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Published online by Cambridge University Press: 02 November 2017
Swaziland's Constitution of 2005 promised that every Swazi child would have the right to free primary school education, within three years of the constitution coming into operation. That date having passed, a civil society group took the matter to court. The case initially fared well, but in a subsequent application for performance on the original order, the court balked at making an immediately enforceable order, citing lack of resources as an obstacle. That approach was upheld by the Supreme Court. This article examines the courts’ pronouncements within the Swazi constitutional context. It discusses judicial deference, avoidance and pragmatism. Swaziland's free primary education judgments are compared with those of courts in South Africa. The remedial orders of those courts demonstrate that, although educational goods and services cannot be delivered overnight, creativity and oversight by the courts can ensure that an immediate start is made towards delivering on the constitutional promise.
Professor of law, Director of the Centre for Child Law, UNESCO; chair, Education Law in Africa, University of Pretoria.
Associate professor, Thabo Mbeki African Leadership Institute, University of South Africa.
1 Committee on Economic, Social and Cultural Rights, general comment no 13, “The right to education” (art 13 of the International Covenant on Economic, Social and Cultural Rights), 21st session, 1999, UN doc E/C 12/1999/10; UN doc HRI/GEN/1/Rev.6 (2003) at 70, para 1; Veriava, F and Coomans, F “The right to education” in Brand, D and Heyns, C (eds) Socio-Economic Rights in South Africa (2005, Pretoria University Law Press) 57Google Scholar; Kamga, SA Djoyou “Realising the right to primary education in Cameroon” (2003) 11 African Human Rights Law Journal 171Google Scholar.
2 Adopted 10 December 1948, art 26.
3 General Assembly res 2200A (XXI) of 16 December 1966, entered into force 3 January 1976, arts 13(2)(a) and 14.
4 General Assembly res 44/25 of 20 November 1989, entered into force 2 September 1990, art 28(1).
5 Art 4(a).
6 Adopted 27 June 1981 by the Organisation of African Unity Assembly (OAU), OAU doc CAB/LEG/67/3 Rev5 (1982) 21, art 17.
7 OAU doc CAB/LEG/24.9/49 (1990), entered into force 29 November 1999, art 11.
8 Teaching and Learning: Achieving Quality for All (UNESCO Education for All global monitoring report 2013–14) at 5, available at: <http://unesdoc.unesco.org/images/0022/002266/226662e.pdf> (last accessed 7 September 2017).
9 K Singh “Justiciability of the right to education” (report of the special rapporteur on the right to education, 2013) UN GA A/HRC/23/35 at 3.
10 International Commission of Jurists Courts and the Legal Enforcement of Economic, Social and Cultural Rights: Comparative Experience of Justiciability (2008, International Commission of Jurists) at 6Google Scholar.
11 2005 Constitution, sec 29(6).
12 Ratified by Swaziland on 26 March 2004.
13 Ratified by Swaziland on 7 September 1995.
14 Ratified by Swaziland on 15 September 1995.
15 Signed by Swaziland on 29 May 1992, but not yet ratified.
16 Swaziland National Ex-Miners Workers Association and Another v The Minister of Education and Others [2009] civil case no 335/09 (16 March 2009).
17 Swaziland National Ex-Miners Workers Association v The Minister of Education and Others [2010] civil case no 2168/09 (19 January 2010).
18 Swaziland National Ex-Miners Workers Association v The Minister of Education and Others [2010] civil appeal case no 2/10 (28 May 2010), para 12.
19 For example, under sec 98(1) of the Independence Constitution: “The holder of the office of Chief Justice or any office of puisne judge of the High Court shall be appointed by the King, acting in accordance with the advice of the Judicial Service Commission”. The Senate comprised 12 members, six of whom were elected by the House of Assembly, the remaining six being appointed by the king as he wished (Independence Constitution, sec 38(4)).
20 See Ray Gwebu and Lucky Nhlanhla Bhembe v The King criminal appeal nos 19 and 20/2002, AHRLR 229 (SwCA 2002).
21 Proc by His Majesty King Sobhuza II to the nation, 12 April 1973, available at: <https://www.eisa.org.za/pdf/swa1973proclamation.pdf> (last accessed 28 July 2017).
