Realising the Right to Education in South Africa: The Role of Law Candidate Number: 120316 o m

Mobilisation

As well as facilitating identity construction, the litigation prompted protest action by the pupils. In May 2014, around 50 pupils, supported by Equal Education, picketed outside their education department’s district office. The protest was in direct response to the litigation; more specifically, in response to the fact that the education department had failed to comply with the settlement agreement. It was clear that this was the reasoning behind the protest; one of the pupils was quoted at the time by national newspaper the Mail & Guardian stating this and adding that ‘government doesn’t care about us.’⁷⁶

The motivation behind the picket was further confirmed by interviews with some of the pupils who took part. One pupil who attended the picket, Jonathan, explained why he joined the protest; ‘Even now, when go to court, didn’t work. So we went there.’⁷⁷ Another, Andile, explained his participation by saying; ‘I wanted to hear for myself what the District’s answer would be after they had promised us teachers.’⁷⁸ It is clear from their answers that the failed court case was central to their participation in the protest, providing a crucial point around which to mobilise.
This brings to mind the obervations in Nejaime’s Winning through Losing, in which he argues that litigation loss may actually contribute to the progress of a movement.⁷⁹ His article, like this one, stems from an analytical approach that moves the focus away from the implementation and enforcement of judicial decrees, towards the political and constitutive potential of law.⁸⁰ NeJaime argues that legal mobilisation and cause lawyering scholars often assume that a litigation loss has a demobilising effect. Indeed, McCann argued that ‘eventual defeat in court can sap movement morale, undercut movement bargaining power, and exhaust movement resources’.⁸¹ Of course, in the case of Moshesh, the litigation was not lost; instead the outcome of it, the settlement agreement, proved largely ineffective. Yet many of the points that NeJaime makes about the effect of litigation loss are still relevant here. The disappointment and anger of a failed court case are certainly analogous to that resulting from non-compliance with a settlement agreement. NeJaime argues that litigation loss may raise consciousness and mobilise constituents by inspiring outrage, as well as strengthening resolve and a sense of entitlement.⁸² This seems to have been the case at Moshesh. Yet given that there was no actual litigation loss there, one could argue that this sense of entitlement was all the stronger; the court had publically validated their grievances with the District, but still nothing had been done. Both Jonathan and Andile, in their statements above, laid the blame squarely at the feet of the District for not complying. In our conversations, there was a palpable sense of anger and disappointment. Another pupil, Makgotla, said that he joined the protest ‘to take an action to bring a change. We can’t fight for change sitting down. We wanted to pressure the District to bring more qualified teachers for subjects like maths and physics.’⁸³
The fact that the District had not complied with the court settlement, then, created a sense of injustice that actually compelled pupils to take action themselves. The non-compliance of the District led pupils to push for accountability, seen in Andile’s statement that he wanted an answer from the District, an explanation as to why they had not done what they promised. Indeed, the theme of broken promises was at the core of the conversations about the Protest; ‘I know that the District agreed to help in court, but they didn’t do what they promised.’⁸⁴ Thus the litigation provided a rallying point around which the pupils could mobilise; despite, or perhaps more rightly, because of, the fact that it did not achieve what it set out to do. The failure of the Settlement Agreement so far to create a mechanism of accountability and hold the District responsible increased mobilisation at the grassroots.
The protest was a symbol of the growingly coherent identity of the movement at Moshesh; as Melucci argues, actors produce collective action because they are able to define themselves and their relationship within the environment (other actors, available resources, opportunities and obstacles).⁸⁵ However, it also enabled the pupils to further consolidate their identity; a public demonstration is a collective activity that confirms common interests, shared grievances, and common bonds. The fact that Equal Education assisted the pupils in organising the protest further aided the identity-building process. The picket garnered national media attention, helping the pupils to develop a sense of dual identity; as activists fighting for their school, but also as Equalisers fighting for education across South Africa.

