Right to education
In continuing with the focus on economic, social and cultural rights as obtained in international human rights law, this week’s article will concentrate on the right to education.
Education develops skills essential to daily living, rational judgment and reasoning and the ability to argue right from wrong. Essentially, the ultimate aim of education is to help an individual navigate the vicissitudes of life, as well as contribute to the development of society.
The essence of education in helping individuals attain the highest sense of development in all aspects of human endeavour is, therefore, positively in sync with the ideals and objectives of the human rights project.
The backbone of the right to education is Article 26 of the Universal Declaration of Human Rights(UDHR). It provides for a general right to receive an education, a guarantee to the paramountcy of the rights of parents concerning the education of their children and an elaboration of the general aims of education.
These broad norms have been transformed into legally binding provisions by Articles 13 and 14 of the International Covenant on Economic, Social and Cultural Rights (ICESR).
It has also been enshrined in all the major regional human rights treaties ― the European Convention on Human Rights, the American Convention on Human Rights and, crucially for our purposes, Article 17 of the African Charter on Human and People’s Rights (ACHPR).
Features
The main features of the right to education are its availability and accessibility: states have a positive duty to make education available and accessible to all citizens.
It has two dimensions: a right to receive an education and the freedom of parents to choose which type of public education they want their children to receive, whether state-organised or privately owned.
The right also encompasses the right of parents to have their children receive an education grounded in their own moral and religious beliefs.
A corollary of this dimension of the right to education is the freedom given to organisations, companies and churches to establish educational institutions based and steeped in their religious and social beliefs.
This is manifested in various religious establishments founding educational institutions to educate students.
Extent
UN General Comment 13 (General Comments elaborate on the extent, meaning and application of UN treaty rights) explains the main features of the right to education to be availability, accessibility, acceptability and adaptability.
The right to education in Ghana is anchored in Articles 25 and 38 of the 1992 Constitution. While Article 25 is a general injunctive right to education to all Ghanaians, Article 38, following in the general trajectory of the interpretation of economic, social and cultural rights, directs that the enjoyment of the right is dependent on its feasibility and also subject to availability of resources.
The question of whether the right to education is justiciable has been emphatically answered in the cases of Federation of Youth Association of Ghana (FEDYAG) No.2 v the Public Universities of Ghana and others and the Progressive People’s Party v the Attorney General.
Both cases established that the right is justiciable, that is, citizens can go to court to enforce it. However, the court, in accepting the justiciability argument, stopped short of giving absolute status to the right to education.
The Supreme Court declared that a holistic interpretation of the combined effect of Article 25(1) and 38(1) of the Constitution shows that the obligation of the state should at least provide equal educational facilities and opportunities to all citizens as far as practicable.
The frontiers of the right to education and indeed most economic, social and cultural rights, could be pushed even further. Lawyers and activists should invent innovative arguments to impress on the courts to adopt a teleological approach to the interpretation of economic, social and cultural rights.
For example, arguments could be marshalled relying on the international treaties Ghana has ratified which guarantee the right to education, to compel successive governments to implement the right.
In this pursuit, greater reliance could be put on Article 33(5) of the Constitution, which allows the courts of Ghana to admit international treaties and conventions that are considered to be inherent in democracies and which are intended to secure the freedom and dignity of man.
The writer is a lawyer.
E-mail: georgebshaw1@gmail.com
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System Summary
Right to education
The article explores the right to education as an essential human right, supported by international treaties and Ghana’s 1992 Constitution.
It highlights the state’s duty to ensure education is available and accessible to all, and the freedom for parents to choose their children’s education.
The Supreme Court of Ghana has upheld the justiciability of this right, allowing citizens to enforce it in court. The article calls for innovative legal strategies to strengthen and implement this right further.