SECTION27 SUBMISSION ON THE COMMITTEE ON THE RIGHTS OF PERSONS WITH DISABILITIES
“DRAFT GENERAL COMMENT NO. 4 ARTICLE 24 THE RIGHT TO INCLUSIVE EDUCATION”
5 JANUARY 2016
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SECTION27, Non Profit Company (2006/021659/08) .
Board of Directors: Ms V. Dubula (Chairperson), Justice J. Kriegler (Deputy Chairperson), Mr N. Ndlovu (Treasurer), Prof. Q. Abdool-Karim,
Dr B. Brink, Ms A.L. Brown, Mr M. Heywood (Executive Director), Prof M Pieterse (ex-officio), Justice M.Z. Yacoob.
I.
INTRODUCTION: THE IMPORTANCE OF THE GENERAL COMMENT TO THE RIGHT TO BASIC
EDUCATION FOR CHILDREN WITH DISABILITIES IN SOUTH AFRICA
1. SECTION27 is a public interest law centre that has a national and international reputation for
defending and advancing human rights in South Africa. SECTION27 is one of a small number of
public interest organisations in South Africa that work to draw attention to and pursue legal
remedies to address the poor quality of education in the majority of South Africa’s public schools.
2. Much of the litigation and advocacy that has occurred in this regard has been in terms of the right
to a basic education guaranteed in Section 29(1)(a) of the South African Constitution. In one such
case where SECTION27 represented the community-based social movement Basic Education For
All, the Supreme Court of Appeal’s judgment handed down in December 2015 reaffirmed this
“unqualified” and “immediately realisable” right to a basic education holding that “[i]t cannot be
emphasised enough that basic education should be seen as a primary driver of transformation in
South Africa.”1 SECTION27 has over the last three years also become increasingly involved in cases
addressing issues of access to education for learners with disabilities and special learning needs.2
3. This submission should be read with our previous submission to the United Nations Committee on
the Rights of Persons with Disabilities (“Committee”) which drew attention to two of SECTION27’s
interventions in highlighting some of the systemic concerns in respect of access to education in
South Africa for children with disabilities.3 It should also be read with SECTION27’s November 2015
report “Left in the Dark: Failure to Provide Access to Quality Education for Blind and Partially
Sighted Learners in South Africa”4 and Human Rights Watch’s August 2015 report “Complicit in
Exclusion: South Africa’s Failure to Guarantee an Inclusive Education for Children with Disabilities”.5
Both of these reports document in detail the widespread violation of children with disabilities’
rights in terms of both the South African Constitution and Article 24 of the United Nations
Convention on the Rights of Persons with Disabilities (“UNCRPD”).
4. This submission is also made in the context of the South African Constitutional Court’s ruling in De
Vos in June 2015 that rights in South Africa’s Bill of Rights must be “interpreted in light of
[provisions]” of the UNCRPD.6 Indeed Article 24 itself has already been used by the High Court to
protect the rights of children with severe intellectual disabilities to a basic education.7 In this
context, it is therefore extremely likely that the contents of the Committee’s General Comment will
have direct bearing on courts’ decisions when it comes to defining the contents of the rights to an
equal and high quality basic education for children with disabilities and special learning needs. We
therefore urge the Committee to fully and carefully consider SECTION27’s submissions on the
contents of the draft General Comment (“Draft”), which has significant potential to assist
SECTION27 in effectively advocating for the right to a basic education of what, according to South
Africa’s 2009 General Household Survey and a UNICEF report, could be more than 2.1 million
children with disabilities in South Africa.8
II.
COMMENTS THE DRAFT GENERAL COMMENT
Normative Content of Article 24
The importance of understanding inclusive education as a context-specific process
5. The Draft acknowledges that the Committee “defines the right to inclusive education as a process”
which requires an incremental “in-depth transformation of education systems” (para 9). As is
noted by MacArthur cited in the Draft, inclusion is not a “perfect state” but a school or system that
is “on the move”.9 These varied systems must be “functional” and will “depend on the
developmental context in which they operate” (para 20). The Draft acknowledges that there is “no
‘one size fits all’ formula to reasonable accommodation” (para 29). It furthermore affirms that
“State parties will need to adopt the most appropriate model in accordance with the level of
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development current within their education system” (para 73). However, this is not always
consistent with the seemingly firmly-set standards for mainstreaming and the apparent speedy
disintegration of special schools required by the Draft, for example.
