BILL WATCH 20/2019
[15th April 2019]
The Education Amendment Bill
The parliamentary Portfolio Committee on Primary and Secondary Education is currently holding public hearings on the Education Amendment Bill, which was published earlier this year. The Bill can be found on Veritas’s website [link], as can the dates and venues of the public hearings [link].
In this Bill Watch Veritas analyses the Bill in order to assist the Committee and interested parties debate it at the public hearings.
Education and the Constitution
The main purpose of the Bill, according to its memorandum, is to bring the Education Act into line with the Constitution. Before looking at the Bill, therefore, we should see what the Constitution says about education.
Section 27 of the Constitution provides for the State to take all practical measures to promote free and compulsory education for children, as well as higher and tertiary education. The State must also ensure that girls are afforded the same educational opportunities as boys.
Section 75 states that every citizen and permanent resident of Zimbabwe has a right to a basic State-funded education, including adult basic education, as well as further education which the State must make progressively available and accessible. The section goes on to say that everyone has the right to establish and maintain “independent educational institutions of reasonable standards”, but they must not discriminate on any ground prohibited by the Constitution. A law can provide for their registration and for their closure if they do not meet “reasonable standards prescribed for registration” [section 75(3) of the Constitution].
The Education Act
The Bill seeks to amend the Education Act, which deals with education in schools, correspondence colleges and what are called “independent colleges”, namely institutions such as Speciss which provide educational programmes that supplement or substitute for school education. The Act does not cover tertiary educational institutions such as universities ‒ though the definition of “independent college” in section 39 is so broad and vague that it might cover universities and polytechnics.
The Act sets out guiding principles for educational policy, the principal one being that children have a right to school education; it provides for the registration of non-government schools and the establishment and maintenance of government schools; it sets up national and provincial education advisory boards; and generally tries to ensure, so far as legislation can, that children in Zimbabwe are provided with a reasonable education.
Bringing the Education Act into Line with the Constitution
The Act already complies with the Constitution in many respects ‒ for example, it declares that every child has a right to school education without discrimination ‒ but the Bill sets out to make it even more compliant:
1. Admission to schools: non-discrimination
In terms of section 4 of the Act children must be admitted to schools without discrimination on the grounds of their race, tribe, origin, political opinions, colour, creed or gender. Clause 3 of the Bill will add other prohibited grounds: nationality, class, custom, culture, marital status [yes, really], pregnancy, social status and legitimacy.
2. Right to state-funded education
Clause 4 of the Bill will insert a new section 5 in the Act which will give every child the right to basic state funded education. While the new clause follows the wording of section 75 of the Constitution, it is not very clear:
The term “basic state funded education” suggests the State must pay for the education, but clause 2 of the Bill will insert a definition of the term into the Act which makes no mention at all of State funding. Section 13 of the Act, moreover, will continue to allow the State to fix fees for tuition at government schools, and non-government schools will continue to be able to fix fees, though subject to approval from the National Incomes and Pricing Commission [which no longer exists, as explained below].
Section 4(1) of the Act already gives every child a right to school education; is “school education” the same as basic state funded education? If not, what is the difference?
3. Admission to schools: non-payment of fees or pregnancy
A new section 68D, to be inserted in the Act by clause 15, will prohibit schools, government and non-government alike, from excluding pupils on the grounds of either non-payment of fees or of pregnancy. While pregnant girls should be allowed to complete their education no matter what school they attend, it seems extraordinary for the Bill to compel non-government schools, which rely on fees for their very existence, to continue providing education to pupils whose parents refuse to pay for their education.
4. Further and adult education
Clause 10 of the Bill will insert a provision in the Act obliging schools to “endeavour to offer non-formal education including adult education”. This provision, though extremely vague, is clearly intended to give effect to section 75(1) of the Constitution which gives all citizens and permanent residents a right to adult basic education and “further education”.
5. Teaching of official languages in schools
Clause 12 of the Bill will insert a new section 62 into the Act which will urge schools to teach every officially recognised language, though their language of instruction will have to be the language of examination (which, in the case of public examinations, is usually English). The new section goes on to say that early childhood education should normally be conducted in the children’s mother tongue. Note: there are sixteen officially recognised languages in the Constitution – so this clause will place a very heavy burden on schools.
