The right to education
Education is an essential right, which permits each
person to receive instruction and to blossom socially. The right to an
education is vital for the economic, social and cultural development of all
societies. The right to education is a privilege.
A good education system should have the ability to
instill the national values and principles of the Constitution within the
curriculum, provide certain skills to better the lives of Kenyans, transmit
culture, and introduce extra curriculum activities such as sports.
The
Constitution of Kenya 2010 recognizes education as a basic
human right and offers a solid foundation for the government commitment to
education, and for extensive reforms in policy, legislation, and curriculum
aspects of the education sector.
Article 53(1) (b) has provided for free and
compulsory basic education as a human right to every Kenyan child. Other
constitutional provisions are:
i.
Article 43(1) (f) which recognizes
education as a basic socio-economic right for every person.
ii.
Article 54(1) (b) which provides for the
rights of persons with disability to access educational institutions and
facilities integrated into society to the extent compatible with the interests
of the person.
iii.
Article 55(1) (a) which requires the
State take measures to ensure that the youth access relevant education and
training.
iv.
Article 56(1) (b) which recognizes the
rights of minorities and marginalized groups to education.
v.
Article 260 defines a child as any
individual who has not attained the age of eighteen (18) years.
vi.
Schedule 4, Part 2, section 9 attributes
responsibility for pre-primary education and childcare facilities to the county
governments.
Article
28 of the UNCRC provides that children have a right to
an education. Discipline in schools should respect children’s human dignity.
Primary education should be free. Wealthy countries should help poorer
countries achieve this.
Article
29 of the UNCRC further provides that education should
develop each child’s personality and talents to the full. It should encourage
children to respect their parents, and their own and other cultures.
Though the Children’s
Act 2001 set out to entrench and protect the rights and welfare of Kenyan
children, reports of rampant violations continue to suffice.
Perhaps the most immediate challenge to the law
makers and those charged with the implementation of the laws concerning
children in Kenya is the harmonization of the provisions in the Children Act
2001 with provisions and requirements contained in the new constitution.
The mini bill of rights for children contained in
Article 53 creates immediate State obligations to fulfill socio-economic rights
of children. In effect, the government is henceforth bound to deliver
healthcare, education, nutrition and shelter to all children irrespective of
budgetary implications.
The new duty with respect to education is vested
upon both the State and parents, therefore making it greater than that provided
for in the Children’s Act.
The government of Kenya has taken positive steps in
the realization of the right of education for children, including the
following:
i.
Formation of a taskforce to review
education, training and research. Its work is to propose an appropriate
education management system at the national and county levels.
ii.
A UNICEF
report documents that in tandem with
international children’s rights, the new Constitution establishes in Kenya law
internationally acclaimed principles on the rights of the children, such as
best interests of the child which is now to be paramount in every matter
concerning children. It further recognizes age as a ground for discrimination,
which is critical to the application of the rest of the rights recognized in
the Bill of Rights to children.
iii.
The
Ministry of Education, together with other implementing
agencies, have endeavored to ensure harmonization of the education standard
throughout the country, capacity-building for teachers, and guarantee of up to
date educational facilities.
iv.
Unbundling the term progressive
realization of the right to education with clear action plans and timelines
will form a core part of the reform process for the Kenyan education system.
In the case of Mitubell Welfare Society vs. the Attorney
General & 2 Others[1], Isaac Lenaola J. held that no provision
of the constitution is intended to wait until the state feels it is ready to
meet its constitutional obligations.
In
the case of Section 27 & 2 Others vs. Minister for Education[2],
Kollapen J sitting at the High Court
in South Africa at North Gauteng made declarations that included that the
failure by the Limpopo Department of Education and the Department of Basic
Education to provide text books to schools in Limpopo was a violation of the right
to basic education, and that the two Departments should develop a
‘catch-up/remedial’ plan for affected grade 10 learners in Limpopo. The court
went even further to demand updates on how the orders would be implemented.
Unlike the United Kingdom, Kenya does not have a
legal school age[3].