6. According to Mitchell, cited in the Draft, inclusive education “has been a particularly problematic
concept in developing countries”.10 The problem in these settings, of which South Africa is a prime
example, is dire, with Mitchell noting that in some developing countries “fewer than 2% of children
with disabilities receive any form of education”.11 Mitchell notes too that inclusive education will
necessarily “take[] on different meanings in different countries”.12 Despite its recognition of the
importance of a progressive, context-specific development of education systems, SECTION27
submits that the Draft does not take sufficient cognisance of the importance of unique and
differing incremental local adaptations and implementations of inclusive education.
7. Rapid mainstreaming in particular is complicated and risks prejudicing the rights and quality of
education received by children with disabilities in severely under resourced education systems
which are common in developing countries like South Africa. Though an international right to an
inclusive education through a determined and expeditious process is helpful, the Committee would
do well to emphasise the importance of evidence-based innovation and experimentation in local
settings. Failure to do so risks confusing governments with little available resources and minimal
understanding of inclusive education and may in so doing place at risk what little existing quality
education is available to children with disabilities.
8. For example, in South Africa, Inclusive Education White Paper 6 rationally and rightly emphasises
the need to use existing special schools as resource centres and expert centres for learning for
children with severe disabilities while the process of inclusion is underway. An overemphasis on
the need for immediate mainstreaming may be misinterpreted as contradicting South Africa’s
considered, context-sensitive policy on inclusive education which stresses the need for special
schools to be “strengthened” and “vastly improved” while the process of mainstreaming is
underway.13 This is particularly the case in the context of the Draft’s insistence that the
“Committee urges States parties to achieve a transfer of resources from segregated to inclusive
environments” (para 18). In our experience it is in children’s best interests that funding for, and
capacity of both special schools and inclusive mainstream schools must be improved concurrently
in order to ensure the full accommodation of children with disabilities in South Africa in the short
and medium terms. The Committee should be wary of creating an invidious ideological and
budgetary zero-sum game to the detriment of children with disabilities.
Rational, evidence-based approaches to inclusive education
9. Localised systems of inclusive education should not receive a “free pass” on the content and
direction of their inclusive education systems. The Draft acknowledges the importance of the
collection of high quality, comprehensive and accurate data (para 20) to allow “policy formulation”
(para 68), “budgetary allocations” (para 64) and “monitoring of the progress of the
transformation” (para 78). However, it does not emphasise that the key reason for the need for
data collection is the varied nature of responses that will be appropriate in different settings and
the necessity of rational, evidence-based policy responses: without accurate data rational,
evidence-based policy making is impossible.
10. Mitchell, cited in the Draft, emphasises that the battle between ideology and rationality is an
omnipresent one in the context of varied approaches to inclusive education around the world.
Though the evidence clearly favours dramatically increased inclusion, Mitchell notes of critics’
contributions that “at the very least, these writers urge caution in the implementation of full
inclusion”.14 Rhetoric should not be favoured over context-sensitive and specific empirical
evidence. The following are systemic problems which presently exist in the inclusive schools in
South Africa:
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Limited Resources: Limited financial and human resources at inclusive schools often render
what are theoretically laudable attempts at inclusion difficult for teachers and intolerable for
learners. Both special schools and inclusive schools are chronically underfunded for the
procurement of basic educational needs of their learners such as learning materials and
assistive devices. This problem is even more acute with regard to a dearth of necessary
specialist disability specific (such as sign language interpreters and orientation and mobility
instructors) and non-specific (such as class assistants) positions.
Lack of individualized attention and differentiated curricula: Many inclusive schools, which
are generally less adequately equipped even than special schools, report teachers having to
teach classes of over 50 learners which include children with varied special learning needs who
all require individualised attention. This problem is exacerbated by an inflexible,
undifferentiated curriculum and little training and time for teachers to differentiate curricula.
Insufficient expertise and training for teachers: Teachers are appointed to inclusive schools
with no existing knowledge of inclusive education at all. Once appointed at schools, the
workshops that they are given on inclusive education by department officials are irregular, too
general and often of little practical use at schools.
