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Last Updated: 08/22/2014Zimbabwe's new constitutional dispensation and children's right to education
Loveness Mapuva and Jephias Mapuva
Zimbabwe's new constitution reiterates the right to education for all citizens and permanent residents, and calls for state resources to be made available in order to fulfill this right without discrimination. What is needed now is the political will to realize the right to education for all, and to harmonize existing legislation with the new constitutional provisions.
The right to education in Zimbabwe has traditionally been a creature of statute, with the Zimbabwe Education Act forming the legislative framework for the provision of education in the country. The education system in Zimbabwe was one of the best on the African continent with the country boasting of the highest literacy rate in Africa. However the advent of the Economic Structural Adjustment Programme of 1990-1994 destroyed the education sector and transformed the system from compulsory and free education to paid education requiring parents to pay for the education of their children. This led to an upsurge in school drop outs and corresponding upsurge in delinquency and juvenile criminal activities. Ironically, the Zimbabwe Education Act provides that all children have the right of education. However, education is not free since pupils are required to pay tuition fees as well as development levies. While tuition fees in government schools have been generally very low, development levies at times have proved to be impediments to the provision of free education. The presence of children on the streets in urban areas is an indictment against any claim that education in Zimbabwe is compulsory and free. High costs of books and uniforms have led high drop outs in rural areas.
The right to education in international law
Education is an inalienable and enabling right that enhances the fulfillment of other children’s socio-economic rights hence must be accessible to all children. It is a key lever of sustainable development hence an essential element to the development of individuals, families, local and national communities to which individuals and families belong and to the world at large. Hence, in situations where access to education opportunities for children of primary-school age has been affected it has been accepted as a critical component of humanitarian response. The denial of the right to education can lead to people living in extreme poverty and unable to enjoy the fulfillment of other rights such as the right to health, housing, food and so on. In 2012 the Zimbabwe Vulnerability Assessment Report of 2012 estimated that about one million children in Zimbabwe are out of school due to the fact that they cannot afford the fees and levies. The economic melt-down of the 2000s left many jobless due to company closures. For children with disabilities, the non-existence of appropriate resources have led to their inability to utilize their potential to the maximum. Accessibility of education, as defined by international human right law is a safeguard against denying children access to education by using the excuse of unavailability of resources and charging exorbitant fees, including making available appropriate resources and infrastructure for children with disabilities.
The 4-A Scheme
The right to education is a universal entitlement to education, recognised in various international human rights instruments. Most of these instruments provide that education should be accessible, adaptable, acceptable and available to those entitled to it, known as the 4-A scheme. According to General Comment 13 education in all its forms and levels must exhibit these four inter-related and essential features. Accordingly, the former Special Rapporteur on the Right to Education, Ms Tomasevski, suggested that these four essential features could be used to monitor and evaluate the realisation of the right to education. The 4-A scheme is not necessarily the standard used in every international human rights instrument and hence not a generic guide to how the right to education is treated under national law.
This paper uses the 4-A scheme as a standard for measuring Zimbabwe’s compliance with the legal framework for the achievement of the right to education. The scheme of education denotes access to education on a non-discriminatory basis, enjoyment of free and compulsory primary education, quality education and the right to free choice of education. It therefore, proposes that governments, as the prime duty-bearer, has to respect, protect and fulfil the right to education by making education available, accessible, acceptable and adaptable to every child of school-going age. The 4-A scheme places duties on other stakeholders in the education process such as the child to comply with compulsory education requirements, parents as the ‘first educators’, and teachers as professional educators. This study will only discuss one of the essential elements of the 4-A scheme namely: accessibility of education.
According to General Comment 13, accessibility of education in human rights instruments has three overlapping magnitudes. These are physical accessibility, economic accessibility and non-discrimination which are discussed below. Physical accessibility suggests that schools should be within the safe physical reach of all children of school-going age. Hence, in cases where schools are not within the physical reach of children, appropriate transport facilities should be arranged to transport such children from their homes to school and back so that they do not walk long distances to school. The Ministry of Education, Sports and Culture in Zimbabwe has recommended a radius of 3 kilometres to the nearest school as a reasonable distance. This therefore means that if children walk more than 3 kilometres to the nearest school, it is a violation of physical accessibility of education.
