RIGHT TO BASIC EDUCATION: INTERNATIONAL OBLIGATIONS AND REGIONAL LEGAL NORMATIVE ACTION IN AFRICA

in African Yearbook of International Law Online / Annuaire Africain de droit international Online
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RIGHT TO BASIC EDUCATION: INTERNATIONAL OBLIGATIONS AND REGIONAL LEGAL NORMATIVE ACTION IN AFRICA

in African Yearbook of International Law Online / Annuaire Africain de droit international Online

References

' Recommendations of the UNESCO/UNICEF Joint Committee on Education, 2 documents 160 EX/9 and Corr., Paris, September 2000, paras. 3 and 4. 2 UNESCO has the constitutional mandate to: "give fresh impulse to popular education and to the spread of culture: By collaborating with Members, at their request, in the development of educational activities; By instituting collaboration among the nations to advance the ideal of equality of educational opportunity without regard to race, sex or any distinctions, economic or social;

By suggesting educational methods best suited to prepare the children of the world for the responsibilities of freedom". (Article 1(2)(b) of the Constitution of UNESCO). 3 The provisions relating to the right to education are contained in Article 26 of the Universal Declaration on Human Rights (1948); Articles 28-30 of the Convention on the Rights of the Child; and Article 10 of the Convention orz the Elimination of All Forms of Discrimination against Women (1979). 4 General Comment No. 13 on the Right to Education (Article 13 of the International Covenant on Economic, Social and Cultural Rights), adopted by the Committee on Economic, Social and Cultural Rights at its twenty-first session in 1999. E/C. 12/1999/10, 2 December 1999, para. 50. 5 See Yves Daudet and Kishore Singh, "The Right to Education: an analysis of UNESCO's standard-setting instruments", UNESCO, Paris 2001. 6 The Convention was adopted by the General Conference of UNESCO on 14 December 1960 at its Eleventh session, held in Paris It came into force on 22 May 1962, and has been ratified by 91 States. 7 The Convention on Technical and Vocational Education (adopted by the General Conference at its Twenty-fifth session on 10 November 1989) also provides that the contracting States "shall work towards the right to equal access to technical and vocational education and towards equality of opportunity to study throughout the educational process".

8 UNESCO's Medium-Term Strategy 2002-2007, (31 C/4, para. 62), UNESCO, Paris. 9 General Comment No. 13 on the right to education, op. cit.

10 The World Declaration on Higher Education for the Twenty first Century which was adopted by the World Conference on Higher Education in the Twenty-first Century: Vision and Action in October 1998, provides in Article 4 § d that "Access to higher education for members of some special target groups, such as indigenous peoples, cultural and linguistic minorities, disadvantaged groups, peoples living under occupation and those who suffer from disabilities, must be actively facilitated, since these groups as collectivities and as individuals may have both experience and talent that can be of great value for the development of societies and nations [...]" The International Commission on Education for the Twenty-first century: The Report of the Commission presented to UNESCO "Learning: The Treasure Within", UNESCO, 1996, p. 118. 12 The World Education Report 2000, "The Right to Education: Towards Education for all Throughout Life", UNESCO Publishing, 2000. '3 UNESCO's Medium-Term Strategy (2002-2007), 31 C/4 (para. 59), UNESCO, Paris (emphasis added).

Communique from the High-Level Group on Education for All First Meeting, UNESCO, Paris, 29-30 October 2001, para. 5. Treaty establishing a Constitution for Europe (Article II-74), Offcial Journal of the European Union (16.12.2004), (http:Heuropa.eu.int/eur-lexAex/LexUriServ/site/en/oj/ 2004/c_310/c_31020041216en00410054.pdf), 11 July 2005. General Comments No. 13 on the right to education (Article 13 of the Covenant), op. cit., para. 22.