Insufficient departmental support for schools: A principal at a special school for learners with
visual impairments told SECTION27 “[no] school for children with disabilities could possibly
survive and operate efficiently without the continuous support of the Department.”15 Support
is also often lacking as a result of incapacity of the education departments themselves. The
National Department of Basic Education notes that in the 6 out of 9 provinces from which data
is available alone there are 231 vacancies for crucial positions with inclusive education
directorates.16
Inclusive Education is understood as an ideology not a practice: Inclusion is also often spoken
about on both a policy and classroom level in a way that clumps all children with special
learning needs into one group to the detriment of the special and particularised
accommodations and individualised attention that each disability or learning need requires.17
This confuses schools and government officials who often report an inadequate understanding
of the role of their school – whether a special school, an inclusive school or a mainstream
school – within the inclusive education system. While it is sometimes understood as a concept
inclusive education is seldom understood as a practice.
11. The reality is, that even 14 years after the introduction of an inclusive education policy in South
Africa, children are therefore sometimes excluded from appropriate education despite their
admission to ostensibly inclusive schools. SECTION27 therefore submits that the need for
evidence-based policymaking and implementation should be emphasised by the Committee
explicitly and that the Committee should exercise caution in implying that hesitance to mainstream
immediately, particularly in the context of developing countries, arises purely out of “misplaced
fears that inclusion will lead to a deterioration” of education for either children with or without
disabilities (para 5).
Providing choices to children with and parents of children with disabilities and special learning
12. The Draft acknowledges the importance of consultation with people and communities, people and
children with disabilities (para 80) and their parents and families (para 66-7) in the policy
formulation process. However, SECTION27 submits that the Draft does not sufficiently highlight the
importance of children with disabilities and their parents’ right to choose which type of school with
an existing system undergoing a process of inclusive transformation to attend.
13. Children with disabilities are entitled to the same choices. The United Nations Convention on the
Rights of the Child affirms children’s rights to be heard, taken seriously and participate actively in
their communities, including schools and in “all matters affecting” the child.18 This right is
reiterated by the UN Committee on the Rights of the Child’s 2009 General Comment No.12 “The
right of children to be heard”.19 In any event in many countries including South Africa, legislation,
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policy and the Constitution require children’s and parents’ meaningful participation in decisions
about which school within an existing system to attend.20
14. SECTION27 submits that this right to choose should not be impinged on by an overemphasis by the
Committee on the importance of children attending mainstream and/or inclusive schools. Various
rational, context-sensitive factors including stigma, locality, quality of schooling and severely
limited availability of expert support may determine parents’ and children’s decisions in this regard
particularly in resource constrained environments such as South Africa where inclusive education
systems are still in their infancy. A blind grade 12 learner at a special school told SECTION27:
“I was in a mainstream school in grade two. I didn’t even manage with [limited] sight. [T]hey forget to
accommodate you. You are an inconvenience. Some of my friends went out but they all come back. They
don’t have time to accommodate you…. I think the fact that there is a [special] school like this really
helps us. We are talking about education but you still need a soul inside you. [At mainstream schools]
they tease you. People are cruel.”
Immediately realisable nature of the right to inclusive education
15. The Draft stipulates that reasonable accommodation, non-discrimination, compulsory and free
primary education, the development of a national education strategy and the introduction of
certain educational objectives have immediate “effect” or are immediately “applicable” (para 40).
SECTION27 draws the Committee’s attention to the fact that in South Africa all components of the
right to a basic education are “immediately realisable”.21 SECTION27 therefore submits that the
Committee should acknowledge that the intention of the General Comment is not to limit the
extent of the content of the right and the corresponding duties of the state in countries like South
Africa in which all aspects of the right to a basic education are “immediately realisable”.
Primary and secondary education for children with disabilities
16. One practical effect of a failure to acknowledge that more may be required of states in specific
contexts in terms of their own constitutions is the diluting of the rights to a free secondary
education for children with disabilities. The Draft explicitly contrasts the right to free and
compulsory primary education for children with disabilities with the obligation to make secondary
education “available”, “accessible” and to take “progressive measures” to ensure it is free (para
23).
17. This distinction is particularly problematic with regard to the education of children with disabilities
in both special and inclusive schools in South Africa. SECTION27’s own research in the
uMkhanyakude District of rural northern KwaZulu-Natal confirms that out of 14 schools for
children with disabilities in the district (11 inclusive schools and 3 special schools) there is only one
secondary school that accommodates less than 100 children with disabilities. Many learners with
disabilities who attend both special schools and inclusive schools for primary schooling therefore
drop out or attend inappropriate and unaccommodating mainstream schools to avoid transport,
hostel and school fees.
