Approaching the human rights framework from a developing nation’s perspective on education – by Gilbert Mitullah
First things first: The fact that I describe myself as an education lawyer might make this post seem counterintuitive. After all, here I am criticizing a framework that I have spent my entire life working on. Since my life’s work has been spent on human rights, especially the human right to education, I technically should be trying to justify the effectuality of the source of my day’s pay — and yet, doing so would be grossly insincere. The right to education is not necessarily playing an effectual role in cultivating an accessible and all-inclusive form of education. In this article, I’d like to put on view the precise reasons as to why this argument stands, while also proposing solutions to the complications touched upon.
The human rights approach to education, through the right to education finds its roots in Universal Declaration of Human Rights (UDHR) which came into play in 1948. Since then, the concept of the right to education as a legal, moral and normative right has been expanded over time and has gained interpretation in various contexts across the globe. The right to education has consequently been exposed to numerous challenges that expose the cracks in its conception, implementation and potential for impact in causing transformation.
On account of this, I would like to present some of the challenges that I would pose to the concept of a right to education, and what this means for an educator or a policy maker, and not a lawyer or an activist. The view I want to present is the inadequacy of the right to education to address actual education challenges at the “point of implementation,” which is the policy making table, for the school owner or leader or the classroom where students are learning. These challenges may not change the implementation of the right to education framework, but should at the least demonstrate spaces where other frameworks could be implemented, for example the capabilities approach in taking advantage of and expanding the right to education as enacted.
It should be noted that the right to education may not have universal homogenous implementation, as not all countries experience this right in the same way, and others, not being parties to any treaties enforcing the right to education do not experience it at all. That notwithstanding, the ideas behind the right to education could be implemented as a moral or normative concept.
One Ring to rule them all,
One Ring to find them,
One Ring to bring them all and in the darkness bind them
The Lord of the Rings by J.R.R Tolkien
The first challenge to the right to education, as a concept for education, which is expressed as an imperative in the UDHR and attendant treatiesis that it is based on rules, set more than 60 years ago. It has since been governing international law and international relations and their attendant consequences, including financing. These rules are then purportedly progressively interpreted and implemented across all States
The question of participation in the development of these treaties, and the system for its enforcement means that the terms of these treaties are steeped in anticipatory conflict from the very beginning, and do not offer a scenario for inclusive of the best opportunities for education. The power dynamics surrounding the acceptance of the UDHR by the UN General Assembly, where imperatives are received from above in a vertical hierarchical sense, and the mandatory terms it is steeped in, particularly in the context of developing countries many of whom were still under the shackles of colonialism when it was negotiated, and the subsequent enforcement of these rights challenges its legitimacy.
The concern is that not everybody had a say in the rules that they have had to live by for the past 60 years, and worse yet, a cultural context was not infused then. The first counter argument received on this view is that the States that are parties to these treaties acquiesced to them, so they are not being forced into it. This may not necessarily be true though, given that financing for any projects in these nations is based on such treaties. The question of aid dependency and neocolonialism since the 1960s has already been flogged and flayed and will not be addressed here, but the argument on acquiescence and its link to aid dependency cannot be overlooked.
An associated issue to this hierarchical implementation and enforcement of the human rights framework is the ambiguity it comes cloaked in. It doesn’t give exact ideas on what it means to have a right to education, and although many subsequent protocols and comments have been promulgated or given by UN Committees, what this specifically means at the “point of implementation|” is left open to interpretation, and mostly by the courts. This ambiguity was left in because of the lobbying surrounding various interests represented when crafting the rights, but has not been very helpful in explaining what it means to have these rights in so far as they are meant to be useful in improving lives and livelihoods.
Many a time it has been asked by people, “I have a right to education, so what? Can I take it to a bookshop and get textbooks? Can I take it to a school and receive admission for my child? What does this right mean?” More importantly, does the human rights approach give a sense of justice, even if it may not offer justice? Do the possessors of the rights have a sense of actually having the right?
Another issue that might occur under this framework is the amendment to accommodate emerging issues and the question of adaptability. How easy is it to get out of the treaties a State has already ratified? How easy is it for nation States to come together to actually amend these treaties?
The amount of political will and effort it would take to actually agree to changes in already ratified treaties is so great as seen from the recent Paris Climate Agreements that incorporate work that has been negotiated since Stockholm in 1972 and Rio de Janeiro in 1992. It is not easy to get in or out of these treaties, for obvious reasons, but what does this mean for increasingly changing circumstances in the context of education?