Moreover, whereas it imputes obligations on parents to take their children to
school, they are not clearly defined. There is no legal duty on children to
attend school. Rather, the legal obligation is placed squarely on the parent
under section 7 of the UK Education Act
1996 thus: the parents of every child of compulsory age shall cause him to
receive efficient full-time education suitable-
a) To
his age, ability and aptitude, and
b) To
any special educational needs he may have, either by regular attendance at
school or otherwise.
The parent’s
duty is to register the child at school and secure attendance at school. Only application of statutory excuses can
make the child fail to attend school; for example that the child is sick as
seen in the case of Jenkins vs. Howells[4].
As a model of human rights, the United Kingdom has
gone further to protect the rights of a child at school for example against
bullying (Bradford-Smart vs. West Sussex County Council[5])
by requiring that after implementation of the Human Rights Act 1998(which is
implemented as per now), article 3 of the European Convention will require the
state to ensure that children are protected from bullying that reaches the
level of being torture or inhuman or degrading treatment, as also enunciated in
A
vs. UK(Human Rights: Punishment of Child)[6].
The right to information
Children have the right to age-appropriate
information about their HIV status and should not be the last to find out that
they are HIV-positive[7].
Disclosure can start from age 6 depending on the child’s maturity. Under
the Convention on the Rights of the Child, children under age 18 have a right
to information about their own health.
The World Health Organization has stated that "informing
older children of their diagnosis of HIV improves adherence," to taking
anti-retroviral medication and has recommended that children above age 10
should be involved in discussing HIV testing.
The American Academy of Pediatrics encourages
disclosure of HIV status to school-age children.
"There is a conflict of interest between the parents' needs and the
child's needs, but we need to disclose before the child reaches adolescence
because they run into very serious problems with adherence [to ART]... The
problem once you get to into adolescence, they feel cheated if they are not
disclosed. There is a loss of trust for adults in their lives, they are not
sure what they can believe."[8]
For adopted
children no provision stipulates the requirement for them to know their origin.
Article 8 of the UNCRC is to the extent that State
parties should undertake to respect the right of the child to preserve his or
her identity, including nationality, name, and family relations as recognized
by law and without unlawful interference.
The Declaration on Social and Legal Principles
relating to the Protection and Welfare of Children, Article 9 thereof provides
that the need of a foster or an adopted child to know about his or her
background should be recognized by persons responsible for the child’s care,
unless this is contrary to the child’s best interests.
Godelli
vs. Italy[9]
The case concerned the confidentiality of
information concerning a child’s birth and the inability of a person abandoned
by her mother to find out about her origins. It concerned violation of article
8(right to respect for private and family life). The court held that the
Italian system did not take account of the child’s best interests. It
considered that a fair balance had not been struck between the interests at
stake since the legislation, in cases where the mother had opted not to
disclose her identity, did not allow a child who had not been formally
recognized at birth and was subsequently adopted to request either
non-identifying information about his or her origins or the disclosure of the
birth mother’s identity with the latter’s consent.
The right to clean water
The right to water is a fundamental human right and
a prerequisite for the realization of other human rights. Four guiding principles
guarantee health and survival and depict water as an indispensable resource for
life & survival:
i.
Availability of water- water must be
available in enough quantity for personal and domestic uses.
ii.
Accessibility of water- facilities and
services must be in place to ensure access to enough water.
iii.
Quality of water- water must be clean,
potable and biologically free of health risks.
iv.
Stability and reliability- the water
that is available and accessible and of good quality should be able to sustain
in all circumstances (i.e., drought, floods that pollute water, etc).
Water is useful in maintaining the dignity of
children as it not only permits them to enjoy essential hygiene to remain in
good health, but also for respecting their body and their person.
It is essential for survival. Dehydration (lack of
water in the body) kills faster than starvation due to lack of food.
Contaminated water which is water with harmful
elements could cause illness and death if ingested
Water is
involved in all bodily functions: digestion, assimilation, elimination,
respiration, maintaining temperature (homeostasis) integrity and the strength
of all bodily structures.