In addition, physical accessibility does not only refer to the provision of school building but attendance is also indispensable. Accordingly, the CRC and the ACRWC require states to take reasonable measures to encourage regular attendance at schools and reduction of school drop-out rates. Similarly, the African Youth Charter encourages states to “take steps to encourage regular school attendance and reduce dropout rates.” The Education Act of Zimbabwe also obligates parents to ensure that their children attend primary school. Accordingly, the former Special Rapporteur for Education proposed the elimination of any legal and administrative obstacles that hinder children’s physical access to school. Obstacles such as the need for a birth certificate for a child to enrol at a school can hinder a child from attending school. Hence, the abolishment of such obstacles will enable education to be physically accessible to all children of school-going age.
The international human rights instruments explicitly provide that primary education must be free and compulsory. This opens doors to ensure that every child of school-going age receives an education. In terms of General Comment 11, school fees and other direct costs may constitute disincentives to the enjoyment of the right to education and may jeopardize its realization. This means that education should be free and no other amounts should be charged to the child, parents or guardians. Free education enables every parent or guardian to send their children to school, hence, education can become compulsory for all children of school-going age. General Comment 11 also provides that accessibility of education also entails the elimination of any direct costs involved in ensuring children acquires an education. Most parents especially in developing countries are generally poor and cannot afford to pay for their children’s school fees let alone, additional or hidden costs. Hence, the elimination of any direct costs such as expensive uniforms and textbooks can reduce the burden on parents and fees.
General Comment 13 emphasises that education in all its forms and levels must exhibit these four inter-related and essential features. Furthermore, the Former Special Rapporteur on the right to education, Ms Tomasevski, suggested that the four essential features could be used to monitor and assess the realisation of the right to education. Consequently, the discussion of these instruments in this study will be under the 4-A scheme as a standard for measuring Zimbabwe’s compliance with the legal framework for the achievement of the right to education during the FTLRP.
The CESCR, in its General Comment 13, identifies four elements of the state’s obligations with respect to the right to education. These are (1) availability, (2) accessibility, (3) acceptability and (4) adaptability.
Availability denotes functioning educational institutions and programmes have to be available in sufficient quantity within the jurisdiction of the State party, including adequate programmes and buildings as well as attendant elements such as sanitation facilities for both sexes, safe drinking water, trained teachers receiving domestically competitive salaries, teaching materials, and so on; while some will also require facilities such as a library, computer facilities and information technology.
Accessibility implies that educational institutions and programmes should be accessible to everyone, without discrimination, within the jurisdiction of the State party. Accessibility can be physical accessibility implying reasonably convenient geographic location and modern technology; or economic accessibility in which education should be affordable to all.
Acceptability meaning that the form and substance of education, including curricula and teaching methods, have to be acceptable and relevant and of good quality to students and should meet minimum educational standards as approved by the State Adaptability notes that education has to be flexible so it can adapt to the needs of changing societies and communities and respond to the needs of students within their diverse social and cultural settings.
The Right to Education and Zimbabwe’s new Constitutional Dispensation
Taking cognisance of the long absence of a constitutionally-protected mode of education, the new Zimbabwean Constitutions provides for a conducive environment for the provision of education in the country, in line with international instruments. The right to education is contained under section 75 of the Constitution of Zimbabwe. Below is a blow-by-blow analysis of the constitutional provisions of the right to education.
The Constitution provides that Every citizen and permanent resident of Zimbabwe has a right to education and its attendant procedures and processes. The most vital aspect of this preamble to the right to education is that it is non-discriminatory and exhorts the government to treat all humans equally.
Section 75 (1) of the Constitution stipulates that every child has a right to a basic State-funded education, including adult basic education; and further education, which the State, through reasonable legislative and other measures, must make progressively available and accessible. However, while the provision is noble, but the economic status quo does not allow the government to fund education, even primary education which according to international instruments should be free and compulsory. It has become commonplace to see children of school-going age not attending school because they cannot afford the fees, let alone the government whose mandate should be to provide state-funded education. Of most concern is the failure by government to fund tertiary education where most high-flying students cannot afford to pay the exorbitant tuition, with the cadetship programme meant to pay for students in tertiary institutions failing to cope with the rising numbers of students seeking university education. Consequently tertiary education has become inaccessible to some students, especially those from poor backgrounds.
