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a. Right to Free and Compulsory Primary Education International human rights law makes clear that all children have a right to free, compulsory primary education, free from discrimination.36 South Africa has ratified six key human rights treaties applicable to children, education, and persons with disabilities.37 The government has agreed to respect and fulfill international and regional obligations to provide free, compulsory primary education available to all children,38 ensure different forms of secondary education are available and accessible to every child, and take appropriate measures, such as the progressive introduction of free education39 and offering financial assistance in case of need.40 In January 2015, South Africa ratified the International Covenant on Economic, Social and Cultural Rights (ICESCR), which came into effect in April 2015. Upon ratification, South Africa included a declaration that the government “will give progressive effect to the right to education … within the framework of its National Education Policy and available resources.”41 According to leading South African human rights organizations, such a declaration represents a “worrying discrepancy,” particularly as it contradicts current practice and 36 United Nations Economic and Social Council, “Preliminary report of the Special Rapporteur on the right to education, Ms.
Katarina Tomasevski, submitted in accordance with Commission on Human Rights resolution 1998/33,” E/CN.4/1999/49, 13 January 1999, http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G99/101/34/PDF/G9910134.pdf?OpenElement (accessed August 5, 2015).
37 UN Convention on the Rights of the Child (CRC), adopted November 20, 1989, G.A. Res. 44/25, annex, 44 U.N. GAOR Supp.
(no. 49) at 167, U.N. Doc. A/44/49 (1989, entered into force September 2, 1990, art.6, in 1995; UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), adopted December 18, 1979, G.A. res. 34/180, 34 U.N.
GAOR Supp. (No. 46) at 193, U.N. Doc. A/34/46, entered into force September 3, 1981 in 1995; African Charter on Human and People’s Rights, adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force October 21, 1986, in 1996; African Charter on the Rights and Welfare of the Child, adopted July 11, 1990, OAU Doc. CAB/LEG/24.9/49 (1990), entered into force November 29, 1999, in 2000; UN Convention on the Rights of Persons with Disabilities (CRPD), adopted December 13, 2006 G.A. RES/61/106, entered into force May 3, 2008, in 2007; International Covenant on Economic, Social and Cultural Rights (ICESCR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3, entered into force January 3, 1976 in 2015.
38 CRC, art. 28(1)(a), ICESCR, art. 13(2)(a), African Charter on the Rights and Welfare of the Child (African Charter), art. 11(3)(a).
39 ICESCR, art. 13(2)(b).
40 CRC, art. 28(1)(b); African Charter, art. 11(3)(b).
41United Nations Treaty Database, “South Africa,” undated, https://treaties.un.org/doc/Publication/UNTS/No%20Volume/14531/A-14531-South%20Africa-08000002803ff711.pdf (accessed July 10, 2015).
In particular, the government’s declaration is incompatible with binding decisions by South Africa’s Constitutional Court, which has previously ruled that there is an immediate obligation to fulfill this right, and that education is not subject to the progressive realization provisions associated with some other economic and social rights protected under the Constitution.43 As a party to the ICESCR, South Africa must submit an action plan on how it will guarantee free and compulsory primary education to all children.44 b. Right to Access Inclusive, Quality Education Inclusive education is an evolving educational approach, widely interpreted across countries.45 The United Nations Educational, Scientific and Cultural Organization (UNESCO)
defines inclusive education as:
A process of addressing and responding to the diversity of needs of all learners through inclusive practices in learning, cultures and communities and reducing exclusion within and from education. It involves changes and modifications in content approaches structures and strategies, with a common vision which covers all children of the appropriate age range and a conviction that it is the responsibility of the regular system to educate all children.46 At root, inclusive education focuses on the importance of ensuring that “the whole environment … [is] designed in a way that fosters inclusion and guarantees their [children 42 Joint statement by Section 27 et al., “South Africa Government’s Declaration on Education Clause Mars the Welcome Ratification of the International Covenant on Economic, Social and Cultural Rights,” Johannesburg, January 21,2015.