22 Id, para (c).
23 Id, para 3.
24 Maseko, T “The drafting of the Constitution of Swaziland, 2005” (2008) African Human Rights Law Journal 312 at 316Google Scholar.
25 Id at 324–25.
26 M Langwenya “Swaziland: Justice sector and the rule of law” (March 2013) AfriMAP and Open Society Initiative for Southern Africa at 35, available at: <http://www.osisa.org/sites/default/files/afrimap_swz_justice_sector_main_text_web.pdf> (last accessed 28 July 2017).
27 2005 Constitution, sec 64(3).
28 Id, sec 66(3) and (4).
29 Fombad, CM “Challenges to constitutionalism and constitutional rights in Africa and the enabling role of political parties: Lessons and perspectives from southern Africa” (2007) 55/1 The American Journal of Comparative Law 1 at 14CrossRefGoogle Scholar.
30 The king appoints members of the Kings Advisory Council (sec 13), the prime minister and Cabinet (sec 67), members of the Judicial Service Commission (sec 159), Commission on Human Rights and Public Administration (sec 163(3)), members of the service commissions (sec 173(3)) and chiefs (sec 233(2)).
31 2005 Constitution, sec 151(8) provides: “Notwithstanding subsection (2), the High Court has no original jurisdiction or appellate jurisdiction in matters relating to the office of iNgwenyama [chief]; the office of iNdlovukazi [the Queen Mother]; the authorization of a person to perform the functions of the Regent in terms of section 8; the appointment, revocation and suspension of a Chief; the composition of the Swazi National Council, the appointment and revocation of appointment of the Council and the procedure of the Council; and the libutfo [regimental] system, which matters shall continue to be governed by Swazi law and custom.”
32 Id, sec 64.
33 Id, sec 64(3) and (4).
34 Id, sec 228(1) and (2).
35 Gumedze, S “Human rights and the rule of law in Swaziland” (2005) African Human Rights Law Journal 271 at 272Google Scholar.
36 ICJ “Justice locked out: Swaziland rule of law crisis” (international fact finding mission report 2016) at 5.
37 See UN Human Rights Council “ICJ oral intervention on the adoption of the outcome document of the universal periodic review of Swaziland” (15 March 2012), available at: <http://icj.wpengine.netdna-cdn.com/wp-content/uploads/2012/06/Swaziland-adoption-UPR-advocacy-2012.pdf> (last accessed 28 July 2017).
38 ICJ “Justice locked out”, above at note 36 at 11.
39 Ibid.
40 Id at 8.
41 Langwenya “Swaziland: Justice sector”, above at note 26 at 91.
42 Chief Mtfuso II (formerly known as Nkenke Dlamini) and Others v Swaziland Government (NULL) [2000] SZHC 82 (5 September 2000). For more on this case, see: <http://www.swazilii.org/sz/judgment/supreme-court/2000/22-0> (last accessed 28 July 2017).
43 Ibid.
44 The report of the ICJ / Centre for the Independence of Judges and Lawyers “Swaziland: Fact-finding mission to the Kingdom of Swaziland” (10 June 2003) at 14–15, cited in Gumedze “Human rights and the rule”, above at note 35 at 275.
45 Id generally.
46 Langwenya “Swaziland: Justice sector”, above at note 26 at 91.
47 He was a member of the Ngwane National Liberatory Congress.
48 The declaration was issued under sec 9(1)(g) of the Immigration Act 32 of 1964, published in (1972) 65 Government Gazette, as quoted in Maseko “The drafting of the Constitution”, above at note 24 at 320.
49 Bhekindlela Thomas Ngwenya v The Deputy Prime Minister and the Chief Immigration Officer 1970–76 SLR (HC) 88. For further analysis of this case, see Maseko, ibid.
50 Immigration (Amendment) Act 22 of 1972.
51 Bhekindlela Thomas Ngwenya, above at note 49 at 119.
52 Maseko “The drafting of the Constitution”, above at note 24 at 313.
53 Gumedze “Human rights and the rule”, above at note 35 at 272.
54 See 2005 Constitution, secs 56–63.
55 J Rogers “A case for judicial enforcement of positive socio-economic rights: Strong-weak review, the right to free primary education and the High Court of Swaziland” (2010, LLM long thesis, Central European University) at 25.
