A Rights-Based Approach to Education

A rights-based approach developed in the 1990s following the collapse of cold war and a necessary rise of globalization. The growing unease about the merits of globalization has fueled the drive to reconnect civil and political with social, economic, and cultural rights (Offenheiser and Holcombe, 2003: 273). Apparently, democracy and rule of law were more pronounced and appealing. In many cases, human rights were associated with democracy and the rule of law and made a new objective of development (Piron, IDS Bulletin 36.1: 20).

Similarly, the Social Development Summit in Copenhagen endorses human rights as an integral part of development while the Vienna Declaration justifies development within the existence of human rights framework (Jonsson, 2005: 47). In other words tdevelopment and human rights are linked. And thus, development¹²² is sustainable when human rights are fully realized. The nub of the approach is to redress the persistent violations of rights by determining a ‘new’ relationship between individuals (citizens) and states. Since globalization engages clientele relationship¹²³ between citizens¹²⁴ and states; then rights are either purchased or treated as charity. To the contrary, human rights are entitlements¹²⁵ or claims (as discussed in chapter one). All human beings are entitled to enjoying such rights. Constantly, Mitlin and Sheela (2005: 8) state clearly that the entitlement for all to have rights is rarely contested. A rights-based approach refers to both a theoretical framework and a practical

122 The central purpose of development is the realization of the potentialities of human person in harmony with community; the human person is the subject not the object of development; both material and non-material needs must be satisfied; respect for human rights is fundamental; the opportunity to full participation must be accorded;

the principles of equality and non-discrimination must be respected; and a degree of individual and collective self-reliance must be achieved (Gready and Ensor, 2005).

123 The relationship between individuals (citizens) and states is an important facet in rights-based approach because it is a determinant factor to defining rights and functionability of main principles. It is easier to claim rights when the relationship between them is based on discharging responsibilities on either part. Cohen (2004:10) utters, such a relationship means that rights-holders bring authority, legitimacy and credibility to the effort to fulfill the rights. Precisely, Gready and Ensor (2005: 10) conceptualizes rights in dimensions of relationships.

124 Citizen connotes someone with rights rather than someone receiving welfare or buying services. And thus, a rights-based approach sees people as citizens (IDS Policy Briefing, Issue 17 May 2003).

125 Entitlements are acquired by virtue of the attainment of rights.

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guide to the realization of objectives towards development. Notwithstanding, the ultimate objective of higher education in the society is economic growth and development.

As a theoretical framework, rights-based puts much emphasis on protection and respect of fundamental human rights under citizen-state relationship. In that sense, citizens are rights-holders and states duty-bearers. There are two major groups (with distinct responsibilities) in this endeavor, namely, rights-holders and duty-bearers. The approach assumes that protection and respect of human rights by duty-bearers leads to a realization and enjoyment of such rights by holders. It obliges duty-bearers the first responsibility to make sure rights-holders are fully satisfied and enjoy all fundamental rights in an equal basis. On theoretical bases, commentators have invariably defined a rights-based approach. First, a rights-based approach is a conceptual framework for the process of human development that is normatively based on international human rights standards and internationally directed to promoting and protecting human rights (Appleyard, OHCHR Asia-Pacific 2002; Theis, 2003;

Ljungman, 2005; Cornwall and Nyamu-Musembi, 2004; Kapur and Duvvury, 2006; UNDP, 2006; Boesen and Martin, 2007; UK Interagency Group Report, 2007¹²⁶; Campese, 2009;

Nowosad, n.d). Defining rights-based approach as standardized norms to protecting and respecting human rights leads to two strong conclusions.

One, the approach is justified through a number of legal and institutional frameworks. In addition to international and national instruments (ratified by states) there are constitutions, ombudsman (human rights commissions), laws and legislatures. Legislature is a prime focus to all states. Policies and laws to protecting and respecting human rights are formulated and enacted respectively by legislatures. Two, in the course of protecting and respecting human rights there is an emphasis of responsibilies to each part. According to rights-based approach, the principal duty-bearer must take all necessary procedures to guarantee their citizens’ rights (Ljungman, 2005: 4). These procedures include: policing, budgeting, and ascertaining revenue resources¹²⁷. Similarly, Cohen (2004: 7) explicates the obligation of government to respect, promote, and fulfill human rights based on international human rights treaties and other standards, as well as on national constitutional human rights provisions. And, withal, Right-holders are not supposed to be mere passive recipients but active subjects that are

126 http://www.crin.org/docs/Inter_Agency_rba.pdf on 3 April 2013.

