The right to education is an internationally recognised right. It can be enforced through a wide variety of judicial and quasi-judicial mechanisms. Judicial mechanisms such as national, regional and international courts are important to address claims based on national or international law. Their judgements have proven crucial in de ning the specific entitlements available to citizens under national and international law, and have acted as catalysts by moving schools and governments to act according to their obligations.
We must also recognise and appreciate the importance of quasi-judicial mechanisms, such as local administrative bodies, national human rights institutions, ombudspersons and human rights commissions, which carry out inquiries and investigations, and recommend the adoption of appropriate measures for protecting the right to education in cases of its violation or breach.
The justiciability of the right to education has its basis in national legal systems which provide grounds for the ‘right of action’ to claim full enforcement of this right when it is not respected or fulfilled. A salient feature of the Constitution of South Africa is that it establishes the right to basic education and specifically recognises its justiciability as a constitutional right.
The Constitution of South Africa provides that any citizen has the right to approach a competent court when a right, including the right to education provided in the Bill of Rights, has been infringed or threatened. The rulings by the Constitutional Court of South Africa have upheld this right to education. The South African Human Rights Commission (SAHRC), with its monitoring role in respect of all human rights including the right to education, is also an important quasi-judicial mechanism. The recommendations and decisions of the Commission, even though not legally binding, are important as ‘soft’ enforcement mechanisms. In addition to this, monitoring the implementation of the right to education and its protection at regional level is important within the framework of the African Charter on Human and Peoples’ Rights, and the African Charter on the Rights and Welfare of the Child.
Protection and promotion are two normative pillars of a human rights system on which a national legal system should be edi ed. The judicial and the quasi-judicial mechanisms are protective as well as promotional in safeguarding and enforcing the right to education.
“Ready to Learn?” constitutes an important step in supporting and concretising the Human Rights Council Resolution 23/4 on the Right to Education, adopted in June 2013, which urges all countries to adopt legislation on the right to education; to create independent institutions and mechanisms to enforce such rights; and to ensure lawyers, judges and administrators are adequately trained on how such rights are to be enforced. Courts should be empowered to require governments to take action when the right to education is being denied.
Existing jurisprudence on the right to education should be publicised so that both judicial and quasi-judicial mechanisms can draw upon it in comparative situations. It is very important to create a database on the right to education and its justiciability: the present volume is an important step in that direction.
Lack of awareness of the right – including the legal, cultural and procedural barriers to its application, the high cost of litigation and the lack of legal assistance – are some of the challenges faced in making the right to education effectively justiciable. States must ensure that judges, lawyers, members of quasi-judicial bodies and training bodies, and universities are educated themselves in the application of the right to education in law and how such claims should be brought.
It is important to emphasise the need for concrete ways in which the right to education can be made more enforceable. These include promoting public interest litigation, providing legal aid, engaging with parliamentarians, educating the public on their rights, and promoting research with academic institutions. While the private sector is a partner in supplementing the government in providing education, the corporate obligation to maximise profit must be tempered by clear obligations under the law, so as to ensure social responsibility in education.
I am sure the present volume will prove a very useful resource for academics, researchers, human rights defenders, educationists and policy makers seeking to uphold the right to education and ensure its enjoyment in terms of entitlement. This is all the more important as the right to education is an overarching right, essential for the exercise of all other human rights. Raising public debate on issues of critical importance for its full realisation is essential for upholding it. I also hope that the present volume will stimulate further research and reflections in an endeavour to ensure that the right to education is safeguarded and effectively enforced for generations to come.
Dr Kishore Singh
United Nations Special Rapporteur
on the Right to Education