56 Swaziland National Ex-Miners Workers Association (2010 appeal), above at note 18.
57 2005 Constitution, sec 35(1) states that, if any person alleges that a right in the Bill of Rights has been or will be contravened, that person or a member of group to which that person belongs may take a case to the High Court. Child Rights International Network (CRIN) expresses the view that the Supreme Court has not yet confirmed the question of standing without “victim” status; see CRIN “Access to justice for children: Swaziland” (2015), available at: <https://www.crin.org/sites/default/files/swaziland_access_to_justice_-_updated_sep_2015.pdf> (last accessed 28 July 2017). However, the Supreme Court judgment in Swaziland National Ex-Miners Workers Association made no adverse findings in relation to standing.
58 2005 Constitution, sec 60(8) is a principle of state policy and, as such, non-justiciable.
59 Swaziland National Ex-Miners Workers Association (2009), above at note 16 at 16.
60 Id at 8.
61 Id at 4.
62 Ibid.
63 Id at 9.
64 Id at 22.
65 Id at 17.
66 Id at 27–28.
67 For a detailed discussion of the judgment, see Rogers “A case for judicial enforcement”, above at note 55.
68 For a discussion of the case and an evaluation of its remedy, see ibid.
69 Swaziland National Ex-Miners Workers Association (2010), above at note 17.
70 Id, para 52.
71 Id, para 17.
72 Id, para 5.
73 Id, para 43.
74 Swaziland National Ex-Miners Workers Association (2009), above at note 16.
75 Swaziland National Ex-Miners Workers Association (2010), above at note 17, para 52.
76 Parekh, R “Lessons from litigating universal primary education in Swaziland” (2013) 17/2 Interights Bulletin 83 at 83Google Scholar.
77 Swaziland National Ex-Miners Workers Association (2010 appeal), above at note 18.
78 Id, paras 16 and 18.
79 Id, para 21.
80 Id, para 24.
81 Id, paras 16 and 18.
82 Brand, D “Judicial deference and democracy in socio-economic rights cases in South Africa” (2011) Stellenbosch Law Review 614Google Scholar; McLean, K “Towards a framework for understanding constitutional deference” (2010) 25 Southern African Public Law 445Google Scholar; Kamga, SA Djoyou and Haleba, S “Can economic growth translate into access to rights? Challenges faced by institutions in South Africa in ensuring that growth leads to better living standards” (2012) 17/9 Sur International Journal on Human Rights 82 at 92Google Scholar.
83 O'Regan, K “Check and balances: Reflections on the development of the doctrine of separation of powers under the South African Constitution” (2005) 8/1 Potchefstroom Electronic Law Journal 120Google Scholar.
84 Djoyou Kamga and Haleba “Can economic growth”, above at note 82 at 92.
85 Brand “Judicial deference”, above at note 82 at 617.
86 Prins v President of the Cape Law Society of the Cape of Good Hope (2002) 1 SACR 431 (CC).
87 Langa, P “Transformative constitutionalism” (2006) 17/3 Stellenbosch Law Review 351 at 357–58Google Scholar.
88 Premier Mpumulanga v Executive Committee of State-Aided Schools, Eastern Transvaal 1999 (2) SA 91(CC).
89 Liebenberg, S “Remedial principles and meaningful engagement in education rights disputes” (2016) 19 Potchefstroom Electronic Law Journal 1CrossRefGoogle Scholar, available at: <http://dspace.nwu.ac.za/bitstream/handle/10394/18060/1%20Liebenberg.pdf?sequence=1&isAllowed=y> (last accessed 28 July 2017).
90 Dugard, J “Courts and structural poverty in South Africa: To what extent has the Constitutional Court expanded access and remedies to the poor” in Maldonado, DB (ed) Constitutionalism of the Global South: The Activist Tribunals of India, South Africa, and Colombia (2013, Cambridge University Press) 293Google Scholar. See also Djoyou Kamga and Haleba “Can economic growth”, above at note 82 at 93, where the authors describe judicial avoidance as “adjudicate questions that call on them to check on other branches of government and hold them accountable for their actions”.