18. The Draft observes that learners with disabilities should not be considered as “uneducable” (para
63) and warns against “limiting opportunities to predefined and negative assumptions of potential”
(para 16). Sadly, the de-emphasis on the obligations of states with regard to secondary education
perpetuates these stigmatising approaches and leads governments not only to prioritise primary
education but to deprioritise secondary education. The result is, in the words of a principal of an
inclusive school in South Africa “to set children with disabilities up for failure” after raising their
hopes through primary education.
Obligations of State Parties
The need for a “duty to promote”
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19. The Draft emphasises the importance of human rights education about the right to education of
children with disabilities (para 65) and implores states to “invest in awareness-raising to promote
understanding of the nature of disability, the human rights model of disability, and the diversity of
inclusive education” (para 77). This affirms the repeated emphasis on “awareness-raising” and
“promotion” of rights of people with disabilities in the CESCR’s General Comment on Persons with
Disabilities.22 Without such vital activities there is little chance of the effective and expeditious
stigma-reduction that will be necessary for full societal buy-in to the concept of inclusive
education. The harsh reality is that in the context of ubiquitous discrimination, bullying and lack of
support in South Africa, parents and learners often report that their best option under the
prevailing circumstances is to elect to isolate themselves with other children with disabilities in
special schools.
20. In South Africa, despite a policy statement requiring awareness raising and “mobilisation of out of
school learners” as an urgent policy measure, these campaigns are largely simply not conducted by
departments of education. It appears that these are seen as optional-extras when in reality they
are the cornerstones and fundamental building blocks of any inclusive education system. Funding
shortages, and, perversely, provincial departments’ officials’ “fear of being unable to provide for
learners’ [with disabilities] needs” have also been cited as reasons for this failure.23
21. SECTION27 therefore submits that in addition to the obligations to fulfil, protect and respect, in
line with previous jurisprudence of the CESCR,24 and international scholarship,25 the Committee
should include an obligation to “promote” which captures as a legally binding requirement the
importance of human rights education, awareness-raising about disability and comprehensive
campaigns to ensure the mobilisation of out-of-school learners with disabilities. A legal obligation
of this nature would assist SECTION27 and other advocacy organisations in pressurising the state to
remedy the current state of affairs in which, according to the Department of Basic Education, there
may be as many as 597 593 children with disabilities who receive no schooling at all.26
A comprehensive and co-ordinated legislative framework
22. The Draft asserts that a “comprehensive and co-ordinated legislative framework for inclusive
education needs to be introduced” by states which identifies responsibilities on local, regional and
national levels (para 63). It also highlights the need for the setting of “educational objectives” and
a comprehensive “national education strategy” (para 40). None of these are necessarily legally
binding. In South Africa, the sole inclusive education policy of the Department of Basic Education
remains a “White Paper” which is easily withdrawn and not strictly legally binding. The High Court
has described it as “merely a document issued by the Department of Education”.27 This legal
vacuum is a significant obstacle in attempts to hold the government to account.
23. SECTION27 therefore submits that the Committee should acknowledge within the list of “core
rights” that have an “immediate effect”, alongside a national educational strategy and a set of
educational objectives (para 40), the obligation to enact legally binding and actionable framework
policy and/or legislation which cannot be easily revoked without democratic consent and process.
Indeed this may already be a constitutional requirement in South Africa.28
III.
CONCLUSION
24. SECTION27 welcomes the opportunity to make this submission to the Committee on the Draft. We
congratulate the Committee on this enormous step taken towards the realisation of the rights of
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children with disabilities and remains available to the Committee to answer direct questions or
participate in individual or group consultations.
ENDNOTES
1
Minister of Basic Education v Basic Education for All ZASCA 198 (2 December 2015) at paras 36, 40 available at
<http://www.saflii.org/za/cases/ZASCA/2015/198.html>.
2
Khumalo, S and Hodgson TF “The Right to Education for Children with Disabilities in South Africa: SECTION27’s
action from national research and litigation strategies to international advocacy” Right to Education Project (14
April 2015) available at <http://www.right-to-education.org/blog/right-education-children-disabilities-southafrica-section27-s-action-national-research-and>.
3
SECTION27 “Submission on the Right to Education for Persons with Disabilities in South Africa to the Committee
on the Rights of Persons with Disabilities” (March 2015)
available at <http://section27.org.za/wp-content/uploads/2015/03/SUBMISSION-ON-THE-RIGHT-TOEDUCATION-FOR-PERSONS-WITH-DISABILITIES-IN-SOUTH-AFRICA-TO-THE-COMMITTEE-ON-THE-RIGHTS-OFPERSONS-WITH-DISABILITIES.pdf>.
