister on all the provinces to do certain things.
The Chairperson thanked the Commissioner. The Committee could now reply to the NGO concerned.
Adoption of minutes
Minutes of Committee Meeting held on 12 March 2013 were adopted
Minutes of Committee Meeting held 26-27 March 2013 were adopted subject to minor technical amendments
Minutes of Committee meetings held on 28 March 2013; 16 April 2013; 17 April 2013; and 23 April 2013 were adopted.
Minutes of Committee meeting held on 30 April 2013 were adopted subject to minor technical amendments.
The meeting was adjourned.
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