It’s the end of the year and decade, and we need some good news, right? As the United States continues to throw migrant children into the abyss of immigrant detention and India throws millions under the bus of lost citizenship, last week a court in the Eastern Cape province of South Africa came through. In a case concerning the rights of 37 undocumented children to attend school, the Judge President of the Eastern Cape Selby Mbenenge, writing for the Makhanda High Court, emphatically declared that the Constitution of South Africa enshrines the right of all children to access to education. Judge Mbenenge opened his decision: “Central to this application is the right to basic education enshrined, without any qualification, in section 29 of the Constitution … Education is a mighty tool in the hands of the possessor. Its efficacy depends largely on the bulwark that surrounds it – the right to education … In our constitutional dispensation basic education is a pivot of transformation.” Children matter, democracy matters, education matters, rights matter, the Constitution matters, courts matter, judges matter, decency matters, compassion matters, transformation matters … without any qualification. Amen.

Who are the undocumented children of South Africa? According to the Department of Basic Education, of the 998,433 undocumented children currently enrolled in public schools, 880,968 are South African citizens. A little over 88% of those children are South African. Of the 37 children represented in the Eastern Cape case, 23, or a bit more than 60%, are South African citizens. South African children born at home often don’t have birth certificates. There are other barriers. Eight of the children live in a safe house for abandoned and orphaned children. Their situation didn’t matter. Without proper papers, they were expelled. Who are the undocumented children of South Africa? Poor. Black. Vulnerable. But first, they are children.

The Makhanda High Court has said that children’s situation does not matter, because they are children and thus are due an education, and that obligation is without qualification. Section 29 of the Constitution of South Africa reads:

“Section 29 Education

 (1) Everyone has the right –

(a) to a basic education, including adult basic education; and

(b) to further education, which the state, through reasonable measures, must make progressively available and accessible.

(2) Everyone has the right to receive education in the official language or languages of their choice in public educational institutions where that education is reasonably practicable. In order to ensure the effective access to, and implementation of, this right, the state must consider all reasonable educational alternatives, including single medium institutions, taking into account –

(a) equity;

(b) practicability; and

(c) the need to redress the results of past racially discriminatory laws and practices.

(3) Everyone has the right to establish and maintain, at their own expense, independent educational institutions that –

(a) do not discriminate on the basis of race;

(b) are registered with the state; and

(c) maintain standards that are not inferior to standards at comparable public educational institutions.”

Everyone means everyone. Tell that to the governments of the United States and India, and all those fortress nations in between and beyond. This is a victory for vulnerable children as it is a victory for inalienable rights without qualification. Transformation is still possible. 

(Photo credit: Daily Maverick)