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«Human Rights Watch defends the rights of people worldwide. We scrupulously investigate abuses, expose the facts widely, and pressure those with power ...»

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• Mobilize inclusive education funding into mainstream and full-service schools to meet the milestones laid out in “Education White Paper 6,” and invest existing resources to “COMPLICIT IN EXCLUSION” 92 more effectively and efficiently promote inclusion and enhance quality in mainstream schools.

• In the short-term, ensure existing special schools improve the quality of learning environments for children with disabilities choosing to remain in such schools, and ensure children attending special schools are provided with adequate teaching and Individual Education Support Plans to prepare them for, and facilitate, their transition into mainstream schools;

• Make reporting on Individual Education Support Plans mandatory in all public ordinary schools and ensure teachers receive adequate training on how to design, implement and monitor such plans;

• Urgently invest funding in multi-disciplinary District Support Teams to provide adequate assessment and full access to information to parents on their children’s right to education and short and long-term education options.

Increase Global Accountability for the Right to Education for Children with Disabilities To the UN Secretary General and Director General of United Nations Educational, Scientific and Cultural Organization (UNESCO)

• Request a response from South Africa, a UN Global Education First Initiative Champion State, on the status of its commitment to achieve universal primary education and progressive realization of secondary education for all children, with special attention to children with disabilities in South Africa;

• Beyond 2015, require that all UN Global Education First Initiative “Member State Champions” provide accountability on the status of the right to education for all children in their territories, including children with disabilities, in order to build good examples of accountability on the right to education.

To the UN Special Rapporteur on Education and the UN Special Rapporteur on the Rights of Persons with Disabilities

• Request an invitation to carry out a mission to South Africa to evaluate the government of South Africa’s implementation of its international human rights obligations on the right to education and the rights of persons with disabilities.

93 HUMAN RIGHTS WATCH | AUGUST 2015 Acknowledgments

This report was researched and written by Elin Martínez, a researcher in the children’s rights division at Human Rights Watch. Research for this report was also conducted by Dewa Mavhinga, Southern Africa senior researcher, and Zama Coursen-Neff, children’s rights executive director. Enrollment and budget data used in this report was analyzed by Brian Root, quantitative analyst. Ainhoa Barrenechea provided research assistance.

This report was edited by Bede Sheppard, children’s rights deputy director. Aisling Reidy, senior legal and policy advisor, Danielle Haas, senior editor, and Babatunde Olugbaji, deputy program director, provided legal and program reviews. Shantha Rau Barriga, disability rights director, and Agnes Odhiambo, women’s rights senior researcher, provided expert reviews. Production and editorial assistance was provided by Helen Griffiths, children’s rights associate; Grace Choi, publications director, and Sophia Dalal, publications intern; Kathy Mills, publications specialist; and Fitzroy Hepkins, administrative manager.

Human Rights Watch is grateful to all the children, young adults, parents, caregivers, teachers, principals, education officials, disability advocates, and practitioners who shared their experiences and expert input for this report. We are particularly grateful to Jean Elphick of Afrika Tikkun and the mothers of Sidinga Uthando self-help group, for sharing their experiences of fighting for their children’s right to education; as well as to Margaret Masinga and Kululiwe, of Siphilisa Isizwe DPO.

We would like to thank the many organizations and activists who assisted our research. In particular, we would like to thank: Tim Fish Hodgson, Nikki Stein, Zakaria Suleiman and Faranaaz Veriava of Section 27; Robyn Beere and Caroline Taylor of Inclusive Education South Africa; Sandra Ambrose of Disabled Children’s Action Group; Nafisa Baboo of Light for the World International; Vanessa dos Santos, Ancella Ramjas and Difference Motseo of Downs Syndrome International/South Africa; Sandra Klooper and Mary Moeketsi of Autism SA; Shona Mcdonald of Shonaquip; Charlotte McClain-Nhlapo of the World Bank;

Professor Leslie Swartz of the University of Stellenbosch; Professor Ann Skelton of the University of Pretoria; and Samantha Warehouse, Keathelia Sapto and all the members of the Campaign to Promote the Right to Education of Children with Disabilities.

