Swaziland's High Court has ordered the government to adhere to the constitution by providing free education to primary school children.
"I make a declaration that every Swazi child of whatever grade attending primary school is entitled to education free of charge, at no cost and no requirement of any contribution of any such child regarding tuition, supply of textbooks and all inputs that ensure access to education," High Court Judge Mabel Agyemang ruled.
The labour support group, Swaziland National Ex-Miners Workers Union (SNEWA), brought the lawsuit to compel the government to honour the 2005 constitution, promulgated by sub-Saharan Africa's last absolute monarch, King Mswati III.
In February 2009, Mswati said at the opening of parliament that free education was desirable, however, it was not feasible due to budgetary constraints.
Parliamentarians pointed out that free education was already offered to children in the form of government-purchased textbooks and the payment of tuition fees for orphans and vulnerable children (OVC), an argument used by lawyers acting on behalf of government.
'Free means free'
Judge Agyemang rejected this argument, saying: "I reiterate that the context in which the world 'free' appears in Section 29 (6) [of the constitution] as an adjective to describe the word 'education' leaves no ambiguity to the reader.
"It seems to me that the respondents [the government] are seeking to have the court give the words 'free education' an interpretation which will only do violence to the language, will at best be artificial and in reality be absurd," she said.
A government spokesperson declined to comment, but said lawyers were reviewing the decision and had not ruled out appealing it.
The Swaziland Coalition of Concerned Civil Organisations, an umbrella group of human rights groupings, labour organizations and humanitarian aid societies, said they hoped government would abide by the ruling rather than appealing it.
The Times of Swaziland, a local newspaper, said in an editorial after the judge’s decision that the government could afford free education if it shelved unnecessary and expensive "luxury" projects, such as a new national airport.
A former cabinet minister, in office when the constitution was adopted, told IRIN that free education could have been financed by the government, with grant assistance from the European Union, but was put on hold to address the issue of OVC education.
Orphans and vulnerable children
"We were eager to comply with the constitution, but after deliberations it was felt that this project should wait while the OVC bursary fund was clearly ironed out," said the former minister, who declined to be named.
|We were eager to comply with the constitution, but after deliberations it was felt that this project should wait while the OVC bursary fund was clearly ironed out|
Funding for OVC schooling remains problematic; schools are compelled to admit these children, but late or non-payment of their fees by government has created funding shortfalls in schools, leading to the curtailment of educational activities.
More than two years ago, UN Children's Fund (UNICEF), which advocates OVC education, called for a summit of stakeholders to address the problem of school fees, but government has yet to respond. UNICEF has expanded a feeding programme for vulnerable children to include other school-going children.
Jan Sithole, secretary-general of the Swaziland Federation of Trade Unions (SFTU), an umbrella labour body of which SNEWA, the ex-miner's union, is a member, has demanded that the government refund parents who have paid school fees since the constitution came into effect, but civil societies and educationalists have questioned the practicality of this.
Charles Bennett, head of the Swaziland Principals Association, told IRIN: "It's not about text books and tuition only. Parents pay for almost everything, even building the schools; fees pay for water, electricity, gardeners - will government be catering for this expense?"
The court ruling has elicited great anticipation from both parents and child welfare groups. Access to education is fraught with difficulty because 69 percent of the population survive in chronic poverty, according to the UN Development Programme.
Poverty of education
"School fees have always been a problem for parents, and have kept many deserving children from attending classes," Anita Magongo, a primary school teacher in Mbabane, the capital, told IRIN.
|School fees have always been a problem for parents, and have kept many deserving children from attending classes|
"It is common for students to skip a year while a sibling attends school, and they must alternate because of what the parents can afford. This wreaks havoc on a child's education," she said.
Sempiwe Hlope, director of the HIV support organization, Swazis for Positive Living, said HIV/AIDS had "also thrown many children out of school". "Their parents are ill and cannot afford school fees because they cannot hold jobs, or their income is devoted to the purchase of medicines," he said.
According to UNAIDS, about 26 percent of Swaziland's sexually active population are infected.