17 "The Dakar Framework for Action - Education For All: Meeting Collective Commitments", adopted at the World Education Forum, Dakar, Senegal, 26-28 April 2000, UNESCO, Paris 2000, pp. 7-10. 18 UNESCO's Medium-term Strategy 2002-2007, (31 C/4, Para. 57), UNESCO, Paris. General Comment No. 13 on the right to education, op. cit., paras. 51 and 52. 20 "Millennium Declaration": Resolution 55/2, (para. 19) adopted by the United Nations General Assembly, (AIRES/55/2, 13 September 2000), United Nations, New York.

21 (http://www.nepad.org/2005/files/hsgic.php), 11 July 2005. 22 Article 4 § C of the Convention. Emphasis added. z3 The Report of the Commission presented to UNESCO "Learning: The Treasure Within", op. cit., p. 118.

24 See The World Declaration on Education For All - meeting basic learning needs, in "The Dakar Framework for Action - Education For All: Meeting Collective Commitments", op. cit., p. 76. 25 "The Dakar Framework for Action - Education For All: Meeting Collective Commitments", op. cit., para. 3. zb Ibid., para. 7 (iii). 27 In its Article 26 (2) of the Universal Declaration of Human Rights stipulates that "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". 28 The text of UNESCO's instruments can be consulted on (http://portal.unesco.org/en/ ev.php-URL ID=12024&URL DO=DO TOPIC&URL-SECTION=201.htm1).

29 The Integrated Framework of Action on Education for Peace, Human Rights and Democracy, adopted at the International Conference on Education, Geneva, (October 1994) and endorsed by UNESCO's General Conference in November 1995 3° The importance of basic learning needs is recognized by the International Commission on Education for the Twenty-first century. See Learning: The Treasure Within, op. cit. It is also emphasized in the Framework for Action to Meet Basic Learning Needs, adopted for implementing the World Declaration on Education for All, adopted at the World Conference on Education for All, Jomtien, 1990. See Yves Daudet and Kishore Singh, "The Right to Education: an analysis of UNESCO's standard-setting instruments", op. cit., p. 91. The Recommendation was adopted by the General Conference at its 19`h session in Nairobi, on 26 November 1976. 32 The Declaration was adopted at the Fifth International Conference on Adult Education (14-18 July 1997).

"The Dakar Framework for Action - Education For All: Meeting Collective Commitments", op. cit., para. 7 iv. 34 "According to estimates, the illiteracy rate went down from 49.2 percent to 38.7 percent between 1990 and 2000. But during the same period, the number of absolute illiteracy continued to increase, moving from 173 million to 183 million, with the proportion of women remaining the same at about 60 percent. The objective to be attained would be an illiteracy rate of 19.3 percent in 2015". Meeting the Challenge of Education in Africa: From commitment to action: Contribution to the New Partnership for Africa's Development (NEPAD), July 2002. 3s The International Law of Human Rights in Africa: Basic Documents and Annotated Bibliography, compiled by M. Hamalengwa, C. Flinterman and E.V.O. Dankwa, Martinus Nihoff Publishers, 1988.

36 Ibid.. See also Evelyn A. Ankumah, The African Commission on Human and Peoples' Rights, Martinus Nihoff Publishers, 1996, pp. 148-151. 37 Ibid. 38 The International Law of Human Rights in Africa: Basic Documents and Annotated Bibliography, op. cit. 39 The text of the Resolution is contained in the Statement by the African Union at the 615` Session of the Commission on Human Rights, (Geneva March-April 2005) on agenda item 10: economic, Social and Cultural Rights, Geneva March-April 2005 (original text in French).

ao Ibid., (translation by the author). Emphasis added. Article 11 (2) of the Charter relates to the aims of education and provides that: "the education of the child shall be directed to: (a) the promotion and development of the child's personality, talents and mental and physical abilities to their fullest potential; (b) fostering respect for human rights and fundamental freedoms with particular reference to those set out in the provisions of various African instruments on human and peoples' rights and international human rights declarations and conventions; (c) the preservation and strengthening of positive African morals, traditional values and cultures;