–  –  –

February 19, 2015 Mr. S G Padayachee Acting Director General Department of Basic Education Private Bag X5885 Pretoria 0001, South Africa Padayachee.s@dbe.gov.za dgoffice@dbe.gov.za Dyer.c@dbe.gov.za Re: Human Rights Watch research on barriers to education faced by children with disabilities Dear Mr. Padayachee, Human Rights Watch is an independent, international human rights organization that conducts research into the human rights situations in more than 90 countries globally.

Human Rights Watch conducted research on the right to education of children with disabilities in South Africa in October and November 2014.

In November 12, 2014, Human Rights Watch met with senior members of your Department’s Inclusive Education Unit, Dr. Moses Simelane and Ms. Marie Schoeman. Human Rights Watch acknowledges the positive outcomes of this meeting and thanks the Inclusive Education Unit for sharing relevant information on the Department’s activities and progress made to implement “Education White Paper 6” and support the roll-out of inclusive education across South Africa’s education system.

While we note that the Inclusive Education Unit has been largely made responsible for the implementation of “Education White Paper 6”, we understand this to be one of the many governmental units which hold responsibility for the right to education of children with disabilities across the country.

95 HUMAN RIGHTS WATCH | AUGUST 2015 We therefore write to you to further clarify a number of system-wide issues for which an official government response would be appreciated. We do so in an effort to ensure Human Rights Watch takes into consideration the perspectives of governmental Departments in its final report.

We would be pleased to include your Department’s response to our questions, as well as any additional information you may wish to share, in the report. In order to include your response, we request you to provide an answer by March 22, 2015.


Pertaining to commitments in law and policy:

• In compliance with Chapter 2 (3)(2) of South Africa’s Schools Act, has the Minister of Basic Education taken steps in 2014 or 2015 to “determine the ages of compulsory attendance for learners with special education needs”?

• In line with “Education White Paper 6”, has the Department of Basic Education customized the “National Norms and Standards for School Funding” to adjust the funding policy for learners “with special education needs”?391

Pertaining to overall monitoring and evaluation:

• Is the Department of Basic Education able to share an up-to-date statistic that reflects the numbers of learners with disabilities who were in school in the 2013 and 2014 academic years, as well as new enrolments in 2015?

• How does the government account for a discrepancy between the 223,123 learners with disabilities reported to be in school in 2010392 and the 80,702 learners with disabilities reported to Parliament, based on the 2013 Annual Schools Survey393?

• How does the government account for a sudden drop in the number of children with disabilities who were out of school in 2011 – amounting to 480,036 according to the government’s first report to the UN Committee on the Rights of Persons with Disabilities394—to 30,000 children in 2014 as reported by the Department of Basic Education’s spokesperson?395 391 Education White Paper 6, par., pg. 28; National Norms and Standards for School Funding, par. 4 392 Baseline Country Report to the United Nations on the Implementation of the Convention on the Rights of Persons with Disabilities in South Africa (2008-2012), par. 206 393Parliamentary Question 1270 by Ms H S Boshoff (DA), Date of Publication of Internal Question Paper: 02/09/2014, Reply received October 2014 and accompanying attachment ‘Number of learners with disabilities admitted to ordinary schools in 2013’ 394 Baseline Country Report to the United Nations on the Implementation of the Convention on the Rights of Persons with disabilities in South Africa (2008-2012), par. 205 395 http://www.timeslive.co.za/thetimes/2014/09/29/disabled-kids-let-down-by-school-system

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• Is the Department of Basic Education able to share official up-to-date statistics on waiting lists for special schools?

Pertaining to learners with disabilities:

• Has the “Screening, Identification, Assessment, and Support National Strategy” been launched and implemented in accordance with the 2014 timeframe stipulated by the Department of Basic Education?