According to Jon Lane[10],
‘a lack of access to safe drinking water, inadequate sanitation facilities and
poor hygiene strongly interferes with basic human development. Water-related
diseases, including diarrhea, are a major cause of death amongst young children
and each year they kill more children than HIV/AIDS…’
Water cleanliness is essential for the ensuing reasons:
i.
for health;
ii.
for development
iii.
for livelihoods
iv.
for children- diarrheal diseases kills
six thousand children every day of the year.
v.
for dignity.
Inaccessibility to safe and clean water is a threat
to the fulfillment of children’s right to education. Many children do not
attend school due to water-related illnesses such as diarrhea, dysentery and
cholera.
According to publication by Water Sanitation and
Health (WSH) PUBLICATIONS, ‘Safer Water, Better Health: Costs, benefits and
sustainability of interventions to protect and promote health’, water supplies,
hygienic sanitation and good water management are fundamental to global health.
Almost one tenth of the global disease burden could be prevented by:
ü Increasing
access to safe drinking water;
ü Improving
sanitation and hygiene; and
ü Improving
water management to reduce risks of water-borne infectious diseases, and
accidental drowning during recreation.
In 2002 water sector reforms in
Kenya culminated in the passing of the Water
Act[11].
Although the right to water and sanitation is not explicitly provided in the
Water Act, the right to water and sanitation was formally recognized in a
number of key policies developed as part of the water sector reforms.
The chapter of the Bill of Rights in the Kenyan
Constitution, 2010 provides for enjoyment of Economic and Social rights under
Article 43 1 (a-f) on five sectors which include health, adequate food and of
acceptable quality, housing, clean
and safe water and social security.
Right
to water in international instruments
1.) Article 24 of the UNCRC is to the effect that State parties recognize
the right of the child to the enjoyment of the highest attainable standard of
health and to facilities for the treatment of illness and rehabilitation of
health … 2. States parties… shall take appropriate measures: (c) To combat
disease and malnutrition, including within the framework of primary health
care, through, inter alia,… the provision of adequate nutritious foods and clean
drinking water…"
2.) The United Nations’ Charter contains no express
provision or mention of the right to water as part of the achievement of the
charter’s goals.
United
Nations General Assembly Resolution on the right to water and sanitation[12]The General Assembly formally recognized the right to water and sanitation by supporting the Resolution initiated by Bolivia on 28 July, 2010. The Resolution 64/ 292 acknowledges that clean drinking water and sanitation are integral to the realization of all human rights. The Resolution also calls upon States and international organizations to provide financial resources help build capacity and transfer technology to help other countries to provide safe, clean, accessible and affordable drinking water and sanitation for all.
Whilst it is non binding and a long way from a treaty on the right to water and sanitation it is still a welcome step in the right direction.
3.) The 1979 Convention on the Elimination of Discrimination against Women (CEDAW) also states at Article 14(2) that states shall in elimination of discrimination ensure…the right art.14 (2)(h) To enjoy adequate living conditions, particularly in relation to housing, sanitation, electricity and water supply, transport and communications.
4.) The most detailed definition of the content of the right to water came in 2002 from an expert body (CESCR) assessing the implementation of the ICESCR (International Covenant on Economic, Social and Cultural Rights), a treaty only recognizing "implicitly" the right to water. This definition is detailed in General Comment 15 , in which the Committee asserts: "The human right to water entitles everyone to sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic uses. An adequate amount of safe water is necessary to prevent death from dehydration, to reduce the risk of water-related disease and to provide for consumption, cooking, personal and domestic hygienic requirements. "
Example
of how South Africa is enforcing the right to water.
In countries such as South Africa,
in which the right to water is enshrined in the national constitution, courts
have supported and enforced an explicit right to water.
This case clearly demonstrates how the right to water can be
used as a legal tool to make a difference to the lives of those living in
poverty.
This case of September 2001 was brought by a
resident of the Bon Vista Mansions block of flats, Mr. Ngobeni, on behalf of
himself and his fellow residents, following the disconnection by the local
Council of the water supply to the flats, due to non-payment of water charges.
Due to the urgent nature of the
case, the applicant requested interim relief, in the form of a court order to
restore the water supply immediately, while the case was being heard by the
court.
