In South Africa, the legal framework that sets out the right to education is robust and unambiguous. In the last few years, the courts have gone to great lengths to give substance to what this right to education entails, and it is this same legal framework that informs our work as activists.
Section 29(1)(a) of the Constitution says “everyone has the right to a basic education, including adult basic education”.
The courts have been at pains to explain what this means. For example, in Juma Musjid Primary School and Another v Ahmed Asruff Essay N.O. and Others it was expressly stated that the right to education is “immediately realisable” – which means all components of the right must be provided as soon as possible.
This is distinct from other socio-economic rights, which are subject to qualifiers such as “progressive realisation” and “within available resources”.
The court in Equal Education and Another v Minister of Basic Education and others noted that the right to education includes the right to adequate infrastructure. Furthermore, the Court in Komape and Others v Minister of Basic Education, expressly noted that the right to education “includes provision of adequate and safe toilets at public schools for learners”.
This legal framework is essential in helping learners and their parents understand that safe and decent sanitation is an integral part of the right to education.
The opposite, however, is also true. Where there is poor, dangerous or inadequate infrastructure, the right to education is substantially violated.
Domestic policy acknowledges the impact that sanitation has on the realisation of the right to education.
The National Policy for Equitable Provision of an enabling school environment (NPEP) – the Department of Education’s infrastructure policy – notes the link between poor infrastructure and educational performance. The policy notes that poor infrastructure (which includes sanitation) has led to poor school attendance and higher drop-out rates.
When it comes to teachers, the policy notes that poor infrastructure results in attrition, high turn-over and high teacher absenteeism.
Internationally, General Comment 13 on the Right to Education issued by the UN Committee on Economic, Social and Cultural Rights (ESCR) makes reference to “the four As” – availability, accessibility, acceptability and adaptability. The committee, in its consideration of these four As, noted that the right to education entails the right to receive an education in a physical environment conducive to learning.
Safe and adequate toilets (sanitation) are therefore not only a significant feature in the right to education but have a substantial impact on other rights, such as the right to a safe environment that is not harmful to health (environmental rights) and the right to dignity, privacy and equality.
It is evident that the role of toilets in the realisation of fundamental human rights is incredibly significant and cannot be overstated.
Despite this robust legal framework, the state of sanitation in South Africa for many poor, black and rural citizens remains inadequate and hazardous.
In 2014, a five-year-old boy, Michael Komape, lost his life after falling through a pit toilet which could not support his tiny body. In the pursuit of justice for Michael’s death, one year ago SECTION27 compiled a report with a focus on the state of school sanitation in Limpopo. After months of extensive research and site visits, startling revelations came to light.
It was revealed that the Department of Basic Education’s reporting figures varied from source to source, suggesting that the department does not know how many unsafe toilets there are. If this is the case, it means the department is not in a position to adequately make provision for what is required.
However, most startling in the research were testimonials from learners on their lived experiences of inadequate sanitation.
Learners, particularly girls, described having to walk for 30 minutes out into the bush to relieve themselves, often being exposed to snakes, onlookers and threats of sexual violence. Others reported how they would have to go to the toilet in groups of three so that two learners could serve as “doors” or to make sure fragile pit latrines did not collapse.
On World Toilet Day, as we consider the role of toilets in education holistically, we quickly understand they are more than instruments of relief – they are part and parcel of the realisation of essential human rights. MC
Vuyisile Malinga is a researcher at SECTION27.