(d) the preparation of the child for responsible life in a free society, in the spirit of understanding tolerance, dialogue, mutual respect and friendship among all peoples ethnic, tribal and religious groups; (e) the preservation of national independence and territorial integrity; (f) the promotion and achievements of African Unity and Solidarity" See Collection of International Instruments and Other legal texts Concerning Refugees and Displaced Persons, Volume II - Regional Instruments, Published by the High Commission for Refugees, Geneva 1995, pp. 65-78. 4z Ibid. Article 11 § e, p. 69. 43 Article 18 of the Charter provides that: The State shall have the duty to assist the family which is the custodian of morals and traditional values recognized by the community. The State shall ensure the elimination of every discrimination against women and also ensure the protection of the rights of the woman and the child as stipulated in international declarations and conventions. Ibid., p. 19. 44 The Framework was adopted by the Regional Conference on Education for All for Sub- Saharan Africa in Johannesburg (South Africa) in December 1999. See "The Dakar Framework for Action - Education For All: Meeting Collective Commitments", op. cit., pp. 24-34.

as Ibid., p. 26. ab Ibid., see part 4.2 on "Basic Strategies" of the Framework. 47 Ibid., see part 4.2.1 on "A review and harmonisation of existing policies and legislation'' of the Framework, p. 29. 48 The importance of early childhood education is recognized in regional level instruments in Africa. Article 18 of the African Charter on Human and Peoples' Rights provides that "The State shall have the duty to assist the family which is the custodian of morals and traditional values recognized by the community". Similarly, Article 11 (2) of the African Charter on the Rights and Welfare of the Child provides that: "the education of the child shall be directed to (...) the promotion and development of the child's personality, talents and mental and physical abilities to their fullest potential. 49 "The Dakar Framework for Action - Education For All: Meeting Collective Commitments", op. cit., pp. 24-34.

50 See Reference Document: Round Table on Constitutional and Legal Bases of the Right to Education as a Fundamental Human Right, organized by UNESCO during MINEDAF VIII, 2-6 December 2002, UNESCO, Paris, November 2002, pp. 10-11. s� Ibid. sz The Right to Education: An analysis of UNESCO's Standard-setting Instruments, Yves Daudet, Kishore Singh, op. cit., pp. 42-48.

s3 UNESCO's standard setting instruments, UNESCO, Paris, 1986 (General introduction, p. xiv). 54 For the text of the Convention, Yves Daudet, Kishore Singh, "The Right to Education: an analysis of UNESCO's standard-setting instruments", op. cit., pp. 71-78. 55 Examination of the reports and responses received in the sixth consultation of Member States on the implementation of the Convention and Recommendation against Discrimination in Education, 156 EX/21, 17 March 1999, UNESCO, Paris, paras. 9-16, and Sixth consultation of Member States on the implementation of the Convention and Recommendation against Discrimination in Education, 30 C/29, 24 September 1999.

56 Decision 6.2 taken by the Executive Board at its 165`h meeting in November 2002 (165 EX/Decision 6.2), UNESCO, Paris. 57 See Guidelines for the Preparation of Reports on the Implementation of the Convention against Discrimination in Education (1960)/Recommendation against Discrimination in Education (1960), Document 171 EX/22, UNESCO, Paris.

58 See Meeting organized in cooperation with UNESCO on the follow up to the Committees day of general discussion on the right to education (art. 13 and 14 of the Covenant) and the World Education Forum (Dakar, April 2000), in Report on the Twenty-Eighth and Twenty- Ninth Sessions of the Committee on Economic, Social and Cultural Rights - Economic and Social Council, Official Records, 2003 Supplement No. 2, United Nations, New York and Geneva, 2003 ( E/2003/22 EC.12/2002/13, pp. 75-84). 59 See Decision 5.8 taken by UNESCO's Executive Board in November 2003 (165 EX/Decision 5.8). The Joint Expert Group was established by Decision 5.4 adopted by UNESCO's Executive Board at its 162 nd session in October 2001. 60 The Report by the Joint Expert Group UNESCO (CR)/ECOSOC (CESCR) on the Monitoring of the Right to Education, document 167 EX/CR.2, UNESCO, Paris, May 2003. Paris, 21 August 2003.