Framing

We have seen the impact of the litigation in aiding to create a sense of oppositional ‘us’ and ‘them’ identity in Moshesh, and in helping to mobilise the pupils into protest. However, another crucial way that the law can impact social movements is through legal framing. The law, with its clear narrative of fault that apportions blame to specific actors, can be immensely helpful to social movements. As Marshall argues, it provides individuals with a powerful set of interpretive tools in the disputing process.⁸⁶
These tools have been utilised by the Equalisers at Moshesh in order to navigate their own perceptions of the problems at the school, the movement as a whole and their place within it.⁸⁷ Even without any substantive legal knowledge, the Equalisers I spoke to drew on legal concepts to frame and organise their ideas surrounding the movement. As Pedriana asserts; ‘law is itself a language system. The vernacular staples of law- rights, duties, privileges, prohibitions, remedies, and so on- construct and express ideas of social conflict and their resolution.’⁸⁸ Drawing on a legal framework thus often invokes the concept of rights. I argue that the litigation has provided pupils within the movement with the tools to frame their problems through a legal framework, and so to begin developing a rights consciousness.
Drawing on a legal framework has enabled the pupils to transform the situation in Moshesh from a catalogue of problems into a dispute that aims to solve them. Felstiner, Abel and Sarat have broken down the process in which a grievance becomes a dispute into three stages; naming, blaming and claiming.⁸⁹ It was fascinating to see evidence of all three stages in the interviews with the learners.
The first step in this series of transformations is the acknowledgment that a particular experience has been injurious; the ‘naming’ phase. All of the interviewees set out the problems in the school, and the pressing need to solve them. Several of the pupils said that they wanted to ‘fix’ their school, and listed the things that were wrong with it; ‘we have no teachers and no textbooks.’⁹⁰ They also clearly understood the ways in which their poor quality of education was harming them;
‘Education is the key to success. Without education we have nothing. [With a good education] we can develop, and get free. Education makes things easy.’⁹¹
‘In South Africa, there are no jobs for uneducated people.’⁹²
Recognising that there is a problem, and being able to clearly articulate it, is crucial to the process of dispute transformation.
The next stage is ‘claiming’, in which a perceived injurious experience is transformed into a grievance, with an aspect of fault. This is where the law, and a legal framing can provide powerful resources to a social movement. The court case at Moshesh clearly laid the blame with government institutions; the respondents ranged from the District on a local level right up to the National Minister for Education, Angie Motshekga.⁹³ It seemed evident that even without detailed knowledge of the court case, the Equalisers had absorbed this notion of responsibility. When I asked who was responsible for ensuring that they had a quality education, all of the interviewees stated that it was an obligation of government:
‘The government is supposed to be taking care of the schools. They’re not doing that and it’s no good.’⁹⁴
‘The blame is with the district and the government. The government workers don’t function well; there is so much corruption.’⁹⁵
‘The government must have a role which is why we protested for faster help from the district.’⁹⁶
That the pupils held the government responsible for their failed schooling is not to be taken for granted. In such a remote corner of the Eastern Cape, the notion of government seems very distant and removed. For example, the village that Moshesh is situated in, Queen’s Mercy, is still governed by a chief, who owns all of the land. Villagers pay a tithe to him in order to live there. Democracy seems to have barely penetrated; some of the local women EE activists spoke to still hold onto apartheid-era ideas despite twenty years of constitutional democracy. One local lady was shocked to discover that I had been regularly cooking meals for the (black, Xhosa) EE activists when I was white. Thus the attribution of democratic accountability to the South African government by pupils at Moshesh is very significant.

Indeed, that pupils directly held the government accountable for their education indicates the beginning of a rights consciousness. As the United Nations Office of the High Commissioner for Human Rights asserts, accountability is a cornerstone of the human rights framework.⁹⁷ After all, there can be no meaningful rights without responsibilities; human rights are the rights and freedoms to which all are entitled by virtue of being human, whilst accountability ensures that such rights are upheld by assigning duties to those with the power to enforce such rights. The assigning of responsibility (‘the blame is with the District and the Government’) and the demand for answerability (‘I wanted to hear what the District’s answer would be after they had promised us teachers’) are both crucial to the notion of accountability.

