UNDERSTANDING AND IMPLEMENTATION OF THE RIGHT TO EDUCATION IN RURAL AREAS 

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CHAPTER TWO UNDERSTANDING AND IMPLEMENTATION OF THE RIGHT TO EDUCATION IN RURAL AREAS

INTRODUCTION

Chapter 2 and Chapter 3 report on the literature review done for this study.  The main aim of the literature review is to assist the researcher to critically review the existing knowledge with regard to  educational  legislation,  rural  education  and,  especially  the  “best  interests  of  the  child” principle. Chapter  2  includes  literature  that  provides  an  insight  into  understanding  andimplementation of the right to education in rural areas.  Chapter 2 also reviews literature that focuses on the quality of education in rural schools in South Africa and especially on rural schools in KZN.
Reviewing  literature  assisted  the  researcher  to  identify  applicable  knowledge  and  existing research in the field of education in the “best interests of the child”.  The “best interests of the child” principle formed an important part of this study therefore the literature review in Chapter 3 focusses specifically on the “best interests of the child” principle.  Critically analysing existing sources and research findings assisted the researcher to identified gaps in the literature and provided an argument for conducting this study.

THEME 1:  LEGISLATION

THE RIGHT TO EDUCATION

“Education … it is one of the most powerful catalysts for poverty reduction” (Watkins, 2000). It is widely accepted that education plays an important role in empowering people to lifting themselves out of poverty, especially in rural areas.  In South Africa, and specifically in the rural areas, the majority of the poor have no access to quality education.  Poverty is closely related to poor education, as the latter results in a lack of employment.   “The poor suffer from lack of access to education, quality health care, basic infrastructure- and, transport, and are heavily indebted, have little access to productive resources” (Klasen, 1997, p. 51).  This section first sets out to explain the right to education that in line with international laws.   The right to education is then discussed from a South African perspective.  Various perspectives on the right to education, as well as the lack of a concrete definition of a “basic education”9  are then discussed.

THE RIGHT TO EDUCATION UNDER INTERNATIONAL LAW

The right to education is protected by international law and must be interpreted in line with international laws.  For more than forty years (1948 – 1990) South Africa was in conflict with international  law,  but  the  new  Constitution  (1996),  instructs  courts  of  law  to  prefer  an interpretation of legislation that is in consistent with international law therefore the Constitution must take international law into account (Van der Vyver, 2012).  South Africa is a constitutional democracy and international law is a pillar of its democracy (Dugard, 1997).  Section 233 of the 1996 Constitution states:
“When interpreting any legislation, every court must prefer any reasonable interpretation of  the  legislation  that  is  in  consistent  with  international  law  over  any  alternative interpretation that is inconsistent with international law.”
Education has come to be recognised in international law as a fundamental human right (Van der Vyver, 2012).  International law has three sources, i.e. “customary international law, treaties and  conventions  and  soft  law”  (Hassim,  Heywood  &  Berger,  2007,  p. 131). The  above-mentioned sources are recognised instruments that provides guidance in interpreting section 29(1) (a) of the Constitution and the Bill of Rights (Arendse, 2011; Bekink, 2012; Simbo, 2012).
The following international instruments are relevant in defining the meaning of the right to basic education:   The Universal Declaration on Human Rights (UDHR), 1948,10   the International Covenant  on  Civil  and  Political  Rights  (ICCPR),  1966,11 the  International  Covenant  on Economic,  Social  and  Cultural  Rights  (ICESCR),  1966,12   the  General  Comments  of  the ICESCR; the African Charter on the Rights and Welfare of the Child (ACRWC)13   and the Convention on the Rights of the Child (CRC), 1989.14   The UDHR, the ICCPR and the ICESCR constitute the International Bill of Rights (Van der Vyver, 2012).  The International Bill of Rights provides for the right to education at a global level.