61 Fatsah Ouguergouz, The African Charter on Human and Peoples' Rights: A Comparative Agenda for Human Dignity and Sustainable Democracy, Kluwer International Law, The Hague (2003), p. 190.

62 What the Commission said was that "The government made it known that there exists in the country an institute of national languages, for over ten years now, and that this institute teaches those languages. However, a persisting problem is the fact that many of these languages are exclusively spoken in small parts of the country and that they are not written. Communication 54/91 alleges the violation of linguistic rights but does not provide ant further evidence as to how the government denies the black groups the right to speak their own languages. Information available to the Commission does not provide it a sufficient basis to determine if there has been violation of Article 17." Ibid. 63 Cited in "The African Charter on Human and Peoples' Rights: the System in Practice 1986-2000)" by Malcom D. Evans and Rachel Murrey, Cambridge University Press 2000, p. 397.

64 For instance, the Constitution of Equatorial Guinea provides in its Article 46 that "The general, basic state of education, in all its forms, is compulsory and free." Similarly, the Constitution of Ghana provides that "Basic education shall be free, compulsory and available to all." (Article 25 (l.a)). The Constitution of Chad provides in its Article 35 that "Public education is secular and free. [...] Basic education is obligatory"

65 As regards the constitutional provisions, see Heyns Christof (ed.), Human Rights Law in Africa 1996, Kluwer Law International, 1996. 66 (http://www.kenyaconstitution.org/dloads/Draft%20Bill %202004%20dated %20 l5th% 20March%202004%20(23rd%20March%202004)-veri.doc)

For the text of the Dakar Framework For Action, see Yves Daudet, Kishore Singh, "The Right to Education: an analysis of UNESCO's standard-setting instruments", op. cit., pp. 80-87. 68 Final Report, World Education Forum, Dakar, Senegal 26-28 April 2000, UNESCO, 2000, p. 8. 69 Ibid. This Act provides that: "Every child shall be entitled to education the provision of which shall be the responsibility of the Government and the parents. Every child shall be entitled to free basic education, which shall be compulsory in accordance with Article 28 of the United Nations Convention on the Rights of the Child. Every child shall have a right to religious education subject to appropriate parental guidance.

The Minister shall make regulations giving effect to the rights of children from minority communities to give fulfilment to their culture and to practice their own language or religion" Country Report: The Development of Education in Nigeria - UNESCO Forty-Seventh Session of the International Conference on Education (ICE), Geneva, 8-11 September 2004, pp. 58-75.

Meeting the Challenge of Education in Africa: From Commitment to Action: Contribution to the New Partnership for Africa's Development (NEPAD), July 2002. Address by Mr Koichiro Matsuura, Director-General of UNESCO at the first meeting of the High-Level Group on Education for All, UNESCO, Paris, October 2001.

The Commission noted with interest the statement on Poverty and the International Covenant on Economic, Social and Cultural Rights adopted by the Committee on Economic, Social and Cultural Rights (CESCR) on 4 May 2001, aimed at encouraging the integration of human rights into poverty eradication policies by outlining how human rights generally, and the International Covenant in particular, can empower the poor and enhance anti-poverty strategies. Education for All: Meeting Our Collective Commitments - Expanded commentary on the Dakar Framework of Action, prepared by the World Education Forum Drafting Committee, Paris, 23 May 2000, para. 26.

Approved Programme and Budget for 2002-2003 (31 C/5, para. 01120), UNESCO, Paris. 77 UNESCO's Medium-Term Strategy 2002-2007, (31C/4, para. 62), UNESCO, Paris.

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