#SchoolsOnFire: Criminal justice responses to protests that impede the right to basic education

Ann Skelton, Martin Nsibirwa

Abstract


In recent years schools have borne the brunt of protestors’ frustrations about the lack of access to services in South Africa. This article explores the current tensions between the constitutionally guaranteed rights to “assemble peacefully and unarmed” (the right to protest) on the one hand, and the right to basic education, on the other. The article seeks to establish whether the exercise of the right to protest in a manner that hinders the realisation of the right to a basic education should result in criminal prosecution, and if so, whether this means that the right to protest can be justifiably limited in order for the right to basic education to prevail.

The article begins with a brief background to the rights under consideration within the contemporary South African context. Secondly, relevant human rights standards are considered, and the specific provisions which guarantee these rights in South Africa’s Constitution and domestic law are analysed. Thirdly, there is an analysis of case law that guarantees both the right to protest and right to basic education and a discussion of whether, based on available jurisprudence, there are grounds to support the idea that aspects of the right to protest can be limited to allow for the right to basic education to be realized.

The article draws on the report of a national investigative hearing that was conducted by the South African Human Rights Commission during 2016. This article looks beyond the findings of that hearing to consider relevant case law in more detail, and examine the possible criminal prosecutions that may arise from interfering with the right to a basic education, and the implications this has for the balancing of competing constitutional rights.

The article concludes that exercise of the right to protest must be exercised in a lawful manner that does not unreasonably interfere with the right to basic education, failing which it can be justifiably limited, and prosecutions should ensue.


Keywords


protest; right to education; constitutional rights

Full Text:

PDF


DOI: http://dx.doi.org/10.17159/2413-3108/2017/v0n62a3090

Refbacks

  • There are currently no refbacks.

Comments on this article

View all comments


Copyright (c) 2017 Author and Institute for Security Studies

Creative Commons License
This work is licensed under a Creative Commons Attribution 4.0 International License.