UNIVERSITY OF AMSTERDAM
FACULTY OF LAW
Implementation and Compliance of Access
to Universal Basic Education in Ghana
In relation to Labour, Poverty and Teenage Pregnancy
1
Name
Jessica Barkers
Thesis supervisor:
Prof. Dr. Yvonne Donders
Date of submission:
10
thof July 2017
2
Abstract
The right to education has been affirmed in many international and regional human rights instruments since 1948. It entails that education shall be free and compulsory, at least in the elementary and fundamental stages. The United Nations Millennium Development Goals (MDGs), Education for all (EFA), the 2030 Agenda for Sustainable Development (SDGs) and the Free and Compulsory Universal Basic Education (FCUBE) have set targets and goals to achieve universal basic education. This education goal has not yet been achieved. The school enrolment has increased, but there are still millions of children out-of-school. The sub-Saharan Africa represents more than half of the million out-of-school children. The majority of children are in Ghana has implemented the right to universal basic education in its 1992 Constitution, however Ghana deals with major obstacles – such as child labour, poverty and teenage pregnancy – which leads to children dropping out of school or never attending school. The purpose of the study is to examine the implementation and compliance of the education goal by Ghana, as set by the MDGs, EFA, SDGs and FCUBE. Ghana has implemented international and regional human rights instruments into their legal system. However, in which way does the national policies in Ghana, which aims to make education accessible and affordable for all Ghanaian citizens, contribute to the full realization of the right to access to universal basic education. And how does major challenges, as child labour, poverty and teenage pregnancy, impeded the compliance of the right to access to universal basic education as stated in the human rights instruments. The study, first of all, gives an overview of the international and regional human legal framework of the right to education, which includes the right to universal basic education. Secondly, the right to education in the national legal
framework of Ghana is discussed. Thirdly, the implementation and compliance of Ghana is examined by the use of human rights indicators. The human rights indicators provide concrete, practical tools for enforcing human rights and measuring their implementation in a country. The monitoring mechanism, national policies, reports and the main obstacles are discussed. This study shows that Ghana has implemented and complied with the right to universal basic education, as stated in the international and regional human rights
instruments to a great extent. The only problem is that universal basic education is not completely free, because of several hidden levies and charges. Further, the main obstacles impediment the access of the right to universal basic education. However, this does not mean that children do not have formal access to universal basic education. The main obstacles can rather be seen as practical challenges, which does not make a child enjoy his right to universal basic education in practice.
3
Table of Content
List of Abbreviations... 5
Chapter 1 Introduction ... 6-9 1.1 Background of the Study ... 6
1.2 Purpose of the Study ... 7
1.3 Research questions and structure of the Study ... 8
1.4 Research methodology ... 9
Chapter 2 International and regional framework of the right to education ... 10-20 2.1 Introduction ... 10
2.2 International Legal Framework ... 10-16 2.2.1 The Universal Declaration of Human Rights ... 10
2.2.2 The International Covenant on Economic, Social and Cultural Rights ... 11
2.2.3 The Convention on the Rights of the Child ... 15
2.3 Regional Legal Framework ... 17-19 2.3.1 The African Charter on Human and Peoples’ Rights ... 17
2.3.2 The African Charter on the Rights and Welfare of the Child ... 18
2.3.3 The African Youth Charter ... 19
2.4 Monitoring and Enforcement ... 19
2.5 Conclusion ... 20
Chapter 3 The right to education in Ghana ... 21-26 3.1 Introduction ... 21
3.2 The relationship between international and regional law and national law ... 21
3.3 National Legal Framework ... 22-25 3.3.1 The Constitution of Ghana 1992 ... 22
3.3.2 The Children’s Act 1998 ... 22
3.3.3 The Education Act 2008 ... 23 3.4 Education reforms and access to basic education ... 24-25
4
3.4.1 Ghana’s Education Reforms ... 24
3.4.2 Access to basic education: enrolment, attendance and completion ... 24
3.5 Monitoring and enforcement ... 25
3.6 Conclusion ... 26
Chapter 4 Universal Basic Education by Human Rights Indicators ... 27-34 4.1 Introduction ... 27
4.2 Reviewing the right to universal basic education in Ghana by human rights indicators ... 27-34 4.2.1 Structural indicators ... 28
4.2.2 Process indicators ... 31
4.2.3 Outcome indicators ... 32
4.3 Conclusion ... 34
Chapter 5 Conclusion and Recommendations ... 35-37 5.1 Introduction ... 35
5.2 Conclusion ... 35
Bibliography ... 38-45
Annex 1 ... 45-58 Annex 2 ... 59-62
5
List of Abbreviations
ACHPR
African Charter on Human and Peoples’ Rights
ACRWC
African Charter on the Rights and Welfare of the Child
ADP
Accelerated Development Plan
AU
African Union
AYC
African Youth Charter
CESCR
Committee on Economic, Social and Cultural Rights
CHRAJ
Commission on Human Rights and Administrative Justice
CRC
Convention on the Rights of the Child
EFA
Education for All
ESP
Education Strategy Plan
FCUBE
Free Compulsory Universal Basic Education
GNCRC
Ghana NGO Coalition on the Rights of the Child
GSFP
Ghana School Feeding Programme
HRC
United Nations Human Rights Council
ICESCR
International Covenant on Economic, Social and Cultural Rights
MDGs
Millennium Development Goals
MoE
Ministry of Education
NER
Net Enrolment Ratio
NGO
Non-Governmental Organisation
OHCHR
Office of the United Nations High Commissioner for Human Rights
SDG
Sustainable Development Goal
UDHR
Universal Declaration of Human Rights
UPR
Universal Periodic Review
UN
United Nations
UN Charter
United Nations Charter
UNESCO
United Nations Educational, Scientific and Cultural Organization
UNDP
United Nations Development Programme
UNGA
United Nations General Assembly
6
Chapter 1 Introduction
1.1 Background of the StudyAs Nelson Mandela said, “Education is the most powerful weapon which you can use to change the world”. All over the world, education is accepted as the process by which individuals obtain knowledge, skills and attitudes. It is also universally accepted that one of the benefits of good education is that it enables
individuals to contribute to development and improvement that will help the country and the nation.1 In 1948,
the Universal Declaration of Human Rights (UDHR) acknowledged the access to education as a human right. The right to education has been enumerated in article 26 UDHR and reaffirmed in many international and regional human rights instruments since 1948.2 Most of the countries have implemented and incorporated
the right to education into their national legal system. The right to education entails that education shall be
free and compulsory, at least in the elementary and fundamental stages. Education plays a very important
role in the first years of a child's life. Children establish the cognitive, emotional and social foundation upon which they can build their future lives. Early childhood can be seen as the most significant developmental period in life, and that is why having access to universal basic education is very important.3
Since the United Nations (UN) declared “the Decade of Development” in 1961, the international community has set many goals and targets to achieve universal basic education.4 In 2000, world leaders came together
in New York at the UN forming the United Nations Millennium Development Goals (MDGs). Two of the eight MDGs focused on education, but the most important one for the study is Goal 2: Achieving Universal Primary