91 Government of the Republic of South Africa v Grootboom and Others (2001) (1) SA 46 (CC); Minister of Health v Treatment Action Campaign (2002) 5 SA 721 (CC).
92 Roach, K “The challenges of crafting remedies for violation of socio-economic rights” in Langford, M (ed) Social Rights Jurisprudence: Emerging Trends in Comparative Constitutional Law (2008, Cambridge University Press) 46 at 58Google Scholar.
93 Gumedze “Human rights and the rule”, above at note 35; Langwenya “Swaziland: Justice sector”, above at note 26 at 9.
94 Singer, JW “Property and coercion in federal Indian law: The conflict between critical and complacent pragmatism” (1990) 63 Southern California Law Review 1821 at 1822Google Scholar; Easterbrook, FH “Originalism and pragmatism: Pragmatism's role in interpretation” (2008) 31 Harvard Journal of Law and Public Policy 901Google Scholar.
95 Parekh “Lessons from litigating”, above at note 76 at 84.
96 ICESCR, art 2(1).
97 UNCESCR general comment no 3: “The nature of states parties’ obligations” (the Covenant, art 2, para 1) at 10, UN doc E/1991/23 (14 December 1990).
98 For more on the minimum core obligation, see ibid. Also see Bilchitz, D “Towards a reasonable approach to the minimum core: Laying the foundations for future socioeconomic rights jurisprudence” (2003) 19 South African Journal on Human Rights 1Google Scholar. Liebenberg, S Socio-Economic Rights: Adjudication Under a Transformative Constitution (2010, Juta and Company Pty Ltd) 163Google Scholar.
99 ICESCR, art 13.
100 UNCESCR general comment no 13 at 6(b)(iii) and 1.
101 Id at (2)(a), para 9.
102 2005 Constitution, sec 238(2) and (4).
103 General comment no 3, above at note 97, para 10.
104 Swaziland National Ex-Miners Workers Association (2010 appeal), above at note 18.
105 See for example Minister of Health and Others v Treatment Action Campaign and Others (no 2) 2002 (5) SA 721 (CC); Rail Commuters Action Group and Others v Transnet Ltd t/a Metrorail and Others 2005 (2) SA 359 (CC); City of Johannesburg Metropole Municipality v Blue Moonlight Properties 39 (Pty) Ltd and Another 2012 (2) SA 104 (CC).
106 See ACHPR, art 17 and ACRWC, art 11.
107 Suit no ECW/CCJ/APP/0808 delivered on 27 October 2009 (unreported).
108 Nigerian Child's Rights Act of 2003, sec 15; Compulsory, Free Universal Basic Education Act of 2004, sec 2.
109 Socio-Economic Rights Accountability Project, above at note 107, para 28. Also Parekh “Lessons from litigating”, above at note 76.
110 Comm 003/2012, decision handed down on 31 May 2015.
111 The letter, dated 26 July 2016, is available at: <http://www.acerwc.org/open-letter-to-h-e-macky-sall-president-of-senegal/> (last accessed 29 August 2017). Unfortunately it cannot be said that the ECOWAS judgment is also having such a positive effect; a UNESCO report Education for All 2000–2015: Achievements and Challenges (Education for All global monitoring report 2015) reported that the rate of children in Nigeria not attending school did not improve between 1999 and 2012, despite its GNP per capita improving during that period. The study is available at: <http://unesdoc.unesco.org/images/0023/002322/232205e.pdf> (last accessed 1 September 2017). UNICEF sets the number of children in Nigeria not attending school at 10.5 million; see UNICEF Nigeria “Insecurity threatens gains in girls’ education” (15 June 2014), available at: <https://www.unicef.org/nigeria/education_8480.html> (last accessed 31 August 2017).
112 South African Constitution, sec 172(1)(b).
113 Fose v Minister of Safety and Security 1997 3 SA 786 (CC), para 69.
114 K Roach and G Budlender “Mandatory relief and supervisory jurisdiction: When is it appropriate, just and equitable?” (2005) 5 South African Law Journal 325.
