High Court of Swaziland: Primary education - for free or for fee?
Presented by Dr Benyam Mezmur, University of Western Cape.
In 2009, the Swaziland National Ex-Miners Workers Association and Cebisa Madoda Nxumalo brought a case to the country's High Court against the Government of Swaziland for failing to provide free primary school education to all children.
Swaziland adopted a new Constitution in July 2005. Article 29.6 of the Constitution provides that every Swazi child shall have the right to free primary school education.
However, when reporting to UN treaty bodies, the government said that 29.6 per cent of costs are covered by parents: the government only bears responsibility for teachers' salaries and families incur all other costs, including the upkeep and repair of schools, housing for teachers and textbooks.
Even though a substantial percentage of the GDP goes towards education, the majority goes to universities.
The Swaziland National Ex-Miners Workers Association and Cebisa Madoda Nxumalo took the situation to the High Court, arguing that the government was not providing genuinely free education for all.
The judge presiding over the case had to define the term free and determine whether or not the government was complying with the Constitution.
The government tried to shirk its obligation by arguing that this right would be guaranteed progressively and that it was already covering the costs of primary schooling, including of uniforms, for orphans and vulnerable children and that it would gradually do this for other children.
Judge Agyemang rejected this argument, saying: "I reiterate that the context in which the world 'free' appears in Section 29 (6) [of the constitution] as an adjective to describe the word 'education' leaves no ambiguity to the reader.
"It seems to me that the respondents [the government] are seeking to have the court give the words 'free education' an interpretation which will only do violence to the language, will at best be artificial and in reality be absurd," she said.
The judge said that although international laws which allow for the progressive realisation of economic, social and cultural rights are relevant, the main reason why progressive realisation is not included in domestic law under 29.6 is by design, not default. In 1985, Swaziland had achieved universal primary education, and yet in 2009, this is not guaranteed, so this cannot be progressive.
Swaziland signed the African Charter in 1992, but has not yet ratified. However, anecdotal evidence suggests that the Charter played a role in drafting the country's Constitution and Children's Bill. The consultant hired to write the Children's Bill said that Swaziland should ratify the Charter and pass legislation that addresses free and compulsory education as set out in instruments the Charter which does not include the notion of progressive realisation.
Beyond the 2009 case
The government began rolling out free primary education for all in January. However, according to media reports, schools are still turning children away because they do not have uniforms. In this regard, article 11.3 of the Charter on social barriers relevant.
African Commission on Human and Peoples' Rights: The forcible resettlement of Mauritanians
Presented by Angela Naggaga, the Institute for Human Rights and Development in Africa (IHRDA).
Individuals, NGOs and States can bring communications before the Commission. The Commission examines the facts and if finds it cannot negotiate a friendly settlement between the parties involved, it issues recommendations on how to remedy violations.
Between 1989 and 1991, an estimated 75,000 black Mauritanians were expelled to Senegal and Mali because the State argued that they were not Mauritanian citizens. The expulsion took place in the context of wider ethnic unrest and discrimination against black Mauritanians. Mauritania is made up of different ethnic groups – Arab groups in the north and black ethnic groups in the south.
After a coup d'etat, black Mauritanians complained of increasing discrimination and a manifesto was adopted to protect oppressed black Mauritanians. However, there was a backlash against this and a wave of repression followed, resulting in extra-judicial executions, torture, and finally, expulsion. Some decided to seek legal redress to get recognition that they were Mauritanian citizens and accountability for violations. In 1991, a law was passed that made it impossible for anyone to prosecute government agents. Between 1991 and 1997, the Commission received 35 communications. The Commission merged this complaint into one.
There is no formal way of presenting a communication to the Commission, many petitioners write a letter, but do not relate their complaint to the Charter's provisions. While the Commission cannot refuse to consider such complaints, the lack of specific guidelines causes delays. Where communications are not framed in the Charter's provisions, the Commission writes to the petitioner to request more information, but the complainant will not know what information to provide and many end up abandoning the communication.
In the case of Mauritania, IHRDA drafted a legal brief based on the complaints of a group of Mauritanian widows, relating the complaint to article 2 of the Charter on non-discrimination, as well as the right to life and to property.
The Commission was in the early stages of receiving communications. It wrote to the State party repeatedly, but received no reply.
IHRDA decided to bring a victim before the Commission to testify for the first time. The Commission has no formal way of considering victim testimony, but can listen to anyone capable of providing it with useful information.
