SOUTH AFRICAN HUMAN RIGHTS COMMISSION Report of the National Investigative Hearing into the Impact of Protest-related Action on the Right to a Basic Education in South Africa Presentation to Portfolio Committee on Basic Education 16 May 2017

Overview of presentation 1. Mandate of the Commission 2. Background to the National Hearing 3. Purpose of the National Hearing 4. Approach to the National Hearing 5. Stakeholder participation at the National Hearing 6. Main areas of inquiry and submissions made 7. Findings 8. Recommendations 9. Timelines for implementation of recommendations 10. Current status and way forward

Mandate of the Commission Section 184 of the Constitution of the Republic of South Africa: The SAHRC must: (a) Promote respect for human rights and a culture of human rights; (b) Promote the protection, development and attainment of human rights; (c) Monitor and assess the observance of human rights in the Republic The South African Human Rights Commission Act, 40 of 2013 provides the enabling framework for the exercise of the Commission’s mandate and powers.

Background to the National Hearing Verfasser · weitere Angaben Thema der Präsentation · Datum Background to the National Hearing The Commission resolved to host a National Hearing due to the increase in protest-related action impacting on the right to a basic education in South Africa. While the Commission recognised the right to assemble, peacefully and unarmed (“right to protest”), it was deeply concerned about the impact of protest-related action on other rights, particularly the right of children to a basic education.

Background to the National Hearing The National Hearing followed on the events in Vuwani, Limpopo in 2016, where it was reported that: 29 schools were burnt (affecting 10 233 learners); and 102 schools disrupted (affecting 52 827 learners) The devastating impact on learners and the cost for restoring damage to the infrastructure was estimated to be millions of Rand.

Background to the National Hearing Over the years the Commission, through its provincial offices, has noted incidents of protest-related action and its impact on the right to a basic education. In some instances, the Commission was able to intervene to ensure the protection of rights (in line with its protection mandate). For example, between 2014 and 2016 protest-related action impacting on the right to a basic education was reported in the Eastern Cape, Gauteng, North West, and the Northern Cape. Protest-related action impacting right to a basic education was gaining a “national character”.

Background to the National Hearing School / Area Province Year Impact Overton Primary School Eastern Cape (protests impacting on schooling reported in 2013-15) 2016 350 learners were prevented from attending school. Parents were demanding construction of a school building Ekhetlheng Primary School Gauteng Damage to a classroom Malamulele Limpopo 2014 5 schools set alight 2015 150 schools were disrupted, impacting 179 000 learners

Background to the National Hearing School / Area Province Year Impact Zeerust North West (other protests impacting on schooling reported in 2013, 2015-16) 2014 Learners were prevented from attending school due to a protest regarding access to water. Matriculants examination preparation was impacted John Taolo Gaetsewe District Northern Cape (other protests impacting schooling reported in 2012, 2015) Learners were prevented from attending school for 3 months due to a protest regarding upgrading of a gravel road. 54 schools were targeted and thousands of learners impacted

Background to the National Hearing Broadly, the impact on children includes: 1. Inability to attend school; 2. Inability to prepare for and write examinations (especially matriculating learners); 3. Interruption in their education is particularly difficult for children from poor or marginalised sections of society; and 4. Inability to access school feeding programmes.

Purpose of the National Hearing The National Hearing was convened with a view to: Determine the extent of the phenomenon of protest-related action impacting on the right to a basic education Seeking solutions through generating a range of recommendations towards ensuring that future protest-related action does not disrupt and thereby deny the right to a basic education

Approach to the National Hearing The National Hearing was convened under the South African Human Rights Commission Act as well as the Commission’s Complaints Handling Procedures A hearing is a formal investigation conducted by the Commission Although a formal investigation, the Hearing process was inquisitorial in nature A panel was appointed to preside over the Hearing, consisting of Commissioner L Mokate (as Chair of the Panel) Commissioner D Titus Dr V Gounden (Executive Director of the African Centre for Constructive Resolution of Disputes) Prof A Skelton (Director of Centre for Child Law, UNESCO Chair: Education Law in Africa and member of the United Nations Committee on the Rights of the Child) Dr C Madiba (Education Specialist and former lecturer at the University of the Witwatersrand)

Approach to the National Hearing Stakeholders were invited to answer questions and make submissions The Panel examined and evaluated the evidence and submissions before it and made findings and recommendations

Stakeholder participation at the National Hearing The Department of Basic Education (DBE) Provincial Departments of Education (PDE) The Department of Cooperative Governance and Traditional Affairs (CoGTA) The South African Police Service (SAPS) Equal Education National Association of School Governing Bodies (NASGB) Basic Education for All (BEFA) National Professional Teachers’ Organisation of South Africa (NAPTOSA) Principals of Secondary Schools in Limpopo, Mpumalanga, Gauteng and the Eastern Cape Community leaders from Eastern Cape, Limpopo, Mpumalanga and North West

Main areas of inquiry and submissions made Detailed, specific questions were addressed to stakeholders, forming the basis of the submissions received. Stakeholders were also invited to prepare any further submissions of relevance