For the notion of accountability to be effective, there must also be a third element to it; that of enforceability. As the United Nations defines it, enforceability requires public institutions to put mechanisms in place to ensure that public officials and institutions comply with established standards, imposing sanctions and remedial action in the event of non-compliance.⁹⁸ The law and litigation are often central agents in the process. Consequently, a legal framing can be crucial to develop an understanding of the need for enforceability. The notion of enforceability ties in neatly with the final transformation that Felstiner, Abel and Sarat explore; that of claiming; asking for a remedy from the person or entity that is believed to be responsible.⁹⁹ In Moshesh, the Court Case directly facilitated the final transformation, as ten pupils submitted affidavits. The Protest was also a striking example of the claiming of rights, which was prompted by the litigation. In the interviews, there was a real sense of determination, as well as a view of how to claim the right to a quality education through fighting for accountability. Jonathan explained the idea behind the Court Case;
‘It was because of the situation; the problems with the SBG, the teachers, textbooks and the principal. We went to make the department do things. To make the district make a movement.’¹⁰⁰
Jonathan’s words show an understanding that the law can be used as an agent of enforceability to ensure accountability, even without detailed knowledge of how this worked in practice. Interestingly, he expressed a faith in the law to fix the problem despite the fact that the initial settlement agreement had not been abided by, stating that he would like to see the Court Case happen again.¹⁰¹ Other pupils also demonstrated the third transformation of claiming, by explicitly stating what they wanted to do to take the movement forward;
‘We can write a letter to the District and then to the government.’¹⁰²
‘We can make the government listen by writing letters and going to the media.’¹⁰³
Evidently, the ideas for redress were not always of a legal nature; but the very notion of enforceability is from the world of law, and a cornerstone of human rights theory.
Without a doubt, the imprint of law was present in the interviews, expressed in the way that the pupils used a legal framing to interpret and organise their narrative. However, they also referred to the law more explicitly, drawing directly upon notions of legal standards as a way of ensuring adequate educational provision. Several pupils, for example, referred to the need for Norms and Standards in education;
[Explaining what the government should do to improve education]
‘They should implement Norms and Standards.’¹⁰⁴
‘Since we had Norms and Standards in South Africa we must get quality education.’¹⁰⁵
‘[The government] must implement all the things that should be in school such as teachers and textbooks.’¹⁰⁶
A grasp of the need for established standards of ‘all the things that should be in school’ demonstrates a substantial comprehension of the notion of enforceability, which is central to rights consciousness.
Indeed other crucial pillars of human rights, such as universality and equality, were often present in my conversations with the pupils. For example, Tiisetso said that she joined the movement ‘Because I want my school to look like all other functioning schools.’¹⁰⁷Another pupil, Makgotla, said that he appreciated the role of EE because ‘they make sure that education is equal across all schools.’¹⁰⁸ Phetoho even explicitly said that he joined the movement ‘to fight for our rights.’¹⁰⁹
One could argue that using a legal framework to interpret grievances can facilitate a rights consciousness. In Moshesh, the litigation provided the impetus to allow the pupils to interpret their problems with a legal framing. This in turn gave the pupils access to the central concepts of human rights, contributing to the development of a rights consciousness. Merry’s important article ‘Rights Talk and the Experience of Law’ argues that the contribution of law is absolutely crucial in the process of how a person may come to be a ‘rights-bearing subject’; that is to understand their problems in terms of rights.¹¹⁰ Merry contends that the successful adoption of a rights consciousness actually requires ‘experiences with the legal system which confirm that subjectivity.’¹¹¹ In Moshesh, experience with the legal system through the Court Case has certainly contributed to the adoption of a rights consciousness by the learners. However, it seems that the situation is perhaps more complex than Merry originally argued. For in the case of Moshesh, one could argue that the experience with the legal system actually did not in itself confirm the power of the right to education, given that the settlement agreement did not achieve what it set out to. Yet despite, or perhaps because of this, pupils still held on to their belief in the movement and in their right to education.
This is where the role of Equal Education and the Equal Education Law Centre was crucial. Being represented by EE and EELC was evidently a tremendous source of support to all the pupils;
‘EE can stand up for us.’¹¹²
‘EE is one that can be of help to us; it can find out what delays the district and government from delivering what they have been promising us.’¹¹³
However, none of the pupils saw EE or the EELC as an organisation that would do the work for them; instead the pupils depicted it more as an intermediary organisation who could help them to navigate the relationship between themselves and the government. This is crucial, as it shows that the use of intermediary organisations, particularly legally-oriented ones, is not disempowering to individuals within social movements. On the contrary, all of the pupils I spoke to seemed motivated and determined, taking on a large amount of the responsibility to create change upon themselves and seeing EE and the EELC largely as enablers. Motsumi explained why he became involved in the movement;
‘I saw there was a problem and wanted to fix it. EE can help us do that.’ ¹¹⁴
Another pupil, Makgotla, said that he became an Equaliser because;

‘I saw that being an Equaliser can bring change. I wanted to act as an activist for my school.’¹¹⁵

Mamello even placed the collective responsibility for improving education on the pupils themselves, adding ‘I don’t see why we shouldn’t act on the problem.’¹¹⁶
Perhaps, rather than a successful encounter with the legal system being crucial to developing a rights consciousness, as Merry argues, any encounter with the legal system can help. As we have seen, despite the fact that the settlement agreement has so far not been effective, the pupils at Moshesh were still able to create a coherent collective identity, mobilise into protest, and develop a rights consciousness. The ongoing support of EE and the EELC have played a crucial role in facilitating this. Yet it was the litigation that set the ball rolling; as Lisa Draga, attorney at the EELC stated, in a context of virtual immobility, litigation can sometimes work as a ‘lever’ to get things moving on the ground.¹¹⁷