4
SECTION27, “Left in the Dark: Failure to Provide Access to Quality Education for Blind and Partially Sighted
Learners in South Africa” (November 2015) available at <http://section27.org.za/wpcontent/uploads/2015/11/S27-left-in-the-dark-2015-accessible.pdf>.
5
Human Rights Watch “Complicit in Exclusion: South Africa’s Failure to Guarantee an Inclusive Education for
Children with Disabilities” (August 2015) available at <https://www.hrw.org/report/2015/08/18/complicitexclusion/south-africas-failure-guarantee-inclusive-education-children>.
6
De Vos N.O and Others v Minister of Justice And Constitutional Development and Others [2015] ZACC 21 (26 June
2015) at para 58 available at <http://www.saflii.org/za/cases/ZACC/2015/21.html>.
7
Western Cape Forum for Intellectual Disability v Government of the Republic of South Africa and Another (2011
(5) SA 87 (WCC)) [2010] ZAWCHC 544; 11 November 2010) at para 20-26 available at
<http://www.saflii.org/za/cases/ZAWCHC/2010/544.html>.
8
UNICEF, “Children with Disabilities in South Africa: A Situational Analysis 2001-2011” at 10-1 available at
<http://www.unicef.org/southafrica/SAF_resources_sitandisability.pdf>.
9
MacArthur, J “Learning Better Together: Working towards inclusive education in New Zealand Schools” (2009)
at 14.
10
Mitchell, D “Education that Fits: Review of international trends in education of students with special
educational needs” (2010) at 121.
11
Id at 121.
12
Id at 124.
13
Department of Basic Education “Education White Paper 6: Special Needs Education – Building and Inclusive
Education and Training System” (2001) at 3 available at
<http://www.education.gov.za/LinkClick.aspx?fileticket=gVFccZLi/tI=> .
14
Mitchell at 139.
15
Left In the Dark above note 4 at 72.
16
Department of Basic Education “Report on the Implementation of Education White Paper 6” (November 2015).
17
Left In the Dark above note 4 at 5-7.
18
United Nations Convention on the Rights of the Child, Article 12.
19
United Nations Committee on the Rights of the Child “General Comment No. 12 (2009): The right of the child to
be heard” available at <http://www2.ohchr.org/english/bodies/crc/docs/AdvanceVersions/CRC-C-GC-12.pdf>.
20
Children’s Act 38 of 2005; S v M [2007] ZACC 18; 2008 (3) SA 232 (CC) (26 September 2007) at para 18-20
available at <http://www.saflii.org/za/cases/ZACC/2007/18.html>; MEC for Education: Kwazulu-Natal and Others
v Pillay [2007] ZACC 21; 2008 (1) SA 474 (CC); 2008 (2) BCLR 99 (CC) (5 October 2007) at para 177 available at
<http://www.saflii.org/za/cases/ZACC/2007/21.html>.
21
Governing Body of the Juma Musjid Primary School & Others v Essay N.O. and Others [2011] ZACC 13; 2011 (8)
BCLR 761 (CC) at para 37 available at <http://www.saflii.org/za/cases/ZACC/2011/13.html>.
22
United Nations Committee on Economic, Social and Cultural Rights “General Comment No.5: Persons with
Disabilities” (1995) at paras 6,8,9, 11.
23
Wildeman, R & Nomdo, C “Implementation of Inclusive Education: How Far are we?” (2007) available at
<https://www.nelsonmandela.org/omalley/cis/omalley/OMalleyWeb/dat/provinccial%20education%20depts%2
0not%20up%20to%20the%20job.pdf>.
24
United Nations Committee on Economic, Social and Cultural Rights “General Comment No 14: The Right to the
Highest Attainable Standard of Health” at 33; United Nations Committee on Economic, Social and Cultural Rights
6
“General Comment No 15: The Right to Water” at 25; United Nations Committee on Economic, Social and
Cultural Rights “General Comment No. 19: The Right to Social Security” at 47–9.
25
See Hodgson, TF “Bridging the Gap Between people and the Law: Transformative constitutionalism and the
Right to Constitutional Literacy” Acta Juridica 1ed (2015) 189 at 200-4 for more on an international law “duty to
promote”.
26
Department of Basic Education “Report on the Implementation of Education White Paper 6” (November 2015).
27
Western Cape Forum for Intellectual Disability above note 7 at para 40.
28
Government of the Republic of South Africa and Others v Grootboom above note 8 at para 40.
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