The precise wording is very important for any constitution or legislation. The more ambiguous the wording, the more ways there are to interpret the provision, and the easier it is for the government to fail in its duty to provide the right to education. Legal documents are notoriously difficult to understand, often containing jargon and difficult language. It can be helpful to access legal expertise in analysing documents.
Any constitutional provision on the right to education should be binding and unambiguous, conferring clear obligations on the government. The constitution should include clear language on the nature of the right; who has the right; and the responsibilities of the government. It should also include a clear statement on the right to remedy for human rights violations, and a mechanism for holding the government to account. In some cases the constitution actually specifies a percentage of national budgets which is dedicated to education. This can be a powerful mechanism for arguing for proper investment in education, and for making funding obligatory rather than discriminatory.
‘Everyone has the right to education. Mandatory school education is determined by law.’ It is unclear from this extract whether the constitution makes education mandatory or if further legislation is required. ‘Mandatory education and general high school education in public schools are free.’ The only thing that is certain is that everyone should attend high school and it should be free. However, it is not clear who should provide the education. It is certainly arguable that the State should provide it, but the law does not say anything to obligate them to do so. This is a real weakness as it suggests that no one could easily be held accountable for the failure to provide education.
‘The State shall adopt effective (key word) measures for the purpose of: establishing a uniform, mass-oriented and universal system of education and extending free and compulsory education to all children to such a stage as may be determined by law.’ This extract clearly identifies the State as the body responsible for providing uniform education for all. The only limitation is the phrase ‘as may be determined by law’. However, this refers only to the extent (years) of free education, but does not give the option as to whether or not to provide free education.
The Bangladeshi extract confers far greater responsibility on the government than the Albanian one. It should be noted that both include the vital aspect that the right to education should be made available for all children
In other cases it might be more appropriate to focus on new legislation, rather than a constitutional amendment. This will depend on your country context and the comparative strength of the different documents, the ease of engagement, etc. The focus of the new legislation will also be highly contextualised. For example, if the right to education exists, but is not clearly defined, you might campaign for the bill with a broad focus – guaranteeing the right to free compulsory education for all. Or, if there is legislation in place but certain groups are being denied their right, you might prefer to focus on the particular group which is facing discrimination – this could be girls, disabled children, pastoralists, etc.
In framing the bill it will be important to consider the provisions of existing international treaties, as well as looking at the general comments of treaty bodies, the constitutions or education bills from other countries, and the ‘4 A’ indicators (developed at local level). It is also important to make sure that the wording is clear and unambiguous. As with any mobilisation effort, you will need to consider a range of actions to achieve the aims. This will include working with other organisations; building relationships with government, especially the legislature; and raising public awareness and profile for your demands.