115 However the South Africa Schools Act 84 of 1996 provides for compulsory education. That, together with the norms and standards for school fees and a “fee free schools” policy ensure that no child in South Africa is deprived of education due to an inability to pay, and that parents who have sufficient income pay school fees in government schools.
116 Note, however, that art 11(3)(a) enjoins state parties to provide “free and compulsory basic education”.
117 South Africa has separate Ministries of Basic Education and Higher Education. The former deals with all school education while the later deals with further education and training, from tenth grade vocational training to post-matric education at universities and technical colleges.
118 White Paper on Education and Training (1995). See also Phillips v Manser [1999] 1 All SA 198 (SE) 217. See, however, R Malherbe “Education rights” in T Boezaart (ed) Child Law in South Africa (2009, Juta) 407 who argues that it may be better to define basic education according to the World Declaration on Education for All.
119 Sec 26(1) provides everyone “the right to have access to adequate housing” and sec 27(1) provides the “right to have access to (a) health services, including reproductive health care services; (b) sufficient food and water; and social security including, if they are unable to support themselves and their dependents, appropriate social assistance”.
120 See South African Constitution 1996, secs 26(2) and 27(2).
121 The Governing Body of the Juma Musjid Primary School and Another v Essay NO and Others (Centre for Child Law and another as amici curiae) [2011] 7 BCLR 651 (CC), para 37.
122 Section 27 v Minister of Education 2013 (3) SA 40 (GNP); Basic Education for All and Others v Minister of Basic Education and Others (23949/14) [2014] ZAGPPHC 251, 2014 (4) SA 274 (GP), [2014] 3 All SA 56 (GP), 2014 (9) BCLR 1039 (GP) (5 May 2014); The Minister of Basic Education v Basic Education for All (20793/2014) [2015] ZASCA 198 (2 December 2015).
123 Centre for Child Law and Others v Minister for Education and Others 2013 (3) SA 183 (ECG); Linkside and Others v Minister of Basic Education and Others [2014] ZAECGHC 111 (17 December 2014) (Linkside I); Linkside and Others v Minister of Basic Education and Others [2015] ZAECGHC 36 (26 January 2015) (Linkside II).
124 Madzodzo and Others v Minister of Basic Education 2014 (3) SA 441 (ECM).
125 Tripartite Steering Committee and Another v Minister of Basic Education and Others 2015 (5) SA 107 (ECG).
126 Madzodzo, above at note 124, para 35.
127 Id, paras 36 and 37.
128 Id, para 41(5).
129 This court order was handed down (by agreement) on 16 January 2016. At the time of writing in August 2017, this process is ongoing, under the supervision of the court.
130 Tripartite Steering Committee, above at note 125.
131 Linkside I, above at note 123; Linkside II, above at note 123.
132 The Minister of Basic Education v Basic Education for All, above at note 122.
133 Section 27 v Minister for Education, above at note 122, paras 10 and 11.
134 Id generally.
135 The Minister of Basic Education v Basic Education for All, above at note 122, para 13.
136 Id, para 53 (3.1, 2, 3 and 4).
137 Ibid.
138 Id, para 53.
139 Roach and Budlender “Mandatory relief”, above at note 114.
140 Id at 333–34. See also Ebadolahi, M “Using structural interdicts and the South African Human Rights Commission to achieve judicial enforcement of economic and social rights in South Africa” (2008) 83 New York University Law Review 1565Google Scholar.
141 “Free primary education, at last” (29 January 2010) IRIN, available at: <http://www.irinnews.org/news/2010/01/29/free-primary-education-last> (last accessed 28 July 2017).
142 Swaziland's report to UNESCO “Education for all: 2015 national review” noted that, by 2015, 95.6% of children in Malawi were enrolled in primary school, of whom only 75% complete primary school. The report is available at: <http://unesdoc.unesco.org/images/0023/002327/232703e.pdf> (last accessed 31 August 2017).
143 See Rogers “A case for judicial enforcement”, above at note 55 at 81. Writing after the 2009 judgment but before the 2010 judgment, Rogers could see the potential usefulness and appropriateness of a supervisory order. In his view, the 2009 court should have asked the government to submit its plan to realize free primary education and ordered that it begin “promptly”.