Education. The target was that, by 2015, “children universally, including both boys and girls, will be able to
complete a full course of primary education”. 5 During that same year the international community met at the
World Education Forum in Dakar, Senegal, to develop the Dakar Framework for Action, Education for all:
Meeting our Collective Commitments, known as Education for all (EFA). The 164 countries pledged to the
EFA goals, which should be met by 2015, and targets for every citizen and society.6 However, as these goals
were established they were not reached by 2015. This led up to the 2030 Agenda for Sustainable
1 DK Agyeman, JJK Baku and R Gbadamosi, ‘Review of Education Sector Analysis in Ghana 1987-1998’ (Working Group on
Education Sector Analysis UNESCO, 2000) 9
2 See Annex 1 for Article 26 UDHR
3 ‘Early childhood education and school readiness’ (UNICEF, 8 February 2012)
4 NYU Global Institute for Advanced Study, Article 26: The Education Provision. Appendix E to the Report of the Global Citizenship
Commission (Cambridge: Open Book Publishers 2016), 6; ‘The 1960: Decade of development’ (UNICEF)
5 Max ‘MDG 2: Achieve universal primary education’ (Mdgmonitor, 15 November 2016)
7
Development, which extends the unrealized goals and sets a universal education agenda for the period from
2015 to 2030.7 The Sustainable Development Goal 4 (SDG) ensures access to and completion of quality
education for every child to at least 12 years of free, publicly funded, inclusive, equitable, quality primary and secondary education - of which at least nine years are compulsory.8 The SDG has been set up to be more
comprehensive in achieving the education goal than the MDGs and EFA. Since these targets and goals set by the MDGs, EFA and SDGs have not been achieved yet, it triggers the question to which extend States have implemented and complied with the access to universal basic education.
1.2 Purpose of the Study
Ghana, formerly known as the Gold Coast, became independent in 1957. At that time, it had one of the most developed education systems in the sub-Saharan Africa. In 1995, the Free and Compulsory Universal Basic Education (FCUBE) was introduced to realize the access to universal basic education by 2005.9 In 2000, the
MDGs and EFA also came with a worldwide goal of achieving universal primary education by 2015. By 2015, the Primary School Net Enrolment Ratio (NER) in the developing world had increased from 83% in 2000 to 91%.10 Ghana had, in the year 2015/16, a Primary School NER of 92%.11 Despite, the decrease from 99
million children out-of-school in 2000 to 59 million children out-of-school in 2013, not every child is having access to universal basic education in the world. The sub-Saharan Africa represents more than half of the 59 million out-of-school children.12
The right to education which entails the access to universal basic education has been implemented in article 25, section 1 of the 1992 Constitution of Ghana, which states that: “all persons shall have the right to equal
educational opportunities and facilities and with the view to achieving the full realization of that right - a) basic education shall be free, compulsory and available to all (…)”. Despite, the implementation of access to
universal basic education, the right has not been fully realized. Ghana has ratified most of the key
international and regional human rights instruments. It has implemented these instruments in national law and adopted a number of policies. Compliance of the human rights instruments by Ghana can be seen as
7 UNESCO, ‘Education 2030. Incheon Declaration and framework for action. Towards inclusive and equitable quality education and
lifelong learning for all’ (UNESCO 2015) 12
8 Ibid 6
9 K Akyeampong, ‘Revisiting free compulsory universal basic education (FCUBE) in Ghana’ (2009) 45 (2) Comparative Education
175
10 Max ‘MDG 2: Achieve universal primary education’ (Mdgmonitor, 15 November 2016) 11 Ministry of Education, ‘Education sector performance report’ (Government of Ghana 2016) 11
8
one of the reasons why the access to universal basic education has not been fully realized. Further, there are also other major challenges which play a role. According to the Ghana’s Population and Housing Census
(2010) 540,127 children from the ages 6 to 14 years dropped out of school or never attended school due to
the remoteness from their house to the school, physical disabilities, and socioeconomic and emotional limitations.13 And also child labour, child marriage, emergencies, teenage pregnancy, a lack of gender equity
and poverty plays a role.14 Beside that there is also a gap between the right to education in law and policies
and the practice of the right to education. The factors, such as corruption, lack of motivation and poor implementation, tend to be the cause.
The purpose of the study is to examine the implementation and compliance of the education goal by Ghana, as set by the MDGs, EFA, SDGs and FCUBE. Ghana has implemented international and regional human rights instruments into their legal system. However, in which way does the national policies in Ghana, which aims to make education accessible and affordable for all Ghanaian citizens, contribute to the full realization of the right to access to universal basic education. And how does major challenges, as child labour, poverty and teenage pregnancy, impeded the compliance of the right to access to universal basic education as stated in the human rights instruments.
1.3 Research questions and structure of study
Based on the purpose and motivation for this study the following main research questions are set to answer: “To what extent has Ghana implemented and complied with the right to universal basic education, as stated
in the international and regional human rights instruments? And what are the main obstacles to the implementation and compliance of the right to universal basic education in Ghana? ”
The first research question will be examined by the chapters two and three. Chapter two, first of all, concerns the international and regional legal framework of the right to education. This chapter will give an overview of what can be understood under the right to education which entails ‘universal basic education’ as stated in the various international and regional human rights instruments. Further, the State’s obligations to realize the access to universal basic education will be discussed. Chapter 3, secondly, is about the right to education in the national legal framework of Ghana. In this chapter I will discuss how the international and regional law
13 Ministry of Education (n 11) 20
14 NYU Global Institute for Advanced Study (n 4) 11; F Coomans, ‘Education and work’ in D Moeckli et al (eds.), International
9
system is implemented into the national legal system of Ghana, through monism, dualism or pluralism and the education reforms and access to basic education system in Ghana. The first and the second research question will be examined by chapter four. This chapter will discuss the major obstacles, such as child labour, poverty and teenage pregnancy, which militate against the successful or effective implementation and compliance of universal basic education in Ghana. And which national education policies have been introduced by Ghana to comply with the right to universal basic education and which strategies have been obtained to reduce the dropout cases which are caused by the major obstacles. This will be done in the framework of the human rights indicators (structural, process and outcome indicators). The human rights indicators provide concrete, practical tools for enforcing human rights and measuring their implementation in a country. The use of the human rights indicators will help to assess the progress of Ghana in ensuring the enjoyment of the right to universal basic education. Finally, in chapter five the research questions as examined in the previous chapters will be answered.
