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FACT AND REALITY: FREE EDUCATION CHAPTER 3 ARTICLE 20 OF THE NAMIBIAN CONSTITUTION VERSUS THE EDUCATION ACT (NO 16 OF 2001) WITH REGARD TO THE PAYMENT OF SCHOOL DEVELOPMENT FUND CONTRIBUTION (SDF): IMPACT ON ORPHANS AND VULNERABLE CHILDREN (OVC): A BRIEF DISCUSSION
Introduction
The inaccessibility to free and compulsory primary education has been addressed by the U.N. Committee on Economic, Social and Cultural Rights as follows:
“The requirement that primary education be provided, without charge to the child, parents or guardians are unequivocal. The provision of “free” primary education is not conditional on the availability of resources. Accordingly the obligation to ensure that primary education shall be compulsory and free to all applies to all situations including those in which local communities are unable to furnish buildings or individual are unable to afford the costs associated with attendance school”
Cited by: Jayawikrama N: The Judicial Application of Human Rights p.896
The Namibian Constitution versus the Education Act
Does the Education Act violate the letter and spirit of the Namibian Constitution as far as free and compulsory education is concerned? To answer the question, allow me to analyse the relevant provisions of the Constitution and the Act first and then draw the necessary conclusions.
In terms of Article 20 (2) of the Constitution the State shall provide reasonable facilities to render effective the right to education to every resident within Namibia by establishing and maintaining state schools at which primary education will be provided free of charge (emphasis added). This obligation is amplified by the Education Act:
In terms of section 33, the Ministry of Education must:
a) “establish and maintain state schools and classes for the provision of primary education…
b) establish and maintain hostels, teachers’ resource centres, school clinics and other facilities which may be necessary for the benefit of learners and teachers in attendance at state schools and classes….”
In terms of section 38(1) “all tuition provided for primary and special education in state schools including all school books, education materials and other related requisites must be provided free of charge until the 7th grade or until the age of 16 years …. “ (Emphasis added).
In terms of section 38 (2) a learner to whom education other than primary education, is provided, must pay such fees as the Minister may determine (emphasis added).
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MANDATES OF THE OFFICE OF THE OMBUDSMAN
Four distinct mandates can be identified from the provisions of the Constitution of the Republic of Namibia as well as the provisions of the Ombudsman Act (Act 7 of 1990). The four broad mandates are the following:
The Ombudsman Act provides that the Ombudsman must receive complaints before it can act on a specific matter to investigate and to give the proper remedies.
ADMINISTRATIVE PRACTICES
The public at large have to deal with government officials on a daily basis. There is a general expectation that such officials be fair, polite, sensitive, etc. towards a member of the public. It happens in specific cases that such an official departs from the standards that are expected from him or her. The general public needs protection against such officials, because the officials are at times put at places where they have been given certain powers. Such powers must be exercised fairly and timeously.
The Ombudsman has a duty to offer the necessary protection. The Ombudsman will carry out such an investigation and thereafter propose suitable remedies if the complaint is found to be true. The Ombudsman can negotiate or mediate between the parties as part of methods to resolve the problem. The Ombudsman can also make recommendations to the relevant Respondent Institutions to take action against an officer or to have the offending practices stopped. Should such a recommendation not be carried out by the Respondent Institution, the Ombudsman can approach the High Court, by way of an application to obtain an interdict for the enforcement of its recommendation to have the offending actions stopped or to have its recommendation implemented.
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The Office of the Ombudsman in Namibia strives to promote and protect human rights, promote fair and effective administration, combat corrupt practices and protect the environment and natural resources of Namibia through independent and impartial investigation and resolution of complaints, as well as raising public awareness. |
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