Initiative for Social and Economic Rights v. Attorney General. Civil Suit No. 353 of 2016
This case challenged the discrepancy in the quality of education provided by private educational institutions and government aided schools in Uganda. The discrepancy is due in part to the financing policy provided by the Government in which the Public Private Partnership (PPP) schools received significantly less money per student than government aided schools. Initiative for Social and Economic Rights (ISER) brought this case against the Government claiming that the financing policy infringes on the right to quality education, equality, and freedom from discrimination guaranteed under the Constitution. The High Court of Uganda agreed.
Following the introduction of the Universal Secondary Education (USE) program in 2007 by the Government of Uganda, the program was subsequently implemented in public schools, government grant aided schools, private for profit Public Private Partnership (PPP) schools, and private not for profit PPPs. The Government paid UGX 47,000 per student for those enrolled in PPP schools, as opposed to UGX 230,000 per student enrolled in government aided and public schools. The result of the financing discrepancy affected the quality of education in the PPP schools, and the students’ ability to get an education equal to the education being given at government grant-aided and public schools.
ISER conducted research prior to bringing the case, which illustrated that USE private schools lacked basic infrastructure such as libraries, enough classrooms, bathrooms, laboratories and sport fields. Additionally, ISER argued that with only UGX 47,000 per student going to PPP schools, these schools were unable to recruit qualified teachers, resulting in high turnover rates, large classroom sizes, and low performance rates by the students. The research also further highlighted issues of abuse and misuse of already inadequate funding from the government by some PPP schools and also in a number of schools charging students non-tuition fees such as examination, laboratory, and development fees, among others, which was contrary to the aim and intention of the USE program, especially the policy guidelines and the Memorandum of Understandings signed between the Ministry of Education and Sports and the PPPs.
The Government, in its defense, argued that it released policy guidelines for the PPP implementation of the USE. The Government and the PPP entered into a memorandum of understanding, which laid out the requirements and responsibilities that private schools had in implementing the USE program. The Government claimed the private schools are responsible for ensuring class sizes, quality teachers, and basic infrastructure. The Government additionally argued that it followed through with its obligations and cannot be held responsible for alleged omissions of the PPP schools, and, as such, there was no cause of action against the defendant.
In its analysis, the Court looked at the Ugandan Constitution, along with, inter alia, the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the Convention on the Rights of the Child (CRC), both of which Uganda has signed and ratified. The Court highlighted Uganda’s obligation to protect against infringements to the right to education, especially regarding how it has intersected with the business sector. The Court referenced CRC General Comment No. 16, which states that “States must take all necessary, appropriate and reasonable measures to prevent business enterprises from causing or contributing to abuses of children’s rights.”
In applying the Government’s duties under both national and international law, the Court found that the Government was required to continuously monitor the implementation of the USE program in PPP schools. This obligation required the Government to take positive measures, including regulating and monitoring non-state actors; ensuring the effective implementation of relevant legislation and programs; and providing remedies for such violations. As such, the Court stated that nothing in the agreement between the Government and the private schools can take away the Government’s obligation to regulate the private actors and protect the constitutional right to education, as guaranteed. The Court held that the Government failed in its obligations to monitor and regulate the PPP schools, leading to breaches in the right to education under articles 30 and 34(2) of the Ugandan Constitution. Further, the breaches also infringed on the right to equality and non-discrimination under article 21 of the Ugandan Constitution.
The Court ordered the Government to “ensure equity for all children in the design and implementation of education programs.” It further ordered that the Government should take the lead in regulating private actors’ role in education, ensuring minimum standards and sanctioning violators, all while seeking “guidance from the Abidjan Principles on the human rights obligations of states to provide public education and to regulate private involvement in education in designing education programs in the country.”
The photo shows one of the classroom blocks at Purungo Seed Secondary School in Purungo Sub County, Nwoya District, that was recently constructed in the sub county, which did not have a secondary school. In 2018, the Ministry of Education and Sports commenced the phasing out of USE program in PPP schools, such that the funds can be shifted to either construction or grant aiding of community secondary schools to implement the government policy of providing secondary education in each sub county.
The case is significant for several reasons. First, the Court held the Government is accountable in connection with the actions of businesses and private individuals. The Court affirmed that Uganda’s obligations under international human rights law require that the Government monitor, regulate, and ensure private entities are compliant with minimum educational standards. The Court also recognized that while the Government is currently reliant upon the private sector to deliver education, this should always be considered a temporary measure, and the Government should strive to put in place its own public school system. Lastly, although the judgement was specifically about PPPs in education, its principles can also be applied to other PPPs involved in service delivery.
For their contributions to the summary, special thanks to ESCR-Net members: the Initiative for Social and Economic Rights (ISER) and the Program on Human Rights and the Global Economy (PHRGE) at Northeastern University.