19 March 2019
Media statement: Equal Education and Equal Education Law Centre secure recommendation for Constitutional amendment to better protect learners’ rights
Parliament’s Constitutional Review Committee has adopted our recommendations to amend the Constitution, in accordance with a submission made by Equal Education (EE) and the Equal Education Law Centre (EELC). Our submission to the Committee, which can be read here, argues that Section 100 of the Constitution ought to be changed, to improve its effectiveness. Section 100 of the Constitution may be used by national government, as an extreme measure, to take over the functions of a provincial government when service delivery has broken down, and to restore a basic level of functioning.
In a meeting of the Constitutional Review Committee, held on 7 March, the Committee said it was “in favour of a slight amendment to Section 100 so as to give it clarity and effect”. Parliament’s legal adviser, advised the Committee that EE and EELC had made a compelling case and cited practical examples to support our submission. The Committee decided that the responsibility to implement the changes be handed over to the next Parliament.
In 2011, the Eastern Cape Department of Education (ECDOE) was placed under a Section 100 intervention – but in 2016, when we made our submission to the Committee, there was not substantial improvement. The consequences for learners were teacher shortages, non-delivery of textbooks, a lack of scholar transport, and school infrastructure in an appalling state. ECDOE officials claimed that the intervention was relaxed in 2016, but Basic Education Minister Angie Motshekga then publicly stated that it was still in full force.
The National Council Of Provinces (NCOP) Select Committee on Education and Recreation failed in its Constitutional mandate to oversee the Eastern Cape intervention. The NCOP has a special responsibility for oversight of Section 100 interventions. In terms of Section 100(2) of the Constitution, it must approve or disapprove an intervention, and while an intervention runs the NCOP must review it regularly and make any appropriate recommendations to the national government.
Our submission to the Constitutional Review Committee thus argued that learners’ rights would be better protected if Section 100 was amended to require more strict oversight, and if legislation was enacted that would clearly and carefully regulate the intervention process. We further proposed that a subsection be introduced to place an obligation on the national executive to report at least quarterly, in writing and orally, to the NCOP on the progress achieved and the challenges encountered in implementing the intervention.
Had there been proper oversight of the Eastern Cape intervention since 2011, the failure to deliver decent school infrastructure and to comply with the Norms and Standards for Public School Infrastructure could have been addressed. We look forward to the adoption of our proposed amendments.