1.4 Research methodology
The methodological approach that will be used for the study is the ‘internal perspective’. It is an internal perspective, because I will be looking at the study through a law-point of view. In this study, the access to universal basic education will be identified and analysed under the relevant international and regional human rights instruments, namely UDHR, ICESCR, CRC, ACHPR, and ACRWC. These instruments will be
examined and interpreted, guided by the rules of interpreting treaty provision.15 The General Comments of
the human rights instruments will be useful in clarifying the access to universal basic education, the State’s obligations and protection of the law. Further, the Ghanaian Constitution and national policies will be analysed to point out the inconsistency or gaps between the international and regional legal framework and national legal framework. I will, hereby, also look into the state reports and concluding observations of human rights bodies. This will be the UN Human Rights Council, Universal Periodic Review and the Committee on the Rights of the Child. There are no state reports or concluding observations by the Committee on
Economic, Social and Cultural Rights of Ghana. In addition, other sources such as monographs, reports and journal articles will be consulted. The results of this approach will show the extent of implementation and compliance of the right to access to universal basic education by Ghana.
10
Chapter 2 International and Regional Legal Framework
of the Right to Education
2.1 Introduction
Education has been recognized as a human right since the adoption of the Universal Declaration of Human Rights in 1948. The right to education has since then been affirmed in numerous international and regional human rights instruments.16 The term education can be understood in a broader or narrow sense. On the
one hand, in broader sense, education refers to “all activities by which a human group transmits to its descendants a body of knowledge and skills and a moral code which enable that group to subsist”.17
Education, therefore, requires a subsequent range of experience and inculcation based on the social, cultural, spiritual and philosophical values of a community.18 This implies that education has various forms.
On the other hand, in narrow sense, the term ‘education’ means “instruction imparted within a national, provincial or local education system, whether public or private”.19 This refers to having education through
formal institutional instruction. The monitoring bodies mostly suggest the term ‘education’ to be understood in a broader sense.20 Furthermore, the provisions on the right to education obliges the States to promote the
right to education by having an education system. States can be seen as the chief provider of education.21
The international human rights instruments that will be discussed in this chapter are the Universal
Declaration of Human Rights (UDHR), the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the Convention on the Rights of the Child (CRC). The regional human rights instruments that will be discussed are the African Charter on Human and Peoples’ Rights (ACHPR) and African Charter on the Rights and Welfare of the Child (ACRWC) and the African Youth Charter (AYC).
2.2 International Legal Framework
2.2.1 The Universal Declaration of Human Rights
16 NYU Global Institute for Advanced Study (n 4) 3
17 KD Beiter, The protection of the right to Education by International Law (Boston: Martinus Nijhoff Publishers 2005) 18-19 18 Ibid 19
19 Ibid 19
20 UN Committee on Economic, Social and Cultural Rights (CESCR), ‘General Comment No 13: The Right to Education (Art. 13 of
the Covenant) (8 December 1999) UN Doc E/C.12/1999/10, para 4; UN Committee on the Rights of the Child (CRC), ‘General comment No 1: The aims of education (Art. 29 (1) of the Covenant)’ (17 April 2001) UN Doc CRC/GC/2001/1, para. 2
11
The UDHR is the first international human rights instrument which forms the basis for further guarantees of the right to education in later human rights instruments. The UDHR was originally intended to be a non-binding instrument. However, the UDHR has a very great influence on the development of international human rights law. Most of the provisions of the UDHR have become part of international customary law, which makes it binding upon all states. This has been confirmed by States in intergovernmental and diplomatic settings, in arguments submitted to judicial tribunals, by the actions of intergovernmental
organizations and in the writings of legal scholars.22 The UDHR proclaims two categories of rights: civil and
political rights and economic, social and cultural rights.23 The right to education has been mentioned in article
26 of the UDHR.24 The article provides the recognition of the right to receive an education, reference to the
aims of education and a guarantee for the exercise of parental rights.25
The right to universal basic education is mentioned in article 26 (1) of the UDHR. According to this article, ‘elementary’ education, which can be translated as ‘basic’ education, must be free and compulsory. Elementary education refers to formal schooling for children of primary school age. The realization of this right must, according to article 26 (1) in conjunction with article 22 of the UDHR, be progressively. States must take deliberate steps towards realizing the right to universal basic education.26 The realization must be
obtained by financial, technical and other resources, which are nationally available, or international
sources.27 In general, States have a wide latitude in determining the realization of the economic, social and
cultural rights of the UDHR, but when it comes to article 26 (1) of the UDHR the States must prioritise the realization of basic education.28
2.2.2 The International Covenant on Economic, Social and Cultural Rights
Since article 26 of the UDHR was not a legally binding instrument at the time of its adoption, this article on education was transformed into the articles 13 and 14 of the ICESCR. The articles 13 and 14 can be seen as the central provision on the right to education in international human rights law.29 According to the CESCR,
22 H Hannum, ‘The Status of the Universal Declaration of Human Rights in National and International Law’ (1996) 25 (287) Georgia
Journal of International and Comparative Law, 289; H Hannum, ‘The UDHR in national and International Law’ (1998) 3 (2) Health
Hum Rights, 145
23 T Buergenthal, D Shelton and DP Stewart, International Human Rights in a Nutshell (West group 2009) 39 24 See Annex 1 25 Coomans (n 14) 239 26 See Annex 1 27 Beiter (n 17) 91 28 Ibid 91-92 29 See Annex 1
12
article 13 can be seen as “the longest provision in the Covenant, is the most wide-ranging and
comprehensive article on the right to education in international human rights law”.30 The ICESCR imposes
legally binding obligations on States Parties.31 These are general and specific legal obligations. General
obligations entails that a State party has immediate obligations to prohibit discrimination and an immediate
obligation to begin to take steps in respecting, promoting and ensuring human rights.32 Specific obligations
entail obligations to draft, adopt, and implement a comprehensive national (education) strategy, institutions and systems.33 The general and specific obligations difference in the sense that general obligations does not
explicitly mention the right to education. It imposes an immediate obligation in ensuring and promoting human rights and prohibiting discrimination, whiles specific obligations imposes an immediate obligation in relation to the right to education directly.
The specific legal obligations are mentioned in article 13 ICESCR. Article 13 imposes “a minimum core obligation to ensure the satisfaction, at the very least minimum essential levels” of the right to education.34
Article 13 (1) identifies the aims and objectives of education and these reflects the fundamental purposes and principles of the UN, as enshrined in articles 1 and 2 of the UN Charter.35 States parties are obliged “to
ensure that curricula, for all levels of the educational system, are directed to the objectives identified in article 13 (1)” and “they are also obliged to establish and maintain a transparent and effective system which
monitors whether or not education is, in fact, directed to the educational objectives set out in article 13 (1)”.36
The right to primary education, which is compulsory, available and free to all, is mentioned in article 13 (2) (a) ICESCR. The CESCR notes that primary education is not synonymous with basic education. Primary
education is rather seen as an important component of basic education.37 Primary education refers to the
first layer of a formal school system, from the age 4-6 and last for approximately 6 years, and includes the teaching of basic education or covering basic learning needs. Basic education relates to the content of education rather than the form it takes (formal or non-formal schooling).38 Further, under ‘compulsory’ should
be understood that schooling is up to 11 years of age and else at least to the minimum age of employment compulsory. And under ‘shall be free’ should be understood that “children would not have to pay for their
30 CESCR General Comment No. 13 (n 20) para 2; See Annex 1 for article 13 ICESCR 31 Beiter (n 17) 94
32 CESCR General Comment No. 13 (n 20) para 43; Coomans (n 14) 246-267 33 Coomans (n 14) 246-247
34 CESCR General Comment No. 13 (n 20) para 57
35 Ibid para 4; See Annex 1 for the articles 1 and 2 UN Charter 36 Ibid para 49
37 CESCR General Comment No. 13 (n 20) para 9 38 Coomans (n 14) 243-244
13
schooling or remain deprived of it when they cannot afford the cost”.39 The degree of primary education
being free is based on the direct and indirect costs, such as school fees, meals, school transport etc.40
The right to primary education includes the four interrelated and essential features– availability, accessibility, acceptability and adaptability which are common to education in all its forms and at all levels.41 Article 13 (2)
obliges States to respect, protect and fulfil (typology of obligations) the four essential features.42 The typology
of the obligations is on its own a general obligation, but through the four essential features it becomes a
specific obligation. First of all, the obligation to respect requires States to avoid any measures that may
hinder or prevent the enjoyment of the right to education.43 The CESCR has noted that a State must respect
the availability of education by not closing existing public or private schools.44 Availability entails that
“functioning educational institutions and programmes have to be available in sufficient quantity within the jurisdiction of the State party.”45 This requires, for instance, spending on school buildings and trained
teachers.46 This also includes the requirement of compulsory attendance, which has been affirmed by article
13 (2) (e).47 Secondly, the obligation to protect requires States to proactively ensure that persons, in this
case children, will not suffer from the violation of the right to education caused by third parties.48 This
includes that States must protect the accessibility of education by ensuring that third parties, including parents and employers, do not stop children from going to school.49 Accessibility entails that “educational
institutions and programmes have to be accessible to everyone (…)”. It contains three overlapping dimensions.50
The first dimension is the principle of non-discrimination, this is enshrined in article 2 (2) ICESCR and applies immediately, whereby “education must be accessible to all (…) in law and fact, without discrimination on any of the prohibited grounds.51 The second dimension is physical accessibility, which entails that “education has
to be within safe physical reach (…)” for children.52 This means that primary education shall be free and that
the travel expenses to school must be on the minimum. The third dimension is economic accessibility, which
39 Ibid 244 40 Ibid 244-245 41 Ibid para 6-8
42 Ibid para 46-47, 50; F Mégret , ‘Nature of Obligations’ in D Moeckli et al (eds.), International Human Rights Law (Oxford
University Press 2013) 101
43 CESCR General Comment No. 13 (n 20) para. 47 ; Mégret (n 42) 102 44 CESCR General Comment No. 13 (n 20) para 50
45 Ibid para 6 (a) 46 Ibid para 6 (a)
47 Beiter (n 17) 530-532; See Annex 1 for article 13 (2) (e) ICESCR 48 CESCR General Comment No. 13 (n 20) para 47; Mégret (n 42) 102 49 CESCR General Comment No. 13 (n 20) para 50
50 Ibid para 6 (b) 51 Ibid para 6 (b) and 31 52 Ibid para 6 (b)
14
entails that “primary education shall be available and free to all”.53 The term ‘free’ would imply no school
fees, but there is no distinct line drawn between direct (e.g. school fees) and indirect costs (e.g. school books and uniforms).54 Thirdly, the obligation to fulfil means that States must take positive measures for the greater
enjoyment of the rights.55 The States, therefore, must fulfil the acceptability of education by "taking positive
measures to ensure that education is culturally appropriate (…) and of good quality”.56 And also must fulfil
the adaptability of education by “designing and providing resources for curriculawhich reflect the
contemporary needs (…) in a changing world”. Adaptability means that education must be “flexible so it can adapt to the needs of changing societies and communities and respond to the needs of students within their diverse social and cultural settings”.57 Lastly, also fulfil the availability of education by “actively developing a
system of schools, including building classrooms, delivering programmes, providing teaching materials, training teachers and paying them domestically competitive salaries.”
Article 13 (2) requires States parties to take steps which leads towards the realization of the right to education. This is linked to article 2 ICESCR, which is a general obligation.58 Article 2 has a dynamic
relationship with article 13 – and also other provisions – ICESCR. It describes the nature of the States parties’ general legal obligations, which include the obligations of conduct and result.59 The obligation of
conduct requires action reasonably calculated to realize the enjoyment of a particular right.60 As in this study
it concerns the right to education, the obligation of conduct could involve the adoption and implementation of a plan of action, within two years after becoming a State party, for the progressive implementation of free and compulsory primary education within a reasonable number of years. This is mentioned in article 14 ICESCR which deals with the implementation of primary education in states that have not been able to secure compulsory primary education.61 The obligation of result requires States to achieve specific targets to satisfy
a detailed substantive standard.62 With respect to the right to education, this would for instance be meeting
basic learning needs within the education system. In addition, article 2 (1) requires a progressive realization of the right and acknowledges the constraints due to the limited available resource. It further also imposes
53 Ibid para 6 (b)
54 UN Committee on Economic, Social and Cultural Rights (CESCR), ‘General Comment No 11: Plans of Action for Primary
Education (Art. 14 of the Covenant)’ (10 May 1999) UN Doc E/1992/23, para 7
55 CESCR General Comment No. 13 (n 20) para 47; Mégret (n 42) 103. 56 Ibid para 6 (c) and 47
57 Ibid para 6 (d)
58 Ibid para 43; Coomans (n 14) 239; See Annex 1
59 UN Committee on Economic, Social and Cultural Rights (CESCR), ‘General Comment No 3: The Nature of States Parties'
Obligations (Art. 2, Para. 1, of the Covenant)’ (14 December 1990) UN Doc E/1991/23, para 1
60 International Commission of Jurists (ICJ), ‘Maastricht Guidelines on Violations of Economic, Social and Cultural Rights’ (26
January 1997) para 7
61 Coomans (n 14) 239; CESCR General Comment No 11 (n 53) para 1 and 10 62 Maastricht Guidelines (n 59) para 7
15
states obligations of immediate effect, such as the prohibition of discrimination. And the steps taken should be deliberate, concrete and targeted as clearly as possible towards the full realization of the right to education.63
Furthermore, there is a “strong presumption of impermissibility of any retrogressive measures taken in relation to the right to education”.64 Retrogressive measures are measures that, directly or indirectly, leads to
backward steps being taken with respect to the rights recognized in the instruments.65 The progressive
realization of the right to education, therefore, means that retrogressive measures are in principle prohibited. States must provide free and compulsory primary education and protect children from child labour which deprives them from having access to primary education. Retrogressive measures can be justified by the totality of the rights as provided in the human rights instruments and the use of the maximum available resources.66
2.2.3 The Convention on the Rights of the Child
The CRC was adopted in 1989 and entered into force in 1990. It is the most widely ratified human rights instrument with 193 States parties.67 Ghana was the first to ratify this convention on 5th February, 1990. The
convention is a legally binding instrument. The CRC protects the right to education in articles 28 and 29. In article 1 CRC, a child is defined as “every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier”. A child is entitled to special protection measures and the progressive exercise of its right, which includes the right to education.68 According to the Committee the
CRC is to be applied holistically in early childhood. The definition of early childhood varies in different countries. The Committee wishes to include all young children: from birthand throughout infancy; during the preschool years; as well as during the transition to school.69
63 CESCR General Comment No. 3 (n 58) para 1-3, 9 ; CESCR General Comment No. 13 (n 20) para 43-44; Beiter (n 17) 39 64 CESCR General Comment No. 13 (n 20) para 45
65 Office of the United Nations High Commissioner for Human Rights, ‘Economic, Social and Cultural Rights. Handbook for
National Human Rights Institutions’ (United Nations 2005), 28
66 CESCR General Comment No. 13 (n 20) para 45; CESCR General Comment No 3 (n 58) para 9
67 Office of the United Nations High Commissioner for Human Rights, ‘Legislative History of the Convention on the rights of the
child – Volume 1’ (United Nations 2007), 3
68 UN Committee on the Rights of the Child (CRC), ‘General comment No 7: Implementing Child Rights in Early Childhood’ (20
September 2006) UN Doc CRC/C/GC/7/Rev.1, para 3
16
The articles 28 and 29 concern the right to education and entails specific obligations.70 All the measures and
actions must respect the best interest of the child.71 Article 28 CRC lists some of the measures States parties
must take progressively to realize the right to education. These measures are supported by the general measures of implementation of the Convention mentioned in the articles 2, 3, 6 and 12.72 According to
article 28 (1) (a) primary education must be made compulsory and available free to all. There is a difference in wording there compared to article 13 (2) (a) ICESCR. Article 28 (1) (a) CRC uses the word ‘make’ which introduces “the notion of progressiveness to the obligation with regard to primary education (...)”. Whiles, article 13 (2)(a) ICESCR states that “primary education “shall be” compulsory and free to all, read with article 14, which places a time limit on the implementation of compulsory and free primary education. It could be said that article 28 (1) (a) CRC has been framed weaker.73 Article 28 (1) (e) also mentions that measures
must be taken by the States parties to encourage regular attendance at schools and the reduction of drop-out rates. Article 29 (1) CRC deals with the aims of education, which is based on article 13 (1) ICESCR. Article 29 (2) guarantees the freedom of individuals and bodies to establish schools. In addition, child labour is one of the major obstacles in achieving universal basic education. The CRC mentions in article 32 (1) that protective measures must be taken against economic exploitation of children (child labour) which may interfere with the right to education.74
Furthermore, articles 28 and 29 must be read together with articles 2 and 4 CRC.75 These are general
obligations.76 Article 2 obliges States parties to respect all the rights in the convention by taking appropriate
measures. Article 4 obliges States parties to take all appropriate measures to implement the rights as mentioned in the CRC.With regard to economic, social and cultural rights, States Parties shall undertake such measures to the maximum extent of their available resources and, where needed, within the framework of international cooperation. 77 These articles are similar to article 2 ICESCR. Articles 2 and 4 CRC and
article 2 ICESCR both have an immediate obligation, which entails the prohibition of discrimination, the obligation to ‘take steps’, non-retrogressive measures and minimum core obligations.78 In addition, since the
ICESCR is complementary to the CRC the essential features can also be interpreted analytical to the CRC.
70 See Annex 1; See paragraph 2.2.2 for the explanation on specific obligations.
71 UN Committee on the Rights of the Child (CRC), ‘General comment No. 14: on the right of the child to have his or her best
interests taken as a primary consideration (art. 3, para. 1) (29 May 2013) UN Doc CRC/C/GC/14, para 79
72 CRC General Comment No 7 (n 68) para 9-14 73 Beiter (n 17) 116-117
74 Coomans (n 14) 240 75 See Annex 1
76 See paragraph 2.2.2 for the explanation on general obligations
77 UN Committee on the Rights of the Child (CRC), ‘General comment no 5: General measures of implementation of the
Convention on the Rights of the Child’ (27 November 2003) UN Doc CRC/GC/2003/5, para 1, 3 and 6
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2.3 Regional Legal Framework
The right to education has also been protected by the African human rights system.
2.3.1 The African Charter on Human and Peoples’ Rights
The ACHPR, also known as the “Banjul Charter”, was adopted in 1981 by the former Organisation of African Unity (OAU), which is now the African Union (AU), and entered into force in 1986.79 Ghana ratified the
ACHPR on 1st March, 1989. The charter recognizes the rights of individuals as well as peoples’ right. States
parties have a general obligation, which is mentioned in article 1 ACHPR.80 It requires that States parties
“shall recognise the rights, duties and freedoms enshrined in the Charter and shall undertake to adopt legislative or other measures to give effect to them”. The article is complimented by article 25, 26 and 62 ACHPR, which obligates States to promote the realization of the right to education.81
The right to education is part of the individual rights and is mentioned in article 17 ACHPR.82 It is a specific
obligation.83 Article 17 (1) provides that, “every individual shall have the right to education”. Compared to the
ICESCR and the CRC, the ACHPR does not specifically guarantee the access to primary education nor does it make any reference to primary education being compulsory and available free to all. It also does not contain a provision on progressive realization. However, article 17 does impose some minimum core obligations. These are “to ensure that all children enjoy their right to free and compulsory primary education. No children should be denied this right because of school fees or related costs of education. (…) To achieve this objective states are bound to progressively increase the amount of national resources allocated to education” and to “implement policies to eliminate or reduce the costs of attending primary school which include the provision of stipends, providing free or subsidised uniforms (or lifting of uniform requirements), provision of free textbooks, provision of free or subsidised transportation or free school meals to encourage the attendance of poor children at school.”84
79 Beiter (n 17) 213.
80 See paragraph 2.2.2 for the explanation on general obligations; see Annex 1
81 ACHPR, ‘Principles and guidelines on the implementation of economic, social and cultural rights in the African charter on human
and peoples’ rights’, para 2;See Annex 1
82 World Health Organization, ‘African Charter on Human and Peoples’ Rights’, 1. 83 See paragraph 2.2.2 for the explanation on specific obligations
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2.3.2 The African Charter on the Rights and Welfare of the Child
The ACRWC was adopted in 1990 by the former OAU and entered into force in 1999. Ghana ratified the
ACRWC on 10th June, 2005. The ACRWC can be seen as the regional counterpart of the CRC, since most
of the provisions resemble the CRC. Also, the ACRWC contains some elements which are relevant from an African perspective. This, for instance, can be seen in article 11 (2) (c) and (f) ACRWC, where education shall be directed to the preservation and strengthening of positive African morals, traditional values, and cultures, and to the promotion and achievements of African unity and solidarity.85
The general obligation of States parties is to ensure the full realization of the rights in the Charter, which is mentioned in articles 1, 3 and 4 ACRWC.86 Article 1 mentions that States parties are obliged to promote and
ensure the right to education of a child and that nothing should impede this. Compared to the ICESCR and the CRC, the ACRWC does not mention progressive realization. Its advocacy is, therefore, stronger.87
Further, there is an immediate obligation, which is the prohibition of discrimination. This is stated in article 3. And article 4 mentions that when States parties are ensuring the full realization of the right to education that it must take into consideration the best interest of the child. This is similar to the CRC.
The right to education is mentioned in article 11 ACRWC.88 This is a specific obligation. Article 11 (1) states
that “every child shall have the right to an education.” According to article 2, “any human being under the age of 18 is considered as a child”.89 Article 11 (2) sets out the aims of education. Article 11 (3) (a), (d) and (e)
states the measures that must be taken to ensure the full realization of a child’s right to education.
Furthermore, teenage pregnancy is also one of the major obstacles in achieving access to universal basic education. Article 11 (6) stipulates that States parties shall take “all appropriate measures to ensure that children who become pregnant before completing their education shall have an opportunity to continue their education on the basis of their individual ability”. This means that they should not be banned from attending school.90 Many African schools tend to expel pregnant girls or tend to drop out to school, which leads to
precluding the continuation of education. But, in any case, the ACRWC states in article 11 (6) that teenage pregnancy should not lead to a child not having the right to education. Teenage pregnancy should not have to extinguish a child’s opportunity to access education and to the full realization of the right to education.
85 Coomans (n 14) 240; Beiter (n 17) 217 86 See Annex 1
87 J Kuper, ’The development of international child law’ in T Cushman, Handbook of Human Rights (Routledge International
Handbooks 2013) 344
88 See Annex 1 89 Ibid
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2.3.3 The African Youth Charter
The AYC was endorsed by the AU Heads of State and Government in Gambia in July 2006. The AYC came into force on the 8th of August, 2009. Ghana has ratified this Charter. The right to education is mentioned in
Article 13.91 Article 13 (4) (a) states that the States Parties are also obliged to achieve the full realization of
providing free and compulsory basic education and take steps to minimise the indirect costs of education. The AYC applies by definition to youth, defined as ‘youth or young people’ between the ages of 15 and 35 years.92
2.4 Monitoring and Enforcement
The international and regional human rights mechanisms monitor the implementation and enjoyment of the right to education.93 As the research includes reviewing the right to universal basic education in Ghana in
accordance with the human rights indicators, it is of relevance to look at the state reports and concluding observations of the human rights bodies. In accordance with the international and regional human rights instruments that have been discussed, the international human rights mechanisms – known as treaty or charter-based bodies – CESCR and the Committee on the rights of the child. The regional human rights mechanisms are the African Commission on Human and Peoples’ Rights, the African Court on Human and Peoples’ right and the African Committee of Experts on the Rights and the Welfare of the Child.
The CESCR monitors the implementation of the ICESCR by its States parties. Every five years States parties are required to submit a report explaining the progress they have made concerning the implementation of the rights as mentioned in ICESCR. The CESCR then issues non-binding concluding observations, assessing States’ compliance with their obligations under the ICESCR. This all is mentioned in the articles 16 to 23 ICESCR.94 There are no state reports or concluding observations by the Committee on Economic, Social and
Cultural Rights of Ghana. The Committee on the Rights of the Child monitors the implementation of the CRC by its States parties. States parties are obliged to submit periodic reports, every five years, to the Committee. The Committee examines each report and addresses its concerns and recommendations to the State party in the form of “concluding observations”. 95 There are state reports and concluding observations of Ghana.
These will be, further, discussed in chapter four.
91 See Annex 1
92 African Youth Charter (adopted 2 July 2006, entered into force 8 August 2009), 11 93 International Human Rights Mechanism, ‘Right to Education’
94 United Nations Human Rights Office of the High Commissioner, ‘Committee on Economic, Social and Cultural Rights’ 95 United Nations Human Rights Office of the High Commissioner, ‘Committee on the Rights of the Child’
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The African Commission on Human and Peoples’ Rights, according to article 45 ACHPR, protects and promotes the human and peoples’ rights through a communication procedure as provided in article 55 ACHPR and special mechanisms.96 The last state report and concluding observation of Ghana is of
1993-2000. I will not be using this report, since it is outdated. The African Committee of Experts on the Rights and the Welfare of the Child does individual complaints, as mentioned in article 44 ACRWC, and also receives and reviews state reports as mentioned in article 43 ACRWC.97 There are is no state report of Ghana.
Furthermore, there is also the UN Human Rights Council is an intergovernmental body which is responsible for the promotion and protection of all human rights in the world. It uses as mechanism the Universal Periodic Review (UPR).98 It then issues recommendations to each State and the State is responsible for implementing the recommendations.99 The UPR of Ghana will be discussed in chapter four.
2.5 Conclusion
In this chapter, an overview was given of the international and regional human rights instruments of the right to universal basic education. This is necessary to be able to assess whether Ghana is complying with the right to universal basic education. According to the articles 26 (1) UDHR, 13 (2) (a) ICESCR and 28 (1) (a) CRC the right to education includes the right to primary education, which is compulsory, available and free to
all. Ghana is as a state party to these instruments obliged to ensure the realization of the right to primary
education. This entails immediate obligations, such as prohibition of discrimination, the obligation of ‘take steps’, non-retrogressive measures and progressive realization. Furthermore, the regional human rights instruments are the ACHPR and the ACRWC. Both don’t specifically mention the right to education as having access to primary education, which is compulsory and available free to all. However, it does impose some minimum core obligations which entail the enjoyment of the right to free and compulsory primary education. Only the ACRWC does not mention progressive realization of the right to education. Further, the CRC and the ACRWC mention that the main obstacles, child labour and teenage pregnancy, should not be an impediment to the access to universal basic education. In addition, the state reports and concluding observations of the international and regional human rights mechanism, which specifically monitor and enforce States’ compliance with their obligations to respect, protect and to fulfil the right to education, will show to what extend Ghana has implemented and complied with the right to universal basic education.
96 See Annex 1 97 Ibid
98 The UPR a unique process which involves a review of the human rights records of all UN Member States 99 OHCHR, ‘United Nations Human Rights Council’
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Chapter 3 The Right to Education in Ghana
3.1 Introduction
Ghana has taken steps to implement the right to education into its national legal framework. The right to education can be found in the Constitution of Ghana 1992, the Children’s Act 1998 and the Education Act 2008. The constitution is the most fundamental law of the country, which all other national laws and policies must comply with.100 This chapter discusses the legal relationship between the international and regional law
system with the national legal system of Ghana. Furthermore, the education reforms of Ghana which led up to having the right to universal basic education and the access to universal basic education in percentages will be discussed.
3.2 The relationship between international and regional law and national law
For the incorporation of international and regional law into the national legal system there are two major approaches, namely monism and dualism. ‘Monism’ means that international law applies directly to national law. International law and national law are seen as one legal system, whereby there is no need for national law to implement the legislation. ‘Dualism’ means that international law and national law are two separate and distinct legal systems. International law in this case can only be applied in national law when it has been incorporated or transformed into national law through the implementation of legislation.101 Generally, civil law
countries tend to be monistic, while common law countries are dualistic. Ghana is a common law state which mainly adopts dualism.102 This means that the international and regional human rights instruments, as
discussed in chapter two, need to be incorporated, ratified or transformed into the law of Ghana. The fact that the Constitution of Ghana 1992 does not explicitly mention that international law is a source of law in Ghana, does not imply that the law of Ghana does not recognize, incorporate or transform international law. The provisions in the Constitution of Ghana 1992 rather shows that the international and regional human rights instruments are embedded into the Ghana law.103 Article 75 of the Constitution of Ghana 1992 states
100 ‘Right to education country factsheet Ghana’ (Right to education project, February 2012), 3 101 MN Shaw, International law (Cambridge University Press 2014) 93-95
102 CN Okeke, ‘The use of international law in the domestic courts of Ghana and Nigeria’ (2005) 32 (2) Arizona Journal of
International & Comparative Law, 399
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that the international and regional human rights instruments shall be subject to a ratification method.104 The
ratification of a treaty, agreement or convention may be done by an act of parliament or just by a simple majority vote of the parliament. 105
3.3 National Legal Framework
3.3.1 The Constitution of Ghana 1992
The Constitution of Ghana 1992 was adopted on 8th May 1992 and came into force on 7th January 1993. The
right to education is mentioned in article 25. For my study only article 25 (1) (a) and (e) are relevant.106 The
Constitution mentions that Ghana is obliged to achieve the full realization of the right to education, whereby basic education shall be free, compulsory and available to all. The wording of this provision is closely linked to that of the international human rights instruments. One of the rights of the child that is important for the study is mentioned in article 28. It states in article 28 (2) and (4) that children should not engage in child labour which would constitute a threat to education and should also not be deprived by any person from education.
The general obligation to promote and respect the right to education is mentioned in article 12 (1) which guarantees that fundamental human rights and freedoms “shall be respected and upheld by the Executive, Legislature and Judiciary and all other organs of government and its agencies and, where applicable to them, by all natural and legal persons in Ghana, and shall be enforceable by the courts as provided for in this Constitution.” This is further reinforced by articles 34 (2) and 38 (1) and (2).107The realization of the right to
education is done through policies and providing educational facilities, which will be discussed in chapter four.
3.3.2 The Children’s Act 1998
The Children’s Act (Act 560) came into force in January 1999. It is an Act “toreform and consolidate the law relating to children, to provide for the rights of the child, maintenance and adoption, regulate child labour and apprenticeship, for ancillary matters concerning children generally and to provide for related matters.”108 In
104 Ratification is the action of signing or giving formal consent to a treaty, contract or agreement making it officially valid 105 See Annex 2
106 Ibid 107 Ibid
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this Act, Ghana is obliged to ensure the realization of the rights mentioned in the Act. In the Act the right to education has not been defined. It rather states in section 8 (1) the obligation that “no person shall deprive a
child access to education, immunisation, adequate diet, clothing, shelter, medical attention or any other thing
required for his development.” In section 47 (2), it is mentioned that under ‘education’ must be understood basic education. This is different from the international and regional human rights instruments which refer to ‘education’ as being primary education. The Act does not mention whether this basic education shall be free,
compulsory and available to all. Furthermore, unlike the other human rights instruments, the Act does not
mention the measures that should be taken to realize the access to universal basic education. Since the Constitution is the most fundamental law in Ghana, the Act would apply the measures as mentioned in the Constitution.
3.3.3 The Education Act 2008
The Education Act (Act 778) came into force January 2009. It is the current legal framework for educational policy in Ghana.109 It is an Act “to provide for the establishment of an education system intended to produce
well balanced individuals with the requisite knowledge, skills, values, aptitudes and attitudes to become functional and productive citizens for national development and for related matters.”110
Section 1 mentions the system of education.111 Section 1 (1) recognizes three levels of education. It begins
with the basic education, then the second cycle education and the tertiary education. Section 1 (2) mentions that basic education consists of two years of kindergarten education, six years of primary education, and three years of junior high school education. This is in total 11 years. According to section 2 (2) basic education is free and compulsory. Compared to the international and regional human rights instruments it does not mention anything about availability. Furthermore, the State has the obligation to provide for course of instruction for a child to attend school. 112
109 ‘Right to education country factsheet Ghana’ (Right to education project, February 2012), 6 110 Objective of the Education Act 2008
111 See Annex 2
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3.4 Education reforms and access to basic education
3.4.1 Ghana’s Education Reforms
Basic education structure has its roots from Ghana’s colonial past. At the end of the colonial period the government proposed a 10-year education expansion plan in 1945 which aimed to achieve universal primary education within 25 years. During that time, in 1951, the Accelerated Development Plan (ADP) for Education was adopted by Osagyefo Dr. Kwame Nkrumah, the First President of Ghana. The ADP gave a structure to basic education and a strategy to improve basic education by abolishing tuition fees.113 To make education
accessible to as many children as possible in Ghana, the Government introduced the Education Act of 1961. Education was to be compulsory for all children from the age 5 to 15 years. Regardless of the fact that tuition fees was abolished, contribution for school books were taken. This made basic education not completely free. Besides that, Ghana was having problems with finance, human capital and buildings. This led up to Ghana not being able to enforce the law on compulsory basic education.114 The Education Reforms
of 1974 introduced the idea of 13 years of pre-tertiary education, but this was not implemented due to the decline of the economy of Ghana. The Education Reforms of 1987 was meant to improve the access to basic education, whereby the pre-tertiary education was reduced to 12 years. In 1995, the FCUBE was introduced to achieve universal primary education by 2005. This was unfortunately not achieved. The Education Reforms of 2002 introduced that two-year nursey schooling for children aged 4 and 5 would become part of the education system. Since 2007 the formal basic education is 11 years, starting with 2 years kindergarten, 6 years primary school and 3 years of Junior Secondary School.115 This is stated in Section 1 (1) of the
Education Act 2008.
3.4.2 Access to basic education: enrolment, attendance and completion
Enrolment and attendance rates of basic education in Ghana have increased over the years. See table 1 for the enrolment rates. The net attendance ratio (NAR) for school attendance was 60.9% in 2000 and was 76% in 2015/16.116 The Millennium Development Goal is to reach a school attendance of 100%. However,
113 K Akyeampong, J Djangmah, A Oduro, A Seidu and F Hunt, ‘Access to Basic Education in Ghana: The Evidence and the
Issues’ (Sussex: CREATE 2007) 4
114 MK Abreh, ‘Influence of wing schools’ complementary basic education programme on provisions of educational opportunities in
northern region of Ghana’ (University of Nairobi 2015) 21
115 Akyeampong (n 113) 8-11 116 Ministry of Education (n 11) 15-36
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children still tend to drop out of school or never attend to school due to various reasons, which will be discussed in chapter 4.
Table 1
Education Level Indicator 2000117 2015/16118 Target (2017)119
Kindergarten GER 50.60% 124% 130%
NER 28.06% 80% 91%
Primary school GER 86.01% 111% 114%
NER 64.85% 92% 94 %
JHS GER 62.25% 88% 95%
NER - 50% 53%
3.5 Monitoring and Enforcement
Beside the international and regional human rights mechanisms, the national mechanisms provide a critical view of the laws and policies and constitute as a tool to identify to which extend the right to education has been implemented and complied by Ghana. The Commission on Human Rights and Administrative Justice (CHRAJ) is the Ghanaian National human rights institution. It protects fundamental rights and ensures good governance for every person in Ghana. It was given a broad mandate to achieve this by the 1992
Constitution of Ghana and its enabling Act, Act 456 of 1993.120 I will be discussing the latest annual report of
the CHRAJ in chapter four. Furthermore, there is the Ghana NGO Coalition on the Rights of the Child (GNCRC). The GNCRC was established in 1996 by the UNCRC, which enjoins NGOs to participate in the
implementation and reporting on the CRC.121 The GNCRC exists to “exists to ensure the promotion and
protection of the rights of children in Ghana through advocacy, public education and awareness creation, membership capacity building and partnership-building with government, civil society organizations
117 ‘Gross and net enrolment ratio by level of education’ (UNESCO Institute for Statistics) 118 Ministry of Education (n 11) 11
119 Ministry of Education, ‘Medium term expenditure framework (MTEF) for 2016-2018. Programme based budget estimates for
2016’ (Government of Ghana, 2016) 36, 39 and 41
120 Commission on Human Rights and Administrative Justice (CHRAJ) Ghana, ‘What we Do’
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development partners and the children themselves.”122 I will be discussing the latest report of GNCRC in
chapter four.
3.6 Conclusion
In this chapter, the relationship between the international and regional law system and the Ghanaian legal framework was assessed. Ghana is a dualistic state, whereby it sees its national law to be a separate and distinct legal system from international and regional law. According to article 75 of the Constitution the international and regional human rights instruments are subject to ratification. Furthermore, the right to education in Ghana complies with the right to education in the international and human rights instruments. The Constitution mentions that basic education shall be free, compulsory and available to all. The only difference is the use of term. The international and regional human rights instruments mention ‘primary education’ and the Ghanaian law mentions ‘basic education’. It both entails an education system of 11 years, as also stated in section 1 (2) of the Education Act 2008. And also child labour has been mentioned by Constitution of Ghana. It states that children should not be subject to child labour which may deprive them from having access to universal basic education. This has also been mentioned by article 32 (1) CRC. A difference with the international and regional human rights instruments is that the law of Ghana does not explicitly mention progressive realization, but it does impose that realization of the right to access to universal basic education must be done through policies and providing educational facilities. The extent to which Ghana complies with the right to access to universal basic education follows from the national mechanisms, which are the CHRAJ and the GNCRC.
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Chapter 4 Universal Basic Education by Human
Rights Indicators
4.1 Introduction
The right to universal basic education has been mentioned in international and regional human rights instruments. This right has also been ratified by Ghana. The right to universal basic education entails that primary/basic education shall be free, compulsory and available to all. This has not been achieved yet, regardless of the different goals and targets set by the MDGs, EFA, SDGs and FCUBE. There are still 486,343 children out of school in Ghana.123 The major obstacles that militate against the successful or
effective implementation and compliance of the right to access to universal basic education in Ghana are child labour, poverty and teenage pregnancy. In this chapter, the implementation and compliance of the right to universal basic education in Ghana will be examined through the use of human rights indicators.
4.2 Reviewing the right to universal basic education in Ghana by human rights indicators
Human rights indicators are developed by the OHCHR to help measure progress in human rights. It provides concrete, practical tools for enforcing human rights and measuring their implementation.124 A human rights
indicator is “specific information on the state or condition of an object, event, activity or outcome that can be related to human rights norms and standards; that addresses and reflects human rights principles and concerns; and that can be used to assess and monitor the promotion and implementation of human
rights.”125 The realization of the right to universal basic education requires the continuous effort of Ghana to
respect, protect and fulfil. To assess to what extent Ghana has implemented and complied with the right to
universal basic education the structural, process and outcome indicators will be used. These indicators bring forward an assessment of the steps taken by Ghana to meet its obligations under the law.126
123 ‘Ghana. Education and Literacy’ (UNESCO Institute of Statistics)
124 OHRCR, ‘Human rights Indicators. A Guide to Measurement and Implementation’ (New York and Geneva: United Nations,
2012) 2
125 Ibid 16 126 Ibid 34