The court used, as a basis for its
decision, Section 27(1)(a) of the South African Constitution, which provides
that everyone has the right of access to water. The court also referred to the
International Covenant on Economic, Social and Cultural Rights, the UN
Committee on Economic, Social and Cultural Rights and its General Comment 12 on
the Right to Food, which imposes on States Parties the obligation to respect
existing access to adequate food by not taking any measures that result in
preventing such access.
The Court found that the applicants
had existing access to water before the Council disconnected the supply, and
that the conditions and procedures for disconnection had not been ‘fair and
equitable’ in accordance with Section 4 (3) of the South African Water Services
Act 108 (1997), since reasonable notice of termination and the opportunity to
make representations had not been provided.
The Court consequently found that
the Council’s disconnection of an existing water supply to consumers
constituted prima facie a breach of its constitutional duty to respect the
right of (existing) access to water and that the applicants had satisfied the
requirements for the granting of an interim interdict. The water supply to the
flats was subsequently reinstated.
This case highlights some of the
remaining challenges in the legal enforcement of the right to water. The
applicant, Thulisile Christina Manqele, was an unemployed mother of seven,
whose water supply had been disconnected as a result of the non-payment of her
water account.
Manqele sought a declaratory order
that the discontinuation of the water supply was unlawful and invalid, under
the terms of the Water Services Act of 1997[15],
as the disconnection had resulted in the applicant and her dependants being
denied access to basic water services when she was unable to pay for the
services.
The South African Water Services Act[16]
refers to the right to a basic water supply, defining this as “the prescribed
minimum standard of water supply services necessary for the reliable supply of
a sufficient quantity and quality of water to households, including informal
households, to support life and personal hygiene”. It defines “prescribed” as
“prescribed by regulation”.
As there was no such guideline
‘prescribed by regulation’ in place in South Africa at that time, the
respondent had adopted a policy of providing the first six kilolitres of water
per month free to domestic consumers in an attempt to fulfill their obligation
under the Act. The applicant’s water consumption per month had, without her
knowledge, far exceeded the basic six kilolitres free service provided by the
respondent.
The court found that, in the absence
of regulations defining the extent of the right of access to a basic water
supply, it had no guidance from the legislature or executive to enable it to
interpret the content of the right embodied in the Act. It therefore held that
the right to water, upon which the applicant relied, was in this case
incomplete and therefore unenforceable.
This case raises many issues, such
as the need for comprehensive national legislation on the right to water and
the clarification of minimum water requirements.
In IndiaIn Attakoya Thangal v. Union of India[17], the Kerala High Court recognized the fundamental importance of the right to water.
In this case, the petitioners claimed that a scheme for pumping up ground water for supplying potable water to the Laccadives (now known as the Lakshadweep Islands) in the Arabian Sea would upset the fresh water equilibrium, leading to salinity in the available water resources and causing more long-term harm than short-term benefits.
In its judgment, the court requested deeper investigation and monitoring of the scheme and the judge clearly recognized the right of people to clean water as a right to life enshrined in Article 21, observing that:
“…The right to life is much more than a right to animal existence and its attributes are manifold, as life itself. The right to sweet water and the right to free air are attributes of the right to life, for these are the basic elements which sustain life itself.”
[1]
Petition no. 164 of 2011
[2]
Case no.24565 of 2012
[3]
The compulsory school age is from 5 to 16 for children in the United Kingdom.
[4]
[1949] 2 KB 218
[5]
[2002] 1 FCR 425
[6]
[1998] 2 FLR 959, [1998] 3 FCR 597
[7] Human
Rights Watch on World AIDS Day, December 1, 2010.
[8]
Professor Ruth Nduati, associate professor of
pediatrics at the School of Medicine, College of Health Sciences, University of
Nairobi, November 12, 2010.
[9]
No. 33783/09 delivered on 25.09.2012
[10]
Executive Director(as she then was) in Water Supply and Sanitation
Collaboration Council(WSSCC)
[11]
Act no.8 of 2002
[12]
JULY 2010
[13] High Court of South Africa, Case No.
01/12312.
[14] Transitional Metropolitan Council in South
Africa, Durban High Court, 2002
(6) SA 423 (D).
(6) SA 423 (D).
[16] Ibid.
[17] 1990 KLT 580
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