Likewise, the enforcement mechanisms of the UN, which include warnings, sanctions and calls for action would never work in the context of education. The human capital approach has ensured that each nation is interested in investing in education for development, but not interested enough to educate all people equally for their own individual benefits. There is no practical way in which an international right to education can be enforced unless domesticated, and even then, it depends on who and where this right has been infringed on for it to be implemented.
Had I the heaven’s embroidered cloths,
Enwrought with golden and silver light,
The blue and the dim and the dark cloths
Of night and light and the half-light;
I would spread the cloths under your feet:
But I, being poor, have only my dreams;
I have spread my dreams under your feet;
Tread softly because you tread on my dreams.
The Cloths of Heaven by W. B. Yeats
The second challenge, which seeks to remedy the first, but fails the framework as well, is that the human rights framework struggles with the realities of capacity, policy and politics that pepper the government’s work in every State on a daily basis. Most developing nations don’t have the capacity for implementing some of the imperatives they have acquiesced to and so have to constantly come up with strategies to cope, and even then, still cannot honour them. In international and domestic law around the right to education, the right is variously phrased, but the end is the same — in the sense that it gives the government obligations that must be achieved either presently or progressively.
A potent example is in the scenario of Low Fee Private Schools that are mushrooming in many countries like India, Pakistan, Kenya, Uganda and Nigeria. Research already demonstrates that it is the perceived failing public schools that are pushing more and more parents to these so called “private schools for the poor” where these schools have sprouted, discounting the presence of commercial school chains that fall in this category. It is clear that the governments are struggling to keep up with the pressures of growing populations and the consequent growing obligations without the right finances and personnel, whether its quality assurance and standards staff or teachers. In this space, the private sector has responded to cover for the areas the government struggles.
That notwithstanding, the human rights framework, and those who are constantly monitoring its enforcement and implementation insist that the State must provide free public basic education as is the aspiration of Jomtien 1990 and Dakar 2000 and that it cannot delegate this role to others, especially in this context of Low Fee Private School.
But what can governments do? Where they lack the capacity, they throw their hands in the air and say they have done their best, and anyone who says differently can move to court where the government will repeat the same words and the court cannot compel them to do more than their best. States like Pakistan have insisted that they have the duty to adhere to the right to education, but it cannot be dictated to them how to do this and so have allowed for Public Private Partnerships and a greater space for private providers of education to thrive.
Some arguments could be made on just how strictly this approach could be taken and what it means for law, but for the majority of interpreters of these treaties with an enforcement and conflict approach, the hard-line on who gets to play in the education field is very clear.
Don’t leave me in all this pain
Don’t leave me out in the rain
Come back and bring back my smile
Come and take these tears away
I need your arms to hold me now
The nights are so unkind
Bring back those nights when I held you beside me
Unbreak my Heart, Toni Braxton
A third challenge that I pose to the human rights framework, and particularly the terms and language it is soaked in, is that it gives only the government agency as a duty holder, and that any other person in the discourse is either a right holder or non-existent. The fact that human rights are considered innate natural rights makes this scenario even more intriguing.
The right to education is given, not possessed, and so is futile in so far as the giver is unwilling to participate. Understandably, this nuanced approach was important because it is States that are party to treaties and other parties who participate in treaty making only determine what gets into the treaty but not what happens subsequent to its ratification. It is an ambitious goal to not only compel various governments of a particular State to honour treaties that they never ratified themselves, but that in the face of their own political agendas and with the power they have newly won, or taken or otherwise acquired, they must now go about the work of implementing global treaties. Given the international structures around financing for developing countries, diplomacy, development and other such platitudes will compel them to acquiesce, but not as willing partners but rather as prisoners of circumstances.
Under such circumstances, would it really be possible to claim that these governments will do their best? Sometimes it is the governments that are the aggressors on these rights, and there is no recourse against them. Whether this is because these governments are dictatorial or corrupt, too poor to care or too encumbered with different priorities to bother, there are many reasons why the governments would not honour these obligations as envisioned. In this sense, the human rights framework for accessing education is challenged by those who are the main actors in the discourse.
