Summary
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.
