Justiciability & Litigation

South Africa is in the unique posi­tion of hav­ing the right to edu­ca­tion guar­an­teed in the Con­sti­tu­tion. The law has been used to advance this right by trans­lat­ing what is on paper into a real­ity for thou­sands of learn­ers across the coun­try. The LRC and part­ners have been at the fore­front of civil soci­ety efforts in achiev­ing this. We wanted to share our suc­cesses.

This publication includes an overview of key right to education decisions made by the Inter-American Court of Human Rights, the European Court of Human Rights, the African Committee of Experts on the Rights and Welfare of the Child, and the UN Human Rights Committee. They are judgments that have taken place in these courts from 1988 to 2014 and deal with the fulfilment of the right to education for various groups, such as people with disabilities, migrants, persons deprived of liberty and Indigenous Peoples.

The Guide identifies equality and non-discrimination strategies that NGOs, lawyers and activists may employ in seeking to advance economic and social rights (ESRs) before courts. It is also accompanied by an online Compendium of useful cases in which equality and non-discrimination concepts and approaches have been employed to advance ESRs.

This Guide will inspire and help judges and lawyers working at national level to litigate cases involving economic, social and cultural rights.

In particular, it aims at giving examples from a large variety of countries and jurisdictions of how courts and other bodies have dealt with the adjudication of these rights.

The Guide also addresses issues that legal practitioners are faced with at the different phases of litigation, from initiating a case and evidence building to the provision of remedies and the enforcement of judicial decisions.

This publication is intended to support everybody that works in the basic education field in South Africa. It aims to provide a common legally grounded planning, monitoring and advocacy framework that is child-centred and recognises the interconnectedness of human rights.

This issue of the INTERIGHTS Bulletin focuses on litigating the right to education in Africa. It includes the following articles:

Litigating the Right to Education: Editorial
Solomon Sacco and Susie Talbot

Africa and the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights
Malcolm Langford and Rebecca Brown

Litigating the Right to Universal Primary Education: Challenges and Prospects
Iain Byrne

The following articles relevant to the justiciability of the right to education can be found in this INTERIGHTS Bulletin:

This article considers the question of the justiciability of social and economic rights from both a conceptual and an experiential perspective. It first reviews some of the major concerns that are frequently raised in relation to whether social and economic rights can, or should be, adjudicated by courts, drawing on commentary from experts and judicial and quasi-judicial bodies considering this question. This is followed by an overview of the growing body of jurisprudence from domestic courts and regional and international bodies that have adjudicated social and economic rights. 

This article critically evaluates case-law developments regarding the right to basic education as enshrined in the South African Constitution and argues that litigation, or at the least the threat of it, plays an important role in the realisation of the right to education.