• How does the Department of Basic Education track school placements for out-of-school learners with disabilities, including those accessing education for the first time, as well as those who have not entered the school at the age of compulsory education applicable to learners in ordinary schools?

• What incentives are given to mainstream and full-service schools to ensure they admit learners with disabilities?

• What type of child protection mechanisms and child safeguarding measures are in place in boarding schools and school hostels to prevent learner abuse and neglect?

I thank you in advance for your response.

Sincerely yours, Elin Martinez Researcher, Children’s Rights Division Human Rights Watch CC. Dr. Moses Simelane, Director, Inclusive Education Ms. Marie Schoeman, Chief Education Specialist: Inclusive Education

–  –  –

Ms. Simmi Pillay Acting Chief Director, Governance and Compliance Department of Social Development Private Bag X901 Pretoria 001 Email: DisabilityRights@dsd.gov.za Fax: +27 86 263 7659 Re: Public Comments on the Draft First Periodic Country Report to the United Nations on the Implementation of the Convention on the Rights of Persons with Disabilities Dear Ms. Pillay, Human Rights Watch is an independent, international human rights organization that conducts research into the human rights situations in more than 90 countries globally, including South Africa.

We appreciate the opportunity extended by the government of South Africa for institutions and organizations to submit public comments prior to the finalization of its first report to the Committee on the Rights of Persons with Disabilities.

Human Rights Watch recently conducted research on the right to education of children with disabilities in South Africa, including interviewing 135 children with disabilities, parents, school officials and numerous experts, service providers and advocates on the right to education of children with disabilities. It is on the basis of the findings of our research that we submit this input for consideration in the revisions of Section E, “Article 24; Education,” of the current draft report.

We thank you for taking into consideration Human Rights Watch’s comments.

Please do not hesitate to contact us for any further information.

Sincerely yours, Daniel Bekele Executive Director Africa Division

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Legislative Framework [Par. 84 – 87] As outlined in paragraph 83 of the draft report, “new and vigorous strategies are required to accelerate and strengthen the implementation of policy.” Human Rights Watch notes that “Education White Paper 6: Special Needs Education, Building an inclusive education and training system” has been in existence since 2001. The slow pace of implementation of the policy and the limited progress made on a number of milestones outlined in this policy, has resulted in many children with disabilities not having equal access to basic education in line with South Africa’s Constitutional provisions on the right to basic education.396 Due to various delays and shortcomings in implementation reported by the Department of Basic Education,397 the timeframe of implementation of the “Education White Paper 6” has been inconsistent with South Africa’s international human rights obligation to ensure the realization of the right to primary education of all children.398 Moreover, Human Rights Watch notes that the interpretation of this policy at provincial level has resulted in many children with disabilities, requiring different levels of dedicated support and needs, being placed in special schools. The continuous emphasis on a special schools model jeopardizes the goal of “Education White Paper 6” of achieving meaningful inclusion of children in inclusive education settings.

Human Rights Watch welcomes the adoption of the Department of Basic Education’s Norms and Standards on School Infrastructure, published in 2014, which provides details of the government’s plans to guarantee ‘universal design’ standards to “address the diversity of learners with functional limitations.”399 Paragraph 87 of the draft report omits the deadline for compliance with such standards, which is currently set to be met by 2030. While such an extended timeframe allows the government to progressively adapt all ordinary public schools, it could prevent the effective and equal access to inclusive schools for thousands 396 Constitution of the Republic of South Africa, No. 108 of 1996, s. 29 (1) (a) and 2 (a).

397 Department of Basic Education, “Progress in the Implementation of Inclusive Education,” Portfolio Committee on Basic Education, presentation by Mr H M Mweli, Acting DDG: Curriculum Policy, Monitoring and Support, 9 September 2014.

398 See also United Nations Committee on Economic, Social and Cultural Rights, “General Comment No. 13, The Right to Education (article 13 of the Covenant), E/C.12/1999/10, 8 December 1999, pars. 43- 45.

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