This may be remedied through the courts, as is often the case, but the courts can only offer so many solutions. Some have argued for a minimalist approach to socio-economic rights that ensures the bare minimum of the right to education is implemented, but accessing justice for the poorest people is a whole other ball game, the subject of scores of theses and dissertations around the world.
Furthermore, there is only a certain level to which remedies from the courts are effective. In Kenya, for example, the Constitutional court has repeatedly stated that its orders cannot go into determining government policy but will work to enforce the law to the best of their ability. In the case of exorbitant school fees at the Kenya School of Law, an institution that has been beleaguered with numerous constitutional cases surrounding the high school fees it charges, the courts have held severally that although prospective students of the school have a right to education, it is not impeded by the school fees and that the courts cannot issue orders on school fees because it is judicial policy to refrain from orders that work in vain and whose compliance is near impossible. In this way, the duty bearer and right holder approach does not offer complete solutions for education, and would not be able to handle complex issue that are better suited for negotiation, progressive planning and community engagement. The human rights framework fails on this account.
The other issue with the duty bearer and right holder nexus, is that solutions sometimes do come from outside this discourse, which are then challenging to implement without the State, and in other instances, challenges to the right to education come from outside the same nexus, and the right holders then have a problem in bringing charges against the transgressors.
Would it be possible to sue a private institution for infringing on your right to education? What happens where the right to education is infringed on by a government independent contractor, as might happen with charter schools and similar models?
These weaknesses with the human rights framework, especially from a systemic point of view must be addressed satisfactorily and not just for those with information, money and power, but also for the poorest of the poor, who would not know where or how to start.
We should make them
Go back to where they came from
Share our food
Share our homes
Share our countries
Instead let us
Build a wall to keep them out
It is not okay to say
These are people just like us
A place should only belong to those who are born there
Do not be so stupid to think that
The world can be looked at another way
Refugees by Brian Bilston
A final criticism and thought on the human rights framework is that it may not cater to migrant populations, refugees and immigrants in States. The strength of the human rights approach is on dealing with States and keeping States accountable. States themselves owe allegiance to their citizens who pay taxes and participate in economic, social and political progress. That notwithstanding, we are now living in a world where millions of people are fleeing their homes because of war, disaster, economic turmoil and other challenges, to preserve their lives or in search of better opportunities. These people have no rights where they go, except as refugees and asylum seekers. Even then, the supposed innate human rights mean nothing for them, much less the right to education. The States themselves reject their existence, let alone the presence or possession of rights, and as such these people have no recourse. They die in the seas in their flight to safe havens — and when they get there, they die on the land, albeit slowly. In this sense, all the moral platitudes that could be stated, overstated and pronounced could not help refugees enforce a right in the courts.
We shall defend our island, whatever the cost may be, we shall fight on the beaches, we shall fight on the landing grounds, we shall fight in the fields and in the streets, we shall fight in the hills; we shall never surrender.
Having attempted to make a case for the weakness of the human rights framework, where does the road lead? I would wager that there are numerous solutions that could be presented.
To make it clear, a system with weaknesses doesn’t make it bad, it only makes it incomplete. I would argue that Amartya Sen and Martha Nussbaum’s Capabilities Approach could be a good way to operationalise a human rights framework if implemented together. How this would be done is the subject of another article, but the possibility of joining these two concepts to work together still stands. In the context of developing countries, where the human rights language and framework is being implemented, a partnership with the capabilities approach would prove useful in the sense that it would try to complete a picture half painted, for the prosperity and wellbeing of all people, both rich and poor.
There may be many other solutions to this challenge, but that would be a good place to start. The point here is that we cannot give up in fighting for a fairer, more equal world, where the possibilities for future generations are secured and the prospects of the present ones are sure. As Churchill puts it: “We shall never surrender.”
 Article 26 of the UDHR states that, “Everyone has the right to education”.
 These include the UNESCO Convention against Discrimination in Education (1960), International Covenant on the Elimination of All Forms of Racial Discrimination (1965), International Covenant on Economic Social and Cultural Rights (1966), Convention on the Elimination of All Forms of Discrimination against Women (1979), African Charter on Human and People’s Rights (1987), Convention on the Rights of the Child (1989), International Convention on the Protection of the Rights of All Migrant Workers and Members of their families (1990), Convention on the Rights of Persons with Disabilities (2006) among others.
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Note: This article was first published on Medium.com