#SchoolsOnFire : criminal justice responses to protests that impede the right to basic education
Author | Martin Nsibirwa,Ann Skelton |
DOI | 10.10520/EJC-b69be30e8 |
Published date | 01 December 2017 |
Date | 01 December 2017 |
Record Number | iscrime_n62_a5 |
Pages | 39-50 |
39
SA CRIME QUARTERLY NO. 62 • DECEMBER 2017
#SchoolsOnFire
Criminal justice responses to
protests that impede the right
to basic education
* Ann Skelton has a doctorate in law and is a professor at the
University of Pretoria where she holds the UNESCO Chair in
Education Law in Africa. Martin Nsibirwa holds a doctorate
in law and is a senior manager at the South African Human
Rights Commission. The views expressed in the article are his
personal views.
In recent years, schools have borne the brunt of protesters’ frustrations with the lack of access
to services in South Africa. A 2016 investigative hearing by the South African Human Rights
Commission (SAHRC) explored the causes of the protests and examined the failure to prevent
the destruction of school property. It found that no one was held accountable for the protest-
related damage. This article explores the competing constitutionally protected rights of protest and
education. Although the right to protest is central in a democracy, it must be exercised peacefully
with minimal disruptions to the right to education. Protest action that causes destruction should
be criminally sanctioned; however, action that impedes access to education through threats
and intimidation is difficult to deal with in the criminal justice system. This article questions the
applicability of section 3(6) of the South African Schools Act, which makes it an offence to stop
children attending school, and considers the proposed amendments to the Act in light of these
critiques. The article explores possible prosecution relying on the Intimidation Act, and finds
that the Act is under constitutional challenge. The article concludes that the focus on prevention
as contained in the SAHRC report is not misplaced, given the challenges in holding protesters
accountable under criminal law.
Ann Skelton and Martin Nsibirwa*
ann.skelton@up.ac.za
mnsibirwa@gmail.com
http://dx.doi.org/10.17159/2413-3108/2017/v0n62a3090
In 2016 South Africa experienced a crisis
of protest-related actions that affected tens
of thousands of schoolgoing children, the
majority of whom resided in Limpopo province.
In the affected area of Vuwani, children were
unable to attend school for several months.
A total of 34 schools were badly damaged or
destroyed through acts of arson, leaving 42000
children out of school.1 The root cause of this
predicament was a long-standing municipal
boundary demarcation dispute.2
The impact of protest-related actions was
most severe in Vuwani. However, many other
schools in Limpopo, even though not physically
damaged, were unable to function due to
threats against learners and educators. Besides
impeding access to education, this protest
action impacted school feeding programmes,
which provide meals for many needy school-
going children. The estimated losses suffered
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