In addition to the availability and accessibility of education, section 75 (2) of the Constitution provides that Every person has the right to establish and maintain, at their own expense, independent educational institutions of reasonable standards, provided they do not discriminate on any ground prohibited by this Constitution. This is a welcome move by the legislature where due recognition if made of private educational institutions and their role in the provision of education in the country. Through this provision, the government acknowledge the role of private educational institutions in complementing government efforts in providing education and enhancing skills for the county’s workforce. In addition to allowing the establishment of private educational institutions, the government demands and seeks to maintain high standards of education from these institutions. Discrimination of any kind in these institutions as well as those of government is strictly prohibited.
Section 75 (3) provides that a law may provide for the registration of educational institutions referred to in subsection (2) and for the closing of any such institutions that do not meet reasonable standards prescribed for registration. This means that the government seeks to ensure that all private educational institutions operate within the confines of the law and should therefore be registered by the appropriate authority. However there has been cases of unregistered private educational institutions operating in the country with some having been closed once they are discovered the educational quality controllers within the Ministry of Higher and Tertiary Education.
Section 75 (4) stipulates that the State must take reasonable legislative and other measures, within the limits of the resources available to it, to achieve the progressive realisation of the right set out in subsection (1). While this provisions seeks to ensure that the provision of education is done within the confines of existing legislation, what has been disappointing in this regard has been the lack of political will to align the provisions of the new Constitution to the legislation which has been in existence for more than a decade. Although the government has been given leeway by international instruments and the Constitution to take legislative and other measures within the limits of the resources, what has been disappointing is that not much resources have been devoted or committed to the realisation of children/citizens’ right to education. This is exhibited by limited cadetship opportunities as well as very few scholarships for the gifted students to explore their educational potential. As has been noted, the government has not taken much legislative measures to align and reconcile the Education Act (1996) to the new Constitution (2013).
In addition to section 75 which provides for children’s right to education, another provisions, notably section 19 (3) (b) (ii) protects children against child labour would most like impact on the children’s propensity to indulge in educational activities. However the migration of people to new farms under the land Reform programme has culminated in some children having to accompany their parents where cases of children abandoning school are rampant due to a variety of reasons.
In addition, the welfare of the girl child is recognised in the new Constitution, given her vulnerability to such cases as early marriages, rape and abuse among other things. Section 27 places an obligation on the State to take reasonable measures to ensure that girls are afforded the same opportunities as boys to obtain education at all levels. In this provision, the State is obligated to ensure gender equality at an early age, and to show preferential treatment for girls.
While Zimbabwe should be commended for unparalleled standards of educations, especially so in the 1980s and 1990s, economic challenges, coupled with sanctions have derailed the country’s efforts in this regard. However, government should endeavour to align the existing education legislation to the new Constitution. Additionally, the government should engage non-state actors to promote the funding of education and mobilise all stakeholders in this regard. It has also been noted that the new Constitutions seeks to engender a culture of gender equality at an early age.
Beiter KD The Protection of the Right to Education by International Law: Including a Systematic Analysis of Article 13 of the International Covenant on Economic, Social and Cultural Rights (2006) 335.
Constitution of Zimbabwe (2013).
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Coomans F ‘Content and Scope of the Right to Education as a Human Right and Obstacles to Its Realisation’ in Donders Y & Volodin V (eds) Human Rights in Education, Science, and Culture: Legal Developments and Challenge (2007) 197.
General Comment 11
General Comment 13 para 6.
INEE Policy Roundtable 2010: An Enabling Right: Education for Youth Affected by Crisis available at http://www.ineesite.org/en/inee-events/policy-roundtable_10 [accessed 18 May, 2014]
The African Youth Charter
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 UNICEF Child protection available at http://www.unicef.org/teachers/protection/instability.htm [accessed 18 April 2014]
 UNESCO Education and skills for inclusive and sustainable development beyond 2015
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 General Comment 13 para 6.
 Beiter KD The Protection of the Right to Education by International Law: Including a Systematic Analysis of Article 13 of the International Covenant on Economic, Social and Cultural Rights (2006) 335.
 Coomans F ‘Content and Scope of the Right to Education as a Human Right and Obstacles to Its Realisation’ in Donders Y & Volodin V (eds) Human Rights in Education, Science, and Culture: Legal Developments and Challenge (2007) 197.
Dr Jephias Mapuva is a Senior Lecturer in Development Studies at Bindura University of Science Education (Zimbabwe). Loveness Muyengwa-Mapuva is a Law lecturer at Midlands State University- GWERU-ZIMBABWE.