THE UNIVERSAL DECLARATION ON HUMAN RIGHTS

According  to  Arendse  (2011)  and  Cürr  (2012),  the  first  international  instrument  to  give expression to the right to education was the Universal Declaration of Human Rights (UDHR). The UDHR recognises that all human beings have inherent dignity and equal rights.   It was adopted and proclaimed by the General Assembly of the UN on 10 December 1948.   “As a member of the United Nations, South Africa is subject to the moral suasion of the Universal Declaration of Human Rights” (Du Plessis, Conley & Loock, 2007, p. 200).  The UDHR set the principles for a worldwide acknowledgement of the significance of education for all and almost all governments throughout the world acknowledge this right (Du Plessis, et al., 2007).   “The moral foundations of the right to education, are laid in the Universal Declaration on Human Rights” (Du Plessis et al., p. 200).  Article 26 provides that:
(1)  “Everyone has the right to education.   Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory.
(2)  Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms.  It shall promote  understanding,  tolerance  and  friendship  among  all  nations,  racial  or religious  groups,  and  shall  further  the  activities  of  the  United  Nations  for  the maintenance of peace.
(3)  Parents have a prior right to choose the kind of education that shall be given to their children.”
Education is important for children, because they can realise their full potential.  Article 26(3) focuses on the right of parents regarding control of their child’s education.

THE INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS

The ICESCR is an international legal instrument that affords protection to a range of social, economic and cultural rights.  It was adopted by the UN on 16 December 1966 and entered into force on 3 January 1976 (Petherbridge, 2012).  It is arguably the most important international convention and covers the right to education.  South Africa has not yet ratified the ICESCR and as a result, this instrument is not yet legally binding upon South Africa (Petherbridge, 2012). Article 13 and 14 guarantee the right to education.  Article 13 places a duty on States Parties to provide different levels and types of education and defines the “right to education” as follows:
The State Parties to the present Covenant recognise the right of everyone to education.  They agree that education shall be directed to the full development of the human personality and the sense  of  its  dignity,  and  shall  strengthen  the  respect  for  human  rights  and  fundamental freedoms.  They further agree that education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations an all racial, ethnic or religious groups, and further the activities of the UN for the maintenance of peace.
(1)   “The States Parties to the present Covenant recognize that, with a view to achieving the full realization of this right:
(a)  Primary  education  shall  be  compulsory and  available  free to  all  (ICESCR, Article 13).” General Comment 13 on the right to education entrenches the so-called “4-A’s Framework”, developed  by  the  former  UN  Special  Rapporteur  on  the  Right  to  Education,  Katarina Tomasevski15 and indicates that education must exhibit the following essential features:

• “Availability (functional educational institutions have to be available in sufficient quantities);
• Accessibility (education has to be accessible to everyone, without discrimination);
• Acceptability (the form and substance of education have to be acceptable) and
• Adaptability (education has to be flexible, so that it can adapt to the needs of changin societies and communities)” (Van der Merwe, 2012).

The “4-A’s Framework” is a useful device to analyse the content of the right to basic education in terms of section 29(1) (a) as well as the obligations deriving from this unqualified right (Du Plessis et al., 2007).  Article 13(2)(d) of the ICESCR also refers to “fundamental education” and General Comment 13 notes that fundamental education corresponds with basic education, as set out in the World Declaration on Education for All (EFA) (Van der Merwe, 2012).  Although South Africa signed the ICESCR on October 3, 1994, indicating its intention to become a party to, it is not yet been ratified by Parliament and, as a result, this instrument is not yet legally binding16 on South Africa (Zimmerman, 2008).  Similarly, Alvarez and Widener (2001) argue that the fact that South Africa has not yet ratified the ICESCR is a major setback for South Africa, because this instrument is not legally binding.   Hardowar (2009) supports this argument by stating that on ratifying the ICESCR, South Africa will bind itself to its obligations, goals and standards and will be bound in international law.   Ratification of the ICESCR would align domestic  legislation  and  policies  with  the  obligations  contained  in  the  ICESR A  further
significant factor in this argument is proposed by Petherbridge (2012), who points out that this action would signal South Africa’s dedication to advancing socio-economic rights and that this may assist in improving its international credibility regarding its approach towards the protection of socio-economic rights, especially the right to basic education.  However, the wording in the provisions on primary education is almost identical to the CRC, which has been ratified by all states, including South Africa. Article 13(2)(a) and (b) obliges state parties to make primary education  compulsory  and  free,  whereas  secondary  education  “shall  be  made  generally available and accessible” (Arendse, 2011).

Article 14 of the ICESCR states:

“Each State Party to the present Covenant which, at the time of becoming a Party, has not been able to secure in its territory or other territories under its jurisdiction compulsory primary education, free of charge, undertakes, within two years, to work out and adopt a detailed plan of action for the progressive implementation, within a reasonable number of years, to be fixed in the plan, of the principle of compulsory education free of charge for all.”

