Neglecting the law and failing the poor

One of the guarantees of our celebrated Constitution is that every child has the right to education. In order to secure this right in practice the law stipulates that fees should not be charged for any child who is an orphan or in foster care, for any child whose guardians receive a state grant or a pension or for any child whose guardians earn less than ten times the annual school fee.

Yet every year many organisations report that this is a very difficult time of the year for poor families. Despite all the laws and policies that protect the right of all children to access schools, children are unlawfully excluded every year because their parents can’t pay fees. Allegations of racist exclusions also remain common.

Often parents are coerced into paying fees that they simply cannot afford with devastating consequences for the general well-being of their households. There are also regular reports of parents being forced to come into schools before they go to their jobs to do cleaning work in lieu of fees. And when children are accepted into schools, when their parents haven’t been able to pay the full fees, there are regular reports of children being humiliated and punished for their parent’s poverty.

There certainly are cases where school principals and governing bodies simply do not want poor or African children in their schools. In these cases the failure of the state is one of omission — a failure to clamp down on the bigotry that is often present in state institutions like some schools and some police stations.

But there are also many cases where principals and governing bodies have no particular animus towards the poor, or towards Africans, but simply cannot run their schools with the money allocated to them by government. In these cases schools that are struggling to buy chalk, pay electricity bills and so on have no viable alternative other than to extract resources from struggling families. One of the reasons why the government is able to get away with self aggrandizing recklessness while basic needs, such as the right of each child to a decent education, are not taken care of is the widespread failure to implement laws and policies when they protect the poor.

It is true enough that we have one of the best constitutions in the world but it is equally true that it is violated by state and private power every day. Most of the time people subject to these kinds of violations simply don’t have the resources to seek legal redress. And when they do get to court they find that the judges in the local courts are not always sympathetic to constitutional values or, in one notorious case, even willing to stay awake, while the poor argue their case. A fair hearing is guaranteed in the Constitutional Court but who has the resources to access the highest court in the land?

The failure to ensure that no child is excluded from school on the basis of their parent’s poverty is just one instance of a general failure to implement legal and policy protections for the poor. One consequence of the radical difference between laws and policies on the one hand, and the lived reality in our society on the other, is that it has now become grossly irresponsible to deny the difference between state principles and state practice. For too long when academics or social movements have raised concrete issues about specific rights violations, politicians have replied with lists of laws and policies. The laws and policies may be commendable but when they are not implemented they offer no alibi for oppression.

If we are to think seriously about our society we must start with the lived reality of life in our society. And that lived reality is one in which the children of the poor are excluded from schools each year. We need to face up to this reality and we need to support the heroic NGOs and social movements that quietly take up this battle year after year.