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). The Constitution and the Education Act contain a number of peremptory provisions in which the words such as “shall” and “must” are used. A peremptory provision is defined as a statutory provision that requires exact compliance; failure to comply with a peremptory provision will leave the ensuing act null and void. In terms of the above peremptory provisions of the Namibia Constitution and the Education Act (which provisions require exact compliance), the State is under a legal duty to provide, establish and maintain state schools, classes, hostels, teachers’ resource centres, school clinics and other facilities and learners including orphans and vulnerable children and their parents, are under no obligation to contribute to the provision, establishment or maintenance of such facilities. The state is further under a legal duty to provide tuition for primary and special education, including all school books, education materials and other related requisites free of charge. We argue that “free of charge” means “at no cost at all”. Therefore learners including orphans and vulnerable children and their parents are under no legal obligation to contribute to above activities. It is thus safe to conclude that in terms of the peremptory provisions of the Supreme law and Education Act, that the provision of primary education is not conditional on the availability of resources. However, once the majority of parents at a parents’ meeting, convened by the school board, decides to establish a school development fund, parents are under a legal duty to pay the contributions to the fund, failing which, the school board may take civil action against the parent. The aims of the SDF are: “to provide, develop and improve reasonable and necessary facilities at schools”. We have argued above, that this is the legal duty of the state in terms of the peremptory provisions of the Constitution and the Education Act. “to uplift and improve educational, sport and cultural activities at schools”. We argue that this aim is in line with a parent’s duty, because if a parent fails to pay the SDF contribution, the learner may be excluded from above activities financed with the SDF contributions (section 25 (12) and not from attending classes. Impact on Orphans and Vulnerable Children Unfortunately orphans and vulnerable children are not excluded from the provisions of the Education Act and its Regulations. Their guardians are obliged to pay the SDF contribution or apply for exemption. In this regard, parents and guardians have a right to information. Therefore principals/school management are obliged: – to provide them with an application for admission to a state school together with an application for exemption to pay SDF contribution, when they apply for admission of a child (emphasis added); – to inform them of the provisions of the Education Act and Regulations; – to assist those in need, to complete the application for exemption; – to correctly inform them of the consequences of failing to pay the SDF contribution (i.e. exclusion of – learner from activities financed with SDF contributions and civil action against them); – to encourage parents and guardians who cannot pay the SDF contribution, to make such contribution in kind. In regard to the issue of payment of SDF contribution, I wish to suggest that school boards should apply the means test when determining the amount parents must pay as SDF contribution I am of the opinion that the rich should subsidize the poor. It is inconceivable how a parent who is a CEO of a company and a parent who is a farm labourer or domestic worker should pay the same amount as SDF contribution. That is unjustifiable; and plainly unfair! Conclusion The right to education is to be construed so that it is “practical and effective”; a simple ‘right’ of access to education facilities is not in itself, enough. I wish to conclude with a quotation from a statement made in January 2003 by Hon. John Mutorwa, then Minister of Basic Education, Sport and Culture. “It will soon become inevitable and unavoidable that, with particular reference to the Constitutional requirement (Article 20 (2)) of the Namibian Constitution, regarding free and compulsory primary education, expenditure with high returns in primary education, must get the lion’s share of the budget” The challenge is on you, the educators to ensure that every financial expenditure shall have the maximum positive impact on the enhancement of access, quality, equity lifelong learning and democracy in the Namibian education system. I thank you!