Main areas of inquiry and submissions made MAIN AREAS OF INVESTIGATION/INQUIRY 1 Measures in place to ensure non-interference with basic education during protect action 2 Data on the extent to which protest-related action impacted basic education in the last 5 years 3 Monitoring mechanisms in place 4 Community awareness measures in place 5 Training for SGBs on the matter 6 Early warning measures 7 Partnerships with other entities

Main areas of inquiry and submissions made MAIN AREAS OF INVESTIGATION/INQUIRY 8 Measures in place to protect schools and effectiveness of such measures 9 Response times 10 Community awareness measures in place 11 Examples of success stories in dealing with matter 12 Policies on protection of school buildings and access to schools 13 Information on any existing studies on impact of protest-related actions on basic education

Main areas of inquiry and submissions made MAIN AREAS OF INVESTIGATION/INQUIRY 14 Raising awareness of members 15 Impact of protest actions on budgets 16 Why education is targeted 17 Recommendations on what can be done to improve state of affairs

Findings The main findings of the National Hearing were: The DBE and the SAPS were slow to respond and lacked uniform policy or approach in dealing with such incidents The lack of proper and efficient communication between authorities and affected communities has resulted in communities seeking ways to draw attention to their plight and targeting schools, even though by targeting schools children’s right to a basic education is undermined

Findings The responsibility to ensure the safety of learners, educators and schools does not rest with a single department, and it was unclear which department took the lead in cases where protest-related action targeted schools In some instances, the breakdown of leadership at the local government level had a negative effect on efforts to address problems that arise thereby undermining the right to a basic education No evidence of adequate early warning systems could be established

Findings No reported action had been taken against persons who deliberately interfere with the right to a basic education There was a slow or inadequate response by government departments to incidents that affect schools, which in turn affects the recovery process There is a need for government departments, especially at the local level, to better engage with communities on important community matters. People should be encouraged people to find new ways of expressing their concerns so that their actions do not result in a negative impact on other rights e.g. the right to a basic education

Recommendations The Commission made the following recommendations: The DBE should constitute an interdepartmental National Public Protest Response Team (National Response Team) The National Response Team should include relevant government departments; particularly, SAPS and CoGTA and other relevant stakeholders

Recommendations The National Response Team should develop Guidelines that set out clearly the roles and responsibilities of the various government departments within the context of school disruptions establish early warning systems and responses to be taken in the event of school disruptions due to protest action

Recommendations The National Response Team should share its reports and information with the National Planning Commission so that the impact of public protests on the realisation of the right to a basic education can be considered in the on-going review of the NDP The National Response Team should consider Section 3 of the South African Schools Act (SASA), and determine whether the criminal provisions, contained therein, are sufficient to be used to prosecute persons engaged in public protests who deny learners access to education

Recommendations The National Response Team should make a determination as to whether the statutory criminal sanctions are a sufficient deterrent. Should it be determined by the National Response Team that amendments to SASA are necessary; the DBE should initiate the process to bring about the necessary amendments to the legislation The National Response Team should develop a community awareness programme that can be rolled out at provincial level

Recommendations 8. Community awareness programmes should articulate that the Constitution guarantees the right to protest where this is done lawfully and peacefully. Any protest action that falls outside of this, such as damaging or destroying schools and denying access to education during public protests is not constitutionally protected. In fact, in many instances, these actions may amount to a criminal offence.

Recommendations The structure of the National Response Team is to be replicated at provincial level and, where necessary, at local level Provincial and Local Response Teams can tailor the Guidelines (as developed under recommendation 3 of the Report) to local conditions The DBE to provide a report within 9 months (15 June 2017) on the activities of the National Response Team. The report should include the Guidelines developed and set out the progress that has been made in implementing these recommendations at the national and provincial level

Recommendations The DBE to provide a further report on the activities of the National Response Team within one (1) year (by 15 June 2018) The Commission is to determine whether further progress reports are necessary

Timelines for implementation of recommendations The Commission’s recommendations were time bound: Parties were requested to indicate, in writing, within 3 months of issuance of the National Hearing Report (15 December 2016) whether or not they agreed with the recommendations No objections were received The DBE is to provide its first report on activities of the National Response Team and implementation of the Hearing Report’s recommendations by 15 June 2017 The DBE is to provide a further progress report at end of 15 June 2018

Current status and way forward New Commissioners assumed office in January 2017 The Commission has committed itself to ensuring past recommendations are implemented – During 2015-16 the Commission developed a repository based on investigative hearings and report recommendations made since 2009, with a view to strengthening the monitoring of implementation of the reports and recommendations. The repository is updated with all newly issued recommendations, including the Report on Protest Related Action and Basic Education The Commission has also sent correspondence to the DBE requesting a progress update on the implementation of the recommendations as well as a reminder of its Report on implementation, due on 15 June 2017 The Commission appeals to the Committee for its assistance in exercising oversight over the implementation of the Commission’s recommendations

The South African Human Rights Commission www.sahrc.org.za @sahrcommission THANK YOU