DEDICATION
ACKNOWLEDGEMENTS 
DECLARATION 
DECLARATION FROM LANGUAGE EDITOR 
ABSTRACT 
LIST OF KEY WORDS 
CONTENTS 
LIST OF FIGURES AND TABLES
MY RIGHT TO LEARN
CHAPTER ONE  INTRODUCTION AND ORIENTATION 
1.1 INTRODUCTION
1.2 ORIENTATION TO THE STUDY
1.2.1 STATEMENT OF THE RESEARCH PROBLEM
1.2.2 RESEARCH QUESTIONS
1.2.3 RATIONALE
1.2.4 RESEARCH PURPOSE
1.3 CONCEPTUAL FRAMEWORK
1.4 PARADIGM OF THE STUDY
1.5 RESEARCH DESIGN AND METHODOLOGY
1.5.1 SELECTION OF PARTICIPANTS AND DATA COLLECTION INSTRUMENTS
1.5.2 THEMATIC ANALYSIS OF THE DATA
1.6 LIMITATIONS AND CHALLENGES OF THE STUDY
1.7 ETHICAL CONSIDERATIONS AND GAINING ACCESS TO THE RESEACH SITE
1.8 LAYOUT OF THE STUDY
1.9 SUMMARY
CHAPTER TWO  UNDERSTANDING AND IMPLEMENTATION OF THE RIGHT TO EDUCATION IN RURAL AREAS 
2.1 INTRODUCTION
2.2 THEME 1: LEGISLATION
2.3 THEME 2: RURAL EDUCATION
2.4 SUMMARY
CHAPTER 3  THE BEST INTERESTS OF THE CHILD PRINCIPLE: AN OUTLINE
3.1 INTRODUCTION
3.2 THE “BEST INTERESTS OF THE CHILD” PRINCIPLE IN INTERNATIONAL LAW
3.3 THE DEVELOPMENT OF THE BIC AS A CONSTITUTIONAL RIGHT
3.4 THE MEANING OF THE “BEST INTERESTS OF THE CHILD”
3.5 BIC IN THE SOUTH AFRICAN CHILDEN’S ACT, 38 OF 2005
3.6 BIC PRINCIPLE IN AN EDUCATIONAL CONTEXT
3.7 THE CONTRACTION OF THE BIC AND THE REALITY IN EDUCATION
3.8 VAGUENESS OF THE “BEST INTERESTS OF THE CHILD” PRINCIPLE IN EDUCATION
3.9 EDUCATION IN THE BEST INTERESTS OF THE CHILD
3.10 THE IMPORTANCE OF BIC PRINCIPLE IN EDUCATION
3.11 THE CHALLENGES IN THE IMPLEMENTATION OF THE BIC PRINCIPLE
3.12 SUMMARY .
CHAPTER 4  RESEARCH METHODOLOGY
4.1 INTRODUCTION
4.2 THE RESEARCH METHODOLOGY
4.3 RESEARCH TECHNIQUE: A CASE STUDY DESIGN
4.4 OBTAINING PERMISSION TO CONDUCT THE RESEARCH
4.5 SAMPLING
4.6 DATA COLLECTION
4.7 CODING OF SCHOOLS AND PARTICIPANTS
4.8 QUALITY IN QUALITATIVE RESEARCH
4.9 SUMMARY
CHAPTER 5 THEMATIC DATA ANALYSIS AND RESEARCH FINDINGS
5.1 INTRODUCTION
5.2 THEMATIC DATA ANALYSIS
5.3 FINDINGS
5.4 SUMMARY
CHAPTER 6  CONCLUSIONS
6.1 RESPONDING TO THE RESEARCH QUESTIONS
6.2 SUMMARY
CHAPTER 7 SIGNIFICANCE OF THE STUDY, RECOMMENDATIONS AND SUGGESTIONS FOR FURTHER RESEACH 
7.1 INTRODUCTION
7.2 SIGNIFICANCE OF THE STUDY
7.3 RECOMMENDATIONS
7.4 SUGGESTIONS FOR FURTHER RESEARCH
7.5 FINAL NOTE
BIBLIOGRAPHY
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