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Public School Sanitation: A pit of contradictions

By Khaya Sithole
Collaboration between the state and the private sector has the wonderful ability to unlock various initiatives that would otherwise take forever to complete. In relation to social and public infrastructure, a country with a strain on its economic resources may end up with no other plan than to partner with the private sector. This is why the recent announcement regarding the Safe Schools initiative involving the government and the public sector is to be welcomed. As part of this initiative, the private sector will partner with the government – particularly the Department of Basic Education – to assist in the eradication of pit toilets in public schools.g

It is naturally the country’s enduring shame that we still have students losing their lives in a pool of human waste simply because the right and adequate infrastructure has not been created in their schools. Whilst Michael Komape’s case is the most prominent one of them all, there are far too many incidences of schoolchildren being exposed to subhuman conditions. These infrastructure problems have long been identified in public schools. Whilst the South African Schools Act introduced the concept of Norms and Standards as far back as 2007, the Minister of Basic Education – quite bizarrely – decided that the Act did not oblige her to publish the Norms and Standards. Rather, she argued that the decision to publish the Norms and Standards was entirely at her discretion. After much haggling between the Minister and Equal Education – which sought to persuade her that not only was the publication of Norms and Standards a necessity for everyone to know what they were entitled to but also that such purported discretion simply made no logic – the Minister still refused until she was pursued in court by Equal Education.
This led to the eventual publication of the Norms and Standards in 2013 which outlined the basic infrastructure requirements for each school. This included a commitment that by 29 November 2016, no school under the custody of the government would be without water, electricity or sanitation. Remarkably, the department then conspired to miss that deadline. So then they were called to account and explain why they had delayed the rollout of basic infrastructure requirements throughout the public education system. In a landmark case in the Bisho High Court, the fact that Norms and Standards are central to the provision of the right to education was specifically highlighted by Equal Education. Naturally, if one is to deliver a Constitutional right to basic education to young children across the country, it is clear that the enabling instruments – including the elements articulated in the Norms and Standards – have to be delivered timeously. Regrettably, the Minister of Basic Education keeps advancing arguments to the effect that her hands are tied as she cannot direct or facilitate other organs of state that are critical to infrastructure rollout, to perform their tasks expeditiously.
In the Bisho judgment, the judge dismissed this contention as it creates an accountability vacuum. Such a vacuum arises since everyone acknowledges that public schools fall under the custody of the Department of Basic Education. For the Department to argue that it is unable to persuade other organs of state to act timeously in facilitating infrastructure rollout creates a paralysis where one school would technically have to approach an unknown number of state organs and coordinate their collective efforts at rolling out infrastructure. This is simply illogical and the Bisho judgment rightly points out that the buck has to stop with the Minister of Basic Education. Given the reality that the schoolchildren affected by this impasse are predominantly black and poor, it is morally objectionable that a government that claims to be pro-poor would take such a stance.
So when the President announced the new initiative this week it would have been important for all those in attendance to ask him to reconcile the 2 positions taken by the government in this matter. Since the crux of the Minister’s appeal on the Bisho judgment is that nothing compels her to accelerate infrastructure delivery, it is unclear how the new partnership will convince her otherwise. And since the Minister has appealed the Bisho judgment the assumption is that she expects the superior courts to rule in her favor – in other words – agree with her that urgency is not paramount to the infrastructure rollout. Should that materialise (heaven forbid), would the new partnership then adopt the same lethargy already prevalent in the Department? With the exception of 3 activists from Equal Education that staged a silent protest, no one asked these questions unfortunately at the swanky Sheraton Hotel.
Whilst collaborations with the private sector are indeed welcome, one also has to remember that the accountability mechanisms differ significantly between the state and private enterprise. Whilst we can all use the Constitution to force the Minister to do the bare minimum, this has regrettably had to be facilitated through the courts with Equal Education, Section27 and Basic Education for All, in particular, championing the cause of poor schoolchildren in the face of state intransigence. The private sector on the other hand – their good intentions notwithstanding – have no Constitutional obligation to ensure the realisation of the right to education as envisaged in section 29. And given the well-known bureaucratic blocks that pervade the civil service, far too many private sector providers have found it easy to walk away.
In this case, the private sector (through the National Education Collaboration Trust) and the Nelson Mandela Foundation have taken the plunge and committed to this partnership. And I strongly believe that they are indeed committed to the accelerated rollout of sanitation infrastructure in public schools. I am just concerned that should Angie Motshekga win her appeal to the Bisho judgment, they will be stranded without a partner.
And an entire generation of black school children will be condemned to the permanent risk of losing their lives, not due to the mere passage of age, but rather thanks to the simple task of trying to get to a toilet everyday…

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