The education system does not always respect the rights of female pupils, leading to many dropouts, writes Faranaaz Veriava.
Global education advocacy initiatives focus on promoting the education of girls because of the many ways in which they are denied access to learning, trapping them in a downward cycle of poverty and inequality.
In its most obvious form, this involves completely prohibiting girls from being educated. The recent shooting in Pakistan of 14-year-old activist Malala Yousafzai by a Taliban gunman for agitating for female education rights placed this practice in the spotlight again.
But there are more subtle social barriers that deny girls their right to an education. South African studies suggest that although enrolment rates at schools are comparatively high, there is a significant dropout rate after grade nine, or age 15. The main reason cited for girls dropping out of school in South Africa is pregnancy; another reason is "family commitments", defined broadly as girls having to care for other family members or having to work in the household.
A 2001 Human Rights Watch report about sexual violence and the sexual harassment of female pupils in South African schools documented how prevalent these practices were, finding that they affected attendance and were a significant reason for girls dropping out of school.
The report also highlighted the many incidents of teenage pregnancy as a result of sexual harassment or rape by male pupils or teachers.
Against this background the outcome of a recent local court case dealing with schoolgirl pregnancy proved to be disappointing, because it failed to properly contextualise this phenomenon as hindering access to education.
In September the Supreme Court of Appeal considered a situation in which the governing bodies of two schools in the Free State had each developed policies that prohibited pregnant girls from attending school for specified periods.
When, following the adoption of these policies, pupils at these schools became pregnant they were barred from attending classes for the specified periods.
The family of one of the pregnant schoolgirls complained to the province's education department that this prohibition was tantamount to expulsion. The department's head then instructed the principals at both schools to ignore their respective policies and readmit the pupils.
But the schools argued that their pregnancy policies complied with the national basic education department's 2007 guidelines regarding measures to prevent and manage pregnancy among pupils. The schools also challenged the legality of the head of the department's instruction.
The appeal court held that, in terms of the Schools Act, the power to determine a school's code of conduct, in this case its pregnancy policy, was vested in the school's governing body. It also ruled that the head of the province's education department had acted unlawfully by instructing the school principals to ignore their respective schools' pregnancy policies.
This judgment reflects a narrow and technical approach to deciding the case. The court declined to consider the constitutionality of the schools' pregnancy policies. Furthermore, it did not take into account the arguments about the constitutionality of the policies made by a public-interest organisation, the Centre for Child Law, which was admitted as amicus curiae (friend of the court) in the matter.
The national guidelines on schoolgirl pregnancy reflect ambivalence about protecting the rights of the affected individuals. Although they affirm the right of the pregnant pupil not to be discriminated against and state that a pupil cannot be expelled for being pregnant, other measures appear to stigmatise her and impede her continuing education.
The guidelines give schools wide discretion to prevent girls from attending school before and after giving birth and recommend that they do not return to classes in the same year they give birth. They also place an obligation on other pupils to report a fellow pupil's pregnancy, thereby violating the privacy of the pregnant girl.
That the guidelines have not been effective in helping pregnant girls to continue with their schooling is evidenced by the fact that pregnancy continues to be cited as one of the main reasons for teenagers dropping out of school. Anecdotal evidence also suggests that girls are pressured into leaving school once it is discovered that they are pregnant and then struggle to return after they have given birth.
Our Constitution is often lauded for its transformative potential to redress poverty and inequality, including gender inequality. But realising this potential requires that our policymakers and our judiciary make policy and adjudicate matters in a manner that is conscious of the many ways in which structural inequalities are entrenched in South Africa and then take proactive steps to address this.
In this case, it impels them to be aware of the impact that pregnancies have on female pupils' right to a basic education. At the level of policymaking, the guidelines should be revised to reflect an unambiguous commitment to the continuing education of pregnant schoolgirls.
The Centre for Child Law attempted to place before the appeal court South Africa's commitments in international law to reducing the dropout rate at schools and to ensure that pregnant girls are given the opportunity to continue their education. It cited various comparative examples of the policy measures taken by other countries to ensure the continuing education of pregnant girls.
The jurisprudence of our courts must also reflect a commitment to transformation. Although the power to determine a school's codes of conduct is vested in the school governing body, this power is not unlimited. It is constrained by the Constitution and the wider provisions of the Schools Act.
A specific example of this limitation is the education department's guidelines, which must be considered by school governing bodies when they adopt a code of conduct for pupils. Developed in the late 1990s following the promulgation of the Schools Act, these guidelines require that the codes of conduct must be subject to the Constitution and respectful of pupils' rights. This includes the right not to be discriminated against, as well as the right to privacy and dignity.
It is therefore to be hoped that if the Constitutional Court hears this matter, it will adjudicate with due regard to the manner in which the guidelines and policies of the individual schools discriminate against female pupils and impede their enjoyment of the right to a basic education.
Without an education girls and women have limited opportunities. They are excluded from the labour market, or are relegated to the informal sector in jobs such as domestic work. They are more likely to enter into early marriages and are more vulnerable to all forms of violence.
By contrast, a mother with an education has a higher probability of being able to enter the labour market and is therefore better able to provide for her children. Educated mothers are more likely to ensure that their own children are educated and are also equipped to participate in the education of their children.
Under these circumstances, how can South African society afford not to ensure that pregnant schoolgirls complete their schooling?
Faranaaz Veriava is a human rights lawyer. This is her fourth monthly column on the meaning and implications of the right to basic education