The influence of international and regional African law on the Constitutional Court’s jurisprudence concerning the child’s right to basic education

Abstract

The right to education is viewed as an empowerment right and emphasises that education prepares and enables children to participate in their communities and to be active rights-holders. The right to education also enables the realisation of other human rights. The article examines the Constitutional Court’s jurisprudence and establishes how and to what extent the Court has engaged and relied on international and African regional law in interpreting and providing scope to the right to basic education as recognised in section 29(1)(a) of the Constitution. Central to this analysis will be the United Nations Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child. Not only is South Africa a party to both these instruments but, as seen from the Constitution itself, international law is recognised as a valuable interpretative source for the Bill of Rights. From the jurisprudence, it is clear that the courts have played a significant role in interpreting the right to basic education and, as a result, there has been an incremental approach utilised providing meaning and scope to the right to basic education. The article engages with how international and African regional law can advance the jurisprudence on the right to basic education. My analysis of the case law highlights a lack of a systematic methodology as to how to use international law and African regional law. International law, I demonstrate, is generally preferred over African regional law in the Court’s jurisprudence. In my view, this trend fails adequately to root the interpretation of the right to basic education within an African framework. I thus demonstrate the limited use of international and African regional law in the court’s jurisprudence and the opportunities such a usage can have to assist in developing the substantive content of the right as well as addressing practical implementation challenges.