6. Discipline and corporal punishment
Section 15 of the Bill will insert a new section in the Act which will:
oblige school authorities to draw up disciplinary policies laying down punishments that are moderate, reasonable and proportionate,
prohibit treatment that infringes pupils’ dignity, and
prohibit teachers from “beating” children.
If the new section is intended to ban all corporal punishment in schools it doesn’t say so; there are forms of physical abuse that do not amount “beating” and these are not mentioned. Also, only teachers are prohibited from beating children: non-teaching staff apparently will be able to thrash children with impunity.
7. Pupils with disabilities
A new section 68B will oblige registered schools, funds permitting, to provide infrastructure suitable for pupils with disabilities. The section does not indicate what disabilities are intended to be covered, nor what sort of infrastructure will have to be provided. Only non-government schools are registered under the Act, so government schools will not have to comply with the new section. There seems no reason to exempt them.
Other Amendments to be Made by the Bill
In addition to bringing the Education Act into line with the Constitution, the Bill will make several other amendments to it:
Clause 6 will try to clarify what happens when a child cannot be enrolled in the government school nearest to where he or she lives because there are no vacancies there [in fact the clause brings no clarification because it will insert two provisos that are incomprehensible].
Clause 9 will insert a provision requiring non-government schools to pay registration and annual fees. “Faith-based schools” will be exempted, but it is not clear what those schools are: mission schools, probably; but what about private trust schools established by religious organisations?
Under Clause 11 the National Education Advisory Board will have to meet at least once every three months.
Clauses 13 and 14 will give the Minister power to make regulations for the appointment of sexual and reproductive health personnel in schools, for the use of emerging technologies, and for feeding schemes.
Clause 15 will insert a new section 68C in the Act establishing a Basic Education Fund to finance infrastructure [presumably of schools] and to pay fees for pupils who cannot afford them.
Defects in the Bill
Regrettably the Bill is carelessly drafted and suffers from defects and omissions ‒ apart from those already mentioned ‒ some of which will lessen its effectiveness unless they are corrected:
There are inconsistencies between the Bill’s memorandum and the Bill itself. For example, in regard to clause 4 the Bill says that where the State’s resources are insufficient, “parents or guardians should make sure that every child attains basic education.” Clause 4 however saddles parents and guardians with no such responsibility. Again, in regard to clause 15 a rather garbled paragraph in the memorandum suggests that non-government schools will have to contribute to the Basic Education Fund established by the new section 68C; but there is nothing to that effect in the Bill itself.
Clause 2 of the Bill will insert definitions of “basic education” and “basic state funded education” which are mutually inconsistent: “basic education” ends at form 4 while “basic state funded education” ends at grade 7. The definitions need to be the same because section 75 of the Constitution gives everyone the right to “basic State-funded education”, and if basic education is to end at form 4 then State funding must extend to that level. A further point is that, as noted earlier, the definition of “basic state funded education” makes no reference to State funding. Clause 2 of the Bill will also insert definitions of “further education” and “special needs education”, terms that are not used in the Bill or the Act. The clause will also replace the definition of “pre-school” with one of “early childhood development”, though early childhood development centres will still be called “nursery schools” in Part VII of the Act.
Section 21 of the Act states that non-government schools must get approval from the National Incomes and Pricing Commission before charging or increasing their fees and levies. That Commission was abolished in 2017, but the Bill makes no attempt to amend or repeal section 21. [When the Bill passes through Parliament one hopes Hon Members will ask the Minister who or what has been approving school fees and levies since 2017]
More importantly, there is nothing in the Bill, or in the Act, which tackles the problem of social and cultural norms that discourage girls, particularly in rural areas, from pursuing their education. It is not enough merely to prohibit gender discrimination in school admissions: the Minister should be empowered to enact regulations positively encouraging girls to enter and stay in schools.
The Bill does not touch on safety in schools. One looks in vain for any provisions on general security or for outlawing the use of school premises for party political purposes, or preventing schoolchildren and teachers being dragooned into attending political rallies in order to provide entertainment there.
The Bill has several worthwhile provisions but is marred by omissions and errors that show a surprising lack of attention to detail. Overall it is a flawed document, which is a pity as a sound educational system is so important for Zimbabwe.