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Anuoluwapo Durokifa reflects on recent comments made by Patriotic Alliance leader Gayton McKenzie that illegal foreign children shouldn't be allowed in South African schools and what the law states.
The Universal Declaration of Human Rights (UNDHR), Article 26, states that 'everyone has the right to education'.
Article 4(a) of the UNESCO Convention against Discrimination in Education (CDE) requires signatories "to promote equality of opportunity and treatment in the matter of education and in particular to make primary education compulsory and free." States are also required to make secondary education generally available and accessible. While the UNDHR seems like an aspiration, the CDE provides an obligation on states to provide free and compulsory education without being biased towards the child's parent's or legal guardian's race, colour, sex, language, religion, political or other opinions, national, ethnic or social origin, property, disability, birth or other status.
South Africa has signed but not ratified the Convention against Discrimination in Education. However, the non-ratification status of this treaty does not prevent the country from looking towards it as a guide in interpreting the right to basic education.
'Everyone has right to basic education'
Bringing this back home, Section 29(1) of the Constitution emphasises that "everyone has the right to a basic education…."
It further clarified what everyone meant lest there be no ambiguity. 'Everyone' refers to all people within South Africa's borders.
Section 39 and 42 of the Immigration Act 13 of 2002 outlines the right to basic education is not restricted to citizens. It cuts across both documented and undocumented individuals, asylum seekers or refugees, children of migrants or citizens, and children of legal or illegal foreigners.
Legally, the statement of whether undocumented children have a right to education has also been given credence. In Minister of Home Affairs V Watchenuka, the court surmised that the prohibition of study for migrant children pending the finalisation of their asylum status conflicts with the Bill of Rights of the Constitution.
Inclusive education
In Centre for Child Law and Others v Minister of Basic Education and Others, the court upheld that the admission and funding conditional on learners being documented in public schools to be unconstitutional and re-emphasised that the right to basic education is "unqualified, unconditional and applies to everyone" and can never be limited to "everyone upon the production of a birth certificate or provided they are in the country legally". The court declared the interpretation of Sections 39 and 42 of the Immigration Act to not prohibit the admission into schools nor does it prohibit the provision of basic education to children who are in the country illegally.
The Sustainable Development Goal (SDGs) that South Africa adopted as well also seeks to ensure inclusive and equitable quality education. Goal 4 states "inclusive education for all", and one of the targets is to "eliminate all discrimination in education". This means education without bias, irrespective of whether you are documented or not.
READ | Gayton McKenzie’s remarks on undocumented children at SA schools ‘xenophobic, contravention of law’
Patriotic Alliance leader Gayton McKenzie recently came under fire after he took to social media saying children of illegal foreign nationals shouldn't be allowed in South African schools.
McKenzie's commentary is laced with xenophobic sentiments, which could fuel violence. This is a situation not needed in the country at the moment as there are more pressing socio-economic issues to deal with.
The international human right law guarantees an education for all without discrimination, as does the South African Constitution. Education liberates the intellect making it possible for a progressive and healthy society. Thus, every child deserves an education regardless of the legality of their parents and themselves in South Africa.
In closing, I end with quotes from the great and revered man, Tata Nelson Mandela:
- Dr. Anuoluwapo Durokifa is an academic and a researcher who is passionate about South Africa/Africa’s development and growth. Her research interests include sustainable development, public policy, monitoring and evaluation, gender equality, development and African leadership.
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