43 Constitution of the Republic of South Africa, s. 29(1); Governing Body of Juna Masjid Primary School and Another v Essay N.O. 2011 (8) BCLR 761 (CC).
44 ICESCR, art. 14.
45 United Nations Human Rights Council, “Thematic Study on the right of persons with disabilities to education,” Report of the Office of the United Nations High Commissioner for Human Rights, A/HRC/25/29, December 18, 2013.
46 United Nations Educational, Scientific and Cultural Organization (UNESCO), “Guidelines for Inclusion: Ensuring Access for All,” 2005, http://unesdoc.unesco.org/images/0014/001402/140224e.pdf (accessed June 5, 2015).
“COMPLICIT IN EXCLUSION” 18 with disabilities] equality in the entire process of their education.”47 This includes the right to access quality learning, which focuses and builds children’s abilities, and for children to be provided with the level of support and effective individualized measures required to “facilitate their effective education.”48 Moreover, inclusive education takes into account the mutual benefits of bringing together all children. “The most powerful experience is that peers become disability advocates,” Edward Ndopu, an activist, told Human Rights Watch, “They become champions of accessibility and inclusion in the classroom.”49 The Convention on the Rights of Persons with Disabilities (CRPD) promotes “the goal of full inclusion”50 while at the same time considering “the best interests of the child.”51 The Office of the High Commissioner for Human Rights, the United Nations human rights
agency, states that:
The right of persons with disabilities to receive education in mainstream schools is included in article 24 (2) (a), which states that no student can be rejected from general education on the basis of disability. As an antidiscrimination measure, the “no-rejection clause” has immediate effect and is reinforced by reasonable accommodation52 … forbidding the denial of admission into mainstream schools and guaranteeing continuity in education. Impairment based assessment to assign schools should be discontinued and support needs for effective participation in mainstream schools assessed…. The legal framework for education should require every measure possible to avoid exclusion.53 47 UN Committee on the Rights of Persons with Disabilities, General Comment No. 2 (2014), art. 9: Accessibility, http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G14/033/13/PDF/G1403313.pdf?OpenElement (accessed August 5, 2015), para. 39.
48 CRPD, art. 24(2)(d), (e ).
49 Human Rights Watch interview with Edward Ndopu, youth coordinator, Amnesty International, Johannesburg, November 2014.
50 CRPD, art. 24(2)( e).
51 CRPD, art. 7(2).
52 See Section IV, “Discrimination due to Lack of Reasonable Accommodation in Schools” for further details on the application of this concept.
53 Ibid. p. 9.
19 HUMAN RIGHTS WATCH | AUGUST 2015 c. Right to Education on an Equal Basis International law provides that persons with disabilities should access inclusive education on “an equal basis with others in the communities where they live,” and governments must provide reasonable accommodation of the individual’s requirements, as well as “effective individualized support measures in environments that maximize academic and social development.”54 The government must ensure that children are not excluded from the education system on the basis of their disability.55 The Convention against Discrimination in Education, to which the government is bound since 2000, provides strong obligations on the government to eliminate any form of discrimination, whether in law, policy or practice, which could affect the realization of the right to education.56 According to the UN Committee on the Rights of the Child, “Every child has the right to receive an education of good quality which in turn requires a focus on the quality of the learning environment, of teaching and learning processes and materials, and of learning outputs.”57 Under the Convention Against Discrimination in Education, states must “ensure that the standards of education are equivalent in all public educational institutions of the same level, and that the conditions relating to the quality of the education provided are also equivalent.”58 Moreover, the CRPD specifies that persons with disabilities have the right to access education “on an equal basis with others in the communities in which they live.”59 Children should also enjoy “active participation in the community,” according to the Convention on the Rights of the Child (CRC).60 54 CRPD, art. 24(2)(a)-(e).
55 CRPD, art. 24(1).
56 Convention against Discrimination in Education, UN Educational, Scientific and Cultural Organization (1960), adopted December 14, 1960, entered into force May 22, 1962.
57 UN Committee on the Rights of the Child, “General Comment No 1 Article 29(1): The Aims of Education,” (2001) CRC/GC/2001/1, 17 April 2001, http://www.ohchr.org/EN/Issues/Education/Training/Compilation/Pages/a)GeneralCommentNo1TheAimsofEducation(articl e29)(2001).aspx (accessed August 5, 2015), p. 5.
58 UNESCO Convention against Discrimination in Education (1960), art. 4(b).
59 CRPD, art. 24(2)(b).60 CRC, art. 23(1).
“COMPLICIT IN EXCLUSION” 20 While the Schools Act guarantees the right of children to access schools within their province,61 the government’s inclusive education strategy set out to “expand provision and access to disabled learners within neighborhood schools alongside their nondisabled peers.”62 To ensure governments understand the difference between meaningful ‘inclusion’ over simply ‘integrating’ children with disabilities in an education system,63 the UN Committee on the Rights of Persons with Disabilities recommends that “the entire process of inclusive education” is accessible, including buildings, information and communication; “the whole environment of students with disabilities must be designed in a way that fosters inclusion and guarantees their equality in the entire process of their education.”64 d. Duty to Ensure Reasonable Accommodation The CRPD places an onus on governments to ensure that “reasonable accommodation of the individual’s requirements is provided” and that “persons with disabilities receive the support required, within the general education system, to facilitate their effective education.”65 The CRPD defines “reasonable accommodation” as any “means necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with other of all human rights and fundamental freedoms.”66 According to the UN Committee on the Rights of Persons with Disabilities, a government’s duty to provide reasonable accommodation is “enforceable from the moment an individual with an impairment needs it in a given situation … in order to enjoy her or his rights on an equal basis in a particular context.”67 61 South African Schools Act, chapter. 2, s. 3(3).
62 Department of Basic Education, “Education White Paper 6”, p. 30, para. 126.96.36.199.
63 Gauthier de Beco, “The Right to Inclusive Education According to Article 24 of the UN Convention on the Rights of Persons with Disabilities: Background, Requirements and (Remaining) Question,” Netherlands Quarterly of Human Rights, Vol. 32(3), 263-287, (2014), p. 275.
64 UN Committee on the Rights of Persons with Disabilities, “General Comment No. 2: Article 9: Accessibility,” April 2014, para. 39.
65 CRPD, arts. 24(c) and (d) respectively.
66 CRPD, art 2.
67 UN Committee on the Rights of Persons with Disabilities, “General Comment No. 2,” para. 26.
“Education White Paper 6” refers to broad approaches to accommodate learners’ needs and sets out ways the government should accommodate children and young people with disabilities. Schools “are encouraged to make the necessary arrangements, as far as practically possible, to make their facilities accessible to such learners [with special education needs].”69 In 2014, the government finalized the “National Uniform Minimum Norms and Standards for Public School Infrastructure,” applicable to all mainstream schools.70 These outline the requirements for schools to function properly and to progressively provide high quality infrastructure. While some measures need to be put in place urgently, other crucial standards exclusively applicable to learners with disabilities are subject to a progressive approach. For example, while the government outlined the need to comply with “universal design measures” for schools catering to learners with disabilities, provisions must only be complied with by 2030.71 Since ratifying the CRPD in 2007, South Africa has not adopted a clear, binding definition of “reasonable accommodation” in its education guidelines.72 Embedding this key principle in South African law and policy would assist in increasing the understanding by education officials at national, provincial and district level of their obligation to accommodate the needs and requirements of children with disabilities within the education system, and would create legally binding measures to ensure compliance at the school level.
68 United Nations Human Rights Council, “Thematic Study on the right of persons with disabilities to education,” Report of the Office of the United Nations High Commissioner for Human Rights, A/HRC/25/29, December 18, 2013.