In 2000, the Commission ruled that the State's actions had violated a number of Charter provisions and ordered Mauritania to restore citizenship to those affected, compensate the victims, reinstate every public worker who was unduly dismissed and prosecute those who had perpetrated violations.
The Commission's decisions are not legally binding on States, but are framed as recommendations. However, under the Commission's new rules of procedure, which will be adopted in May this year, the Commission will be able to refer cases that have not been complied with to the African Court.
Another element of IHRDA's strategy was to form a partnership with the Open Society Justice Initiative as well as the Commission's Rapporteur on Refugees and Internally Displaced Persons to give the complaint more weight. They engaged with all those involved to develop a plan for the victims' return, including the governments of Mali and Senegal and undertook a mission to all the countries concerned.
Despite two coups d'etat between 2005 and 2008 in Mauritania, constant engagement with the parties concerned kept the process alive. The groups' return began in January 2008. IHRDA continues to monitor process with others.
Read the recommendations here.
ECOWAS: Case of child slavery brought against Niger
Presented by Moussa Sidikou, CONAFE - Niger
A 2002 study by the NGO Timidria identified up to 7,000 slaves in border regions where people from nomadic groups were sold into slavery. Many people did not believe the study and criticised the civil society organisations which supported the study.
In 2003 political leaders began to acknowledge the phenomenon and the State conducted its own study which confirmed not the existence of slavery on the country's borders with Nigeria, Mali and Algeria.
In 2003, lawmakers reformed Niger's penal code to allow punishments of up to 30 years in prison for keeping slaves.
However, in 2003, Timidria discovered the case in one village, of Hadijatou Mani, a 12-year-old who was sold for 500 dollars to a 60-year-old man - Souleymane Naroua, who already had 12 wives.
The NGO informed Ms Mani's family about the new law. She had already tried to escape from her family 10 times during the marriage. When her family got word to her about the new law, she fled again. After a few days, her husband came looking for her, but she told him she was free. Her husband decided to pursue his claim to her legally despite the new law. The judge told him he would go to prison if he continued in his pursuit of the case.
Meanwhile, Ms Mani got married and fell pregnant. However, her ex-husband appealed to a higher court and bribed the judge to overrule the first judgement. Ms Mani was summoned by the judge and sentenced to six months for bigamy. Her brother was imprisoned for conspiracy.
She spent one month and six days in prison before the NGO's lawyer helped her obtain temporary release.
She took her case to the Court of Justice of the West African regional body ECOWAS (what is this?) in Abuja, arguing that the government of Niger had failed to protect her from slavery in contravention of the Constitution of Niger and the African Charter on Human and Peoples' Rights.
Today, Ms Mani is free and married to the person she loves. She is a great campaigner against slavery and has set up an organisation to ensure every child can go to school and learn about his or her rights.
Read the judgement here: www.interights.org/niger-slavery
The Livingstone Formula is the mechanism through which civil society organisations (CSOs) can engage with the Peace and Security Council of the African Union to promote peace, security and stability in Africa. It is named after the retreat held to discuss the interaction of CSOs with the Council held in Livingstone, Zambia in December 2008.
Following a presentation by the African Union on how civil society can engage with issues of children, peace and security within the AU, participants drew up some recommendations to present to the AU.
Maternal, child and infant health and development
This year, the African Union (AU) will dedicate its July Summit to Maternal, Child and Infant Health and Development. This is the first time the AU has dedicated its summit to a children's issue.
In light of this event, global advocacy campaigns on maternal were presented to the forum on child and infant health were presented by the African Union Department of Social Affairs Save the Children, Plan International and World Vision.
Recommendations were discussed and adopted to present to the AU Summit. Read the Communique here.
Child rights and budgets
Budgeting for the rights and welfare of the child will be the theme of this year's Day of the African Child.
In light of this theme, participants heard case studies from those who have done it on what works, what does not, and the gains that influencing budget allocations have made in helping children realise their rights.
Josphat M. Mathe, from SADC Child Budget Network presented the experience of Zimbabwe with the Child Friendly Budget Initiative.
He spoke of the particular challenges faced by the Child Friendly Budget Initiative in Zimbabwe as a result of the socio-economic situation, and due to the unstable political environment. This was a particular obstacle in 2007-8 with the suspension of NGO field operations and the absence of the main advocacy target – the parliament in most of 2008 and part of 2009. Read more here.
Yehualashet Mekonen, from the African Child Policy Forum (ACPF) looked at the links between child wellbeing and budgeting and spoke of ACPF's index on the issue. Read the full presentation here.