127 Such as taxation and physical resources.

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expected whenever possible through their actions, discourse or legal claim¹²⁸, to invoke and demand their rights whether individually or collectively (Ljungman, 2005: 4). Second, the approach underscores various principles to enabling protection and respect of human rights by both duty-bearers and right-holders. These are universality & indivisibility, non-discrimination & equality, accountability & rule of law, and participation & inclusion. The following Fig. 3 demonstrates how a rights-based approach works.

Source: Adapted from Helvetas (A Swiss Association for International Cooperation founded in 1955 as a private organization for development cooperation in Switzerland) accessed from http://www3.helvetas.ch/vietnam//wEnglish/plugin-Factsheet_HRBA_final.pdf on 23 March 2013

As a practical guide, rights-based empowers and strengthens, strategically, rights-holders and duty-bearers respectively to discharge their obligations properly. The approach starts by identifying potential problems to the failure of either part to carry out or fulfill their

128 Citizens can make claims on the basis of need ( i.e. to access certain basic goods, due to the fact that all citizens in their capacity as citizens are human beings and thus access to public goods is inalienable right); desert (an individual’s contribution to the good of some part of the community or to the community as a whole); choice (reflects the liberal commitment to the good of individual freedom in the domain unencumbered by claims of need, desert, or other duties).

Human Rights Right Holders Human Being (citizen)

Main Principles -universality &indivisibility -non-discrimination & equality

-accountability & rule of law -participation & inclusion

Duty Bearers Government/State

Claims and enjoy rights Responsibility to protect and respect rights

Figure 3: A Rights-Based Approach

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responsibilities. It identifies poverty¹²⁹ and bad governance¹³⁰ as defiance to the respect and protection of human rights. It defines poverty as social exclusion that prevents actors with potential to shape their own destiny (Offenheiser and Holcombe, 2003: 271). Rights-based approach willfully focuses on people achieving minimum conditions for living with dignity¹³¹. Human dignity is fundamental in rights-based approach. Irrefutably, Lohrenscheit (2005) says all human beings are born with dignity and that dignity is inalienable. Three considerations are put forth: analyzing livelihood, identifying actions towards violation of rights, and remedying violations. UN Charter in Hite (n.d) reiterates “We the peoples … reaffirm faith in fundamental human rights, in the dignity and worth of the human person…

[and] promote social progress and better standards of life in larger freedom”. Rights-Based empowers right-holders to know, claim, access and realize their rights in sundry strategies.

They include promoting awareness on human rights and entitlements; nurturing confidence and skills; advocating and claiming rights.

These strategies or tactics enable rights-holders to make duty bearers accountable. Rights-based approach presumes that accountability is a predetermined condition to a fully realization of human rights. Accountability is as necessary in rights-based as blood is in human body. It demands rights from the realm of obligation nevertheless not charity.

Ljungman (2005) adduced to accountability as a condition for transparency and avenue for challenging and seeking redress for decisions or actions negatively affecting rights. It is quite cognizant the most violator of human rights is at the same time duty-bearer (particularly states). Accountability therefore, helps as blameworthy to all decisions and actions that preclude holders from enjoying inalienable rights. However, empowerment of rights-holders is engineered by education. Lohrensheit (2005) puts cogently that the right to education is an empowerment right, and thus, to realize the right to education the challenges

129 The Australian government defines rights-based approach as an approach that sees poverty as violation of human rights and places elimination of poverty as primary goal of development assistance; while, Swedish government in supporting struggle against poverty sees poverty as equivalent to peoples being prevented from enjoying their human rights, and poverty’s many dimensions are exacerbated by lack of democracy, participation, and empowerment of the poor (DFID, 2003).

130 Bