X. SOUTH AFRICA'S OBLIGATIONS UNDER INTERNATIONAL AND NATIONAL LAW
International law requires states to address persistent violations of human rights and take measures to prevent their occurrence. With respect to violations of bodily integrity, states have a duty to prosecute abuse, whether the violation is committed by an agent of the state or a private citizen.300 When states routinely fail to respond to evidence of rape or sexual assault of women and girls, they send the message that such attacks can be committed with impunity.301 In so doing, states fail to take the minimum steps necessary to protect the right of women and girls to physical integrity or even life.302 When a state tolerates violations of the bodily integrity of female students in educational settings, it allows gender-based violence to erect a discriminatory barrier to the ability of female students to enjoy their right to education.
Sexual Violence as Discrimination
International law requires South Africa to ensure that women are able to enjoy basic human rights and fundamental freedoms on an equal basis with men.303 Through its 1995 ratification of the U.N. Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), South Africa has assumed the obligation to "pursue by all appropriate means and without delay a policy of eliminating discrimination against women `by refraining' from engaging in any act or practice of discrimination against women."304 To this end South Africa must ensure that public authorities and institutions act in conformity with the obligation not to discriminate against women, including by adopting legislative or other measures to prohibit discrimination, and by ensuring through competent national tribunals and other public institutions the effective protection of women against any act of discrimination.305
The U.N. Committee on the Elimination of Discrimination Against Women, established under CEDAW, has noted that "gender-based violence is a form of discrimination which seriously inhibits women's ability to enjoy rights and freedoms on a basis of equality with men." The committee also stated that the general prohibition of gender discrimination includes gender-based violence. Gender-based violence is violence that is directed against a woman because she is a woman, or which affects women disproportionately. Gender-based violence includes acts that inflict physical, mental, or sexual harm or suffering, threats of such acts, coercion, or other deprivations of liberty.306 Similarly, article 34 of the Convention on the Rights of the Child requires state parties to undertake to protect the child from all forms of sexual exploitation and sexual abuse.
As illustrated through their testimonies, many South African girls have suffered great harm at the hands of their male teachers and classmates. The remedies available to them are usually inadequate or nonexistent. Sexual violence is a form of gender discrimination, and South Africa is obligated to take all appropriate measures to eliminate violence against girls as against women more generally. This is especially true where teachers, who are government agents, are implicated. The government has an obligation to take meaningful steps to prevent teachers from committing acts of violence against students, and to investigate and prosecute teachers who commit acts of violence against school children. Schools, as public institutions, are responsible for reporting crimes committed against students. Furthermore, the systematic failure of the state to hold students accountable for acts of violence against their classmates is itself a violation of human rights law.
The obligations enumerated by the CEDAW Committee extend beyond the justice system and encompass preventive and protective measures including counseling and support services. 307 This would include provision of medical and psychological assistance to girls who are victims of violence. Also in line with these principles would be the provision of medical assistance to victims of sexual violence consistent with the prevailing best practice on post HIV/AIDS-exposure prophylaxis to decrease the likelihood of contracting the virus.
The Right to Nondiscriminatory Education
Education is recognized internationally as a fundamental right for all children. Moreover, a state that provides an education system for children cannot provide schooling in a discriminatory manner. A number of international treaties, to which the South African government has acceded, recognize education as a fundamental right.308 Each treaty includes nondiscrimination language such that the right to education must be ensured for all children. Consistent with nondiscrimination provisions of international human rights treaties, when a state provides education for its children, it may not arbitrarily deny education to particular groups of children. According to international legal standards, no child should be denied an education on the basis of race, color, sex, language, religion, national or social origin, property or birth.
The right to education is enshrined in article 26 of the Universal Declaration of Human Rights, which provides that: "Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory." The International Covenant on Economic, Social and Cultural Rights (ICESCR), which South Africa has signed, requires free and compulsory primary education and has a broad nondiscrimination clause.309 Article 13(1) of the ICESCR states that: "The States Parties to the present Covenant recognize the right of everyone to education."310
The Convention on the Rights of the Child, article 28, guarantees "the right of the child to education" as a fundamental human right. The convention requires states to endeavor "with a view to achieving [the right to education] progressively and on the basis of equal opportunity" to provide free and compulsory primary education available to all. It calls upon states to make forms of secondary education available and accessible to every child, and to take measure to encourage regular attendance at schools and reduce dropout rates.311 Similarly, CEDAW acknowledges the existence of a right to education and calls for states to dismantle barriers that block access to education for women.312
International law thus requires that a state providing education to its citizens must assure equal access to education for all its citizens. Women and girls must be able to enjoy education on equal terms with men and boys. In addition to requiring the provision of elementary education, the Universal Declaration of Human Rights and the ICESCR prohibit discrimination in all matters they address, including the provision of education. Article 2(2) of the ICESCR provides: "The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property birth or other status." Article 3 focuses on women in particular: "The States Parties to the present Covenant undertake to ensure the equal rights of men and women to the enjoyment of all economic, social and cultural rights set forth in the present Covenant."
Consistent with international legal standards, South African constitutional law enshrines the right to bodily and psychological integrity and the right to life, and recognizes the inherent dignity of all human beings and the right to have that dignity respected and protected. The South African constitution prohibits unfair discrimination against anyone directly or indirectly on the basis of sex, gender, or pregnancy.313 The constitution also guarantees the right to a basic education, including adult basic education. 314
National legislation makes school attendance compulsory for South African children.315 Pursuant to the South African Schools Act, "a public school must admit learners and serve their educational requirements without unfairly discriminating in any way." Because the government makes education compulsory for all, it cannot discriminate in the provision of public schooling.
The South African government is obligated to provide an education system that does not discriminate on the basis of sex pursuant to international human rights treaties it has ratified as well as national legislation it has promulgated. Failure to prevent and redress persistent gender-based violence in all its forms-from rape to sexual harassment-operates as a de facto discriminatory deprivation of the right to education for girl children in violation of international and national legal obligations.
The purpose of education, as enshrined in the Convention on the Rights of the Child, is to foster development of the child's personality, talent, and mental and physical abilities to their fullest potential to prepare him or her for responsible life in a free society, in the spirit of understanding, peace, tolerance, equality of the sexes, and friendship among all peoples.316 Unchallenged gender-based violence in schools impedes the ability of all children to attain the educational objectives set forth in the convention. Where gender-based violence occurring in educational settings is not effectively halted and prosecuted, the enjoyment by girls of the fundamental human right to education on a basis of equality with others is impaired.
300 Article 2 of the International Covenant on Civil and Political Rights (ICCPR) requires governments to provide an effective remedy for abuses and to ensure the rights to life and security of the person of all individuals in their jurisdiction, without distinction of any kind including sex. Article 3 of the ICCPR provides: "The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant." Article 6 of the ICCPR provides, in pertinent part, that: "Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life." Article 9 of the ICCPR provides, in pertinent part, that: "Everyone has the right to liberty and security of person."
301 For a more detailed discussion of South Africa's obligations under international law, see Human Rights Watch, Violence Against Women in South Africa, pp. 39-43.
302 To the extent that this failure reflects discrimination on the basis of gender and/or race, it also constitutes a violation of the state's international obligation to guarantee equal protection of the law.
303 CEDAW generally prohibits discrimination against women by making impermissible "any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women. . . on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field."
304 CEDAW, art. 2(d).
305 Article 4 of the Declaration on the Elimination of Violence Against Women, adopted by the U.N. General Assembly in 1994, calls on states to "pursue by all appropriate means and without delay a policy of eliminating violence against women" and, among other things, to "exercise due diligence to prevent, investigate and in accordance with national legislation, punish acts of violence against women, whether those acts are perpetrated by the State or by private persons." Declaration on the Elimination of Violence Against Women, GAOR, 48th Sess., U.N. Document A/Res/48/104/1994, February 23, 1994. A U.N. declaration is a non-binding resolution which sets out a common international standard that states should follow.
306 Article 1 of the Declaration on the Elimination of Violence Against Women defines violence against women as "any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life." Pursuant to Article 2 of the Declaration, the definition further includes, but is not limited to:
a. Physical, sexual and psychological violence occurring in the family, including battering, sexual abuse of female children in the household, dowry-related violence, martial rape, female genital mutilation and other traditional practices harmful to women, non-spousal violence and violence related to exploitation;
b. Physical, sexual and psychological violence occurring within the general community, including rape, sexual abuse, sexual harassment and intimidation at work, in education institutions and elsewhere, trafficking in women and forced prostitution.
c. Physical, sexual and psychological violence perpetrated or condoned by the State, wherever it occurs.
307 In 1992, the CEDAW Committee adopted a general recommendation and comments on states' obligations under CEDAW that set forth the elements of potentially effective remedies to address the problem of violence against women as follows:
a. Effective legal measures, including penal sanctions, civil remedies and compensatory provisions to protect women against all kinds of violence, including inter alia violence and abuse in the family, sexual assault and sexual harassment in the workplace;
b. Preventive measures, including public information and education programmes to change attitudes concerning the roles and status of men and women;
c. Protective measures, including refuges, counseling, rehabilitation and support services for women who are the victims of violence or who are at risk of violence.
Committee on the Elimination of All Forms of Violence Against Women, "Violence Against Women," General Recommendation no. 19 (eleventh session, 1992), U.N. Document CEDAW/C/1992/L.1/Add.15.
308 Various regional treaties also establish education as a fundamental right. For instance, the African Charter on Human and Peoples' Rights guarantees a broad right to education in article 17 (1), which provides that "Every individual shall have the right to education." Article 17 of the charter provides further that the right to education must be guaranteed without distinction as to sex.
309 Although the International Covenant on Civil and Political Rights (ICCPR), which South Africa has ratified, does not list primary education as a core civil and political right, article 24 of the ICCPR guarantees each child "the right to such measures of protection as are required by his status as a minor on the part of his family society and the State." This provision of article 24 has been interpreted to include education sufficient to enable each child to develop his or her capacities and enjoy civil and political rights as a measure of protection. U.N. Human Rights Committee, General Comment no. 17, para. 3. On the right to education in international law, see, generally, Manfred Nowak, "The Right to Education," in Asbjorn Eide et al. (eds.) Economic, Social, and Cultural Rights (1995), pp. 189-211.
310 South Africa signed the ICESCR on October 3, 1994, but has not yet ratified the treaty.
311 South Africa ratified the CRC on December 15, 1995.
312 Article 10 of CEDAW provides that state parties ensure equality of education between women and men at all levels from preschool to professional as follows:
State Parties shall take all appropriate measures to eliminate discrimination against women in order to ensure the equal rights with men in the field of education and in particular to ensure, on a basis of equality of men and women:
a. The same conditions for career and vocational guidance, for access to studies and for the achievement of diplomas in educational establishments of all categories in rural as well as in urban areas; this equality shall be ensured in preschool, general, technical, professional and higher technical education, as well as all types of vocational training;
b. Access to the same curricula, the same examinations, teaching staff with qualifications of the same standard and school premises and equipment of the same quality;
c. The elimination of any stereotyped concept of the roles of men and women at all levels and in all forms of education...in particular, by the revision of textbooks and school programmes and the adaptation of teaching methods;
d. The same opportunities to benefit from scholarships and other study grants.
313 Act No. 108 of 1996, Section 9.
314 Ibid., Section 29.
315 South African Schools Act No. 84 of 1996, Section 3(1) provides:
Every parent must cause every learner for whom he or she is responsible to attend a school from the first school day of the year in which such learner reaches the age of seven years until the last school day of the year in which such learner reaches the age of 15 years or the ninth grade, whichever occurs first.
316 Convention on the Rights of the Child, article 29.