Why it’s unconstitutional for government to demand school fees from parents

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FOR some reason one would think that the Hon. Lazarus Dokora, a minister, would be legally advised and desist from his persistent call for parents of primary school children to pay school fees or risk being arrested. For a government led by a lawyer, one would think that the Minister of Education would be given a small portion of legal wisdom and directed to the provision in section 75 (1) (a) of the Zimbabwean Constitution which entitles every citizen to a free state-funded basic education. You would forgive one for being utterly shocked that as reported by the NewZimbabwe.Com on 24/08/14, the education minister went on to describe parents who are not paying school fees as “criminals” and even urged other citizens who are called headmasters to “take such people and report them to authorities”.
On the very day 24/08/14 New Zimbabwe.Com reported in a separate article that teachers and authorities of a Gokwe primary school had “unleashed debt collectors to snatch the wealth of parents who had not paid school fees”. The minister of education, by sanctioning certain actions including court proceedings against parents who are not paying school fees, has allowed Zimbabwean citizens to act unconstitutionally and to deliberately violate the Constitution and international law.
The objective of this article
The objective of this article is not to further any political agenda since the provision of education must not be a political issue but a matter of right. This article aims to immediately inform the Zimbabwean public that a failure to pay school fees at primary school level is not a crime according to the Zimbabwean Constitution; it does not attract any civil claim from the government and the government is obliged by the Constitution to provide basic education (primary education) for free. In other words, every pupil in Zimbabwe who is attending primary school at a government school must, by right, get the education for free.
The position taken by this article is not only in compliance with section 75 (1) (a) of the Constitution but aligns with international obligations signed for by Zimbabwe. It is expected that post the clarity provided by this article, any parent who is being forced to pay primary school fees at a government school must take appropriate legal action against the government for its failure to comply with section 75 (1) (a) of the Zimbabwean Constitution.Advertisement

The regulation of basic education in Zimbabwe
Section 75 (1) (a) of the Zimbabwean Constitution provides for the right to state-funded basic education. What is unequivocally clear is that basic education must be funded by the state in Zimbabwe. The Constitution is read together with the Education Act which was enacted before the Constitution and provides that primary education is compulsory in Zimbabwe but is it not free although schools are encouraged to charge the lowest possible fees. It is the analysis of this article that the provisions of the Education Act which sanction the charging of school fees at primary level are now unconstitutional and must be aligned with the provisions of the Constitution which provides that basic education must be state-funded.
In addition to national obligations, Zimbabwe is also bound by international obligations. The Universal Declaration of Human Rights deemed to be the most important document providing for human rights states that everyone has the right to education and, at the elementary and fundamental stages, education shall be free and compulsory. Whilst the Universal Declaration stated above mainly provides for civil and political rights, the International Covenant on Economic, Social and Cultural Rights (CESCR) which Zimbabwe is party to remains the foundational treaty on economic, social and cultural rights.
The CESCR states that that primary education must be compulsory and freely available to all. As a commitment to the causes of education, state parties to the Covenant who had not made primary school compulsory and free by the time of ratification undertook to have a plan within two years to progressively make primary education compulsory and free. The Convention on the Rights of the Child (CRC), which Zimbabwe is party to, also provides that primary education must be free.
The link between Primary School and Basic Education
One might wonder why the Constitution speaks of Basic Education and yet this article speaks to free primary education. There is a link between primary education and basic education. It has been accepted internationally that the primary school is the “main delivery system for basic education of children outside the family”. The United Nations Committee on Economic, Social and Cultural Rights (the Committee) clarified that that primary education is not basic education; rather “there is a close correspondence between the two”.
The Committee reinforced the position of UNICEF which states that “primary education is the most important component of basic education”. Primary education is the most important component of basic education because it is the stage where basic education is first introduced. In other words, if any person more specifically a child desires to acquire basic education they go to primary school which is the forum for which learners begin to receive basic education. The Committee, therefore, reinforced the position that primary education must be both free and compulsory to guarantee that every child will acquire a basic education.
An analysis of section 75 (1) (a) of the Constitution
Section 75 (1) (a) is similar to section 29 (1) (a) of the South African Constitution which also provides for an unqualified right to basic education. It is interesting to note that, whilst the South African Constitution does not explicitly state that basic education must be state funded, the Zimbabwean Constitution does not only provides for an unqualified right to basic education but expressly obligates the government to pay school fees for pupils who are still at basic education level. Interpreting section 29 (1) (a) of the South African Constitution, the Constitutional Court of South Africa stated that the unqualified nature of section 29 (1) (a) means that basic education must be provided by the state for free. In Zimbabwe basic education is no only an unqualified right which must be provided for free by the state, rather for the avoidance of doubt the Constitution already guides the government by clearly stating that basic education must be “state-funded” meaning that it is free for all.
Indeed, the Constitutional and international position of compulsory and free primary education should be reinforced since primary education is a very important stage of introducing basic education. Entry into a primary school must be free, in order to ensure without doubt that every child’s need for primary education and consequently basic education is satisfied. Making primary education available free-for-all as required by section 75 (1) (a) ensures that every child is able to acquire basic education without obstructions from resource constraints. Without free and compulsory primary education, the opportunity for children from poor backgrounds to get basic education is close to nil because their parents do not have the money and it is still left to chance for children from medium-earning or rich backgrounds who depend entirely on the good will and responsibility of their parents to pay school fees.
Making primary education free is what 75 (1) (a) of the Zimbabwean Constitution provides. By making basic education a right which must be funded by the state unlike other rights which must be provided progressively within the bounds of the state’s resources, the Zimbabwean populace voted “yes” to a free basic education. The language used in the Zimbabwean Constitution regarding basic education is unequivocal and it becomes surprising when the minister of Education is calling parents “criminals” yet he is in fact the possible criminal whose intentions can only be to extort money from the unsuspecting public.
Which way for the Minister?
Inadequate resources not a defence
Besides ratifying the CRC and CESCR above, Zimbabwe took part in setting up the provisions of the World Declaration on Basic education for All (Declaration) as well as its framework of Action. The Declaration states that there is need for an expanded vision for basic education. The absence/inadequacy of resources is no longer enough to justify the failure to provide free primary education. For the provision of primary education to be possible, innovative measures must be taken by Zimbabwe which might mean the reallocation of resources from other departments to further the interests of basic education. Such an approach recognises the important role of education and the need to prioritise it as a means of enjoying other rights. With the need to provide free education in mind, Zimbabwe can divert resources used to fund indigenous farmers or to fund unending election campaigns and fund the provision of free basic education.
Government ministries must co-operate
As stated in the Declaration, there must be enhanced cooperation among government sectors to ensure the provision of free basic education. The ministry of transport must get involved in the transportation of children to school by ensuring that transport is provided for free and road networks are developed especially in rural areas. The minister of health must be involved in ensuring that children are healthy and able to learn through free immunisation programmes and food programmes in schools, whilst the minister responsible for infrastructural development must ensure that classrooms are build up to the level of development required in a country which takes the provision of free basic education seriously.
Engage civil society
Education ministers in the Sub-Saharan region together with civil society and other development agents have already agreed that education is a collective “responsibility of government, civil society and development partners”. With that in mind, the views and contribution of civil society and other developmental partners must not be viewed as views of the enemy. Civil society plays an important part as it researches and exposes weaknesses in the provision of education thereby enhancing accountability on the part of the government. By suggesting that governments can do more, civil society expands the vision for basic education making it go beyond just mere provision of basic education but also free provision. In Zimbabwe, Non-Governmental Organisations (NGO’S) must not be depicted as enemies of the government or allies of the West. The government must take advantage of what they can offer.
The media must embrace the vision
Instrumental in destroying possible partnerships between the government and civil society is media with its negative coverage portraying NGOs as seeking enmity with governments rather than cooperation. A conflict ridden approach to relationships between governments and the civil society is not instrumental to the achievement of free primary education. Achieving the goal of free primary education requires governments to exchange research findings with civil society, strategies and sometimes funds in order to make the goal possible.
The media must then expose the partnerships, communicate research findings to the public, concerns and achievements without constraining relationships because such an approach delays the goal of providing free primary education. The media must also provide a platform for exchange of information among stakeholders in education and also provide alternative means to deliver basic education materials like education programmes which help learners to understand concepts thereby increasing through put rates and helping the government directing costs to the provision of free education rather than educating repeaters.
Government must co-operate with the community
Instead of fighting parents like what the minister of education is doing, government’s cooperation with communities, families and religious leaders is also instrumental in making the goal of free primary education possible. Besides the fact that the above stakeholders can donate money to public schools or to the government, communities, families and religious leaders can offer free services like gardening in schools, building, physiological help, advice or food donations. Families must be encouraged to assist children in their learning process by helping them with such things like home work, feeding them before and after school and providing them any support which will ensure that drop outs are reduced thereby saving funds to also educate the next generations for free.
Such an approach is a long term strategy which bridges the gap between formal and non-formal education in order to increase both retention and throughput rates thereby saving costs for the free provision of basic education. As for religious leaders, churches have been involved in educating populations since colonial times and their role should be appreciated and harnessed by governments. Besides donating funds to the government to assist in education children, churches engage with children (through Sunday schools and church services) from a very young age and assists in their upbringing countries. Given their ability to influence children’s destinies, churches must be encouraged to engage with children by encouraging them to get educated and encouraging a change of any negative attitude towards education thereby ensuring that children learn and graduate in time thereby increasing throughput rates and saving money to educate the next generations for free.
Collaborate with the world
It is also notable that Zimbabwe is in debt and may dread adding more debt, opting for more realistic and economically manageable ways to provide basic education. With such recognition, collaboration with the regional and international community becomes important for countries to learn best practice recommendations that speed up the process of providing basic education. Governments must exchange information, research and best practices which make the provision of free primary education possible. The community at World level “has a well-established record of co-operation in education and development”.
Amend education laws
Seeing that the provision of basic education for free is an urgent obligation, the Zimbabwean government must also improve access to basic education by amending their education laws to ensure that they align with constitutional and international obligations which make primary education not only compulsory but free. Unequivocally stating that primary education is free in national legislation makes the rights of citizens unequivocal and puts the government under pressure to deliver that which citizens are obliged to get. Making government’s duties unequivocal also gives citizens more powers to hold the government accountable.
Also, since basic education is given at secondary school, the schooling years in which basic education is given in secondary school must be free. Policy by the education minister, norms and standards or regulations must ensure that basic education is free and state funded. Such an approach also aligns with the view of the Constitution and international law which Zimbabwe has ratified.
The public must be knowledgeable that they have a right to a free state-funded education and resists any illegal pressures by the ministry of education to pay school fees for pupils. The government already knows that it must provide a state-funded education and it is urged to focus on meeting its constitutional obligations.
(In this article, Chiedza Simbo, writes in her personal capacity and the views in this article do not represent the views of any organization)