over school fees row — as it seeks to stop schools from barring indebted learners from final examinations
Moorosi Tsiane
HUMAN rights activists, SECTION 2, have dragged Education and Training Minister, Professor Ntoi Rapapa, to the Constitutional Court, seeking to stop schools from barring learners from sitting for their final examinations because their parents or guardians owe school or examination fees.
The activists argue that punishing children for debts incurred by their parents violates their constitutional right to education, discriminates against learners from disadvantaged backgrounds and undermines the principle that the best interests of children must be protected.
Prof Rapapa, the Assessment Council of Lesotho (ACL), all secondary schools, Minister of Law and Justice Richards Ramoeletsi and Attorney General Rapelang Motsieloa are cited as the first to fifth respondents, respectively.
In his affidavit, SECTION 2 Coordinator for Institutions of Higher Learning, Morapeli Roman Masoto, argues that the Ministry of Education and Training and secondary schools that exclude learners over unpaid examination fees were interfering with their right to education.
Mr Masoto says SECTION 2 is seeking urgent declaratory and interdictory relief against the practice of excluding learners already enrolled in secondary schools from attending classes and sitting their final examinations because their parents or guardians had outstanding school or examination fees.
“I depose to this affidavit in support of an application for urgent declaratory, interdictory and other appropriate relief against the practice whereby learners already enrolled and attending secondary school are excluded from school, and from sitting their final examinations, because of unpaid school or examination fees owed by their parents or guardian,” Mr Masoto says.
He says the central question before the court was whether the law permitted the State, registered secondary schools, examining bodies or any other authority responsible for education to impose educational consequences on children for debts owed by their parents or guardians.
“This application raises one constitutional and statutory question. The question is whether the law of Lesotho permits the State, a registered secondary school, an examining body, or any person or body exercising educational authority, to impose on a child the educational consequences of a debt owed by that child’s parent or guardian.
“I respectfully submit that the answer is no, and that the impugned practice is contrary to statute, inconsistent with the constitutional order, incompatible with the best interests of children, discriminatory based on socio-economic status, and unlawful,” he submits.
Mr Masoto further argues that the constitutional provisions governing socio-economic rights did not mean learners could be denied access to education simply because their parents could not afford to pay fees on time.
He cites section 25 of the Constitution, which provides for the progressive realisation of the principles of state policy, arguing that the provision did not render the rights under Chapter III unenforceable in the courts.
“For lack of doubt, section 25 of the Constitution does not lay down a rule that Chapter III Rights are non-justiciable and/or not enforceable in any Courts. On the contrary, it provides that these rights are budgetary and shall be enforced gradually depending on the country’s economic development and standards of economy. That these rights may be realised via legislation and otherwise.”
Mr Masoto maintains that SECTION 2 is not asking the government to commit additional public funds to learners’ education. Instead, the organisation wants parents to be allowed to settle outstanding school fees gradually, according to their financial circumstances, without their children being deprived of education.
“In casu, the applicants never called on the government to expend any money on the learners’ education. On the contrary, the plea is that the learners’ parents be permitted to pay their school fees gradually depending on the parent’s economic capacity.
“The parents must not be burdened to the extent that is not necessary with the socio-economic implications of education. The duty imposed herein is akin to that imposed by Chapter III Rights namely: that the state must refrain from interfering with the learners right of access to education by expelling them from school,” he submitted.
He argues that section 25 required state organs to progressively realise the right to education for all through appropriate measures, rather than excluding learners whose parents had fallen behind on payments.
“Section 25 requires the organs of the State to be guided by the principles of state policy in performing their functions. In this context, they shall realise education for all progressively, using all appropriate means.
“Realising education progressively necessarily means allowing learners who are already enrolled to remain in school and to sit their examinations while their parents pay fees gradually, according to their means, and not excluding them because of the parents’ arrears,” Mr Masoto says.
SECTION 2 is asking the court to review and set aside decisions to exclude learners from secondary schools without first hearing their parents or considering their socio-economic circumstances.
Mr Masoto wants the court to review the respondents’ decisions under section 119 of the Constitution of Lesotho 1993, and declare that constitutional rights under Chapter III can be enforced in accordance with the country’s development and economic capacity, or where they have been given effect through legislation and other appropriate measures.
Such measures, he argues, could include policies, subsidies, bursaries, scholarships, programmes and projects, as well as allowing learners to continue attending school and writing examinations while their parents arrange to settle outstanding fees.
He also wants the court to declare the respondents’ conduct unconstitutional on the grounds that it violates learners’ right to education and subjects them to discrimination based on their social origin and family backgrounds.
The application further argues that excluding learners from classes and final examinations is inconsistent with the principles of equality, dignity and the protection of children’s best interests.
Mr Masoto is seeking a declaratory order stating that excluding learners whose parents cannot afford school and examination fees violates sections 8, 18, 19, 25 and 28 of the Constitution.
SECTION 2 is also seeking an interdict preventing Prof Rapapa, the ACL and secondary schools from excluding learners from attending classes, registering for public examinations or sitting those examinations because their parents or guardians have failed to pay school or examination fees.
Alternatively, should the court find that additional measures are necessary to address outstanding fees, Mr Masoto wants learners to be allowed to write their examinations, with their results withheld until their parents or guardians settle the debts.
He argued that withholding results should be considered only as a last resort after less restrictive measures had been exhausted.
“Alternatively: the Ministry of Education, schools and the ACL should, as a last resort after exhaustion of less right-intruding measures, withhold learners’ examination results (after allowing all expelled learners to attend and write final examinations) pursuant to a degree of Court as an appropriate and progressive means of realising Secondary and High school education in terms of sections 25 and 28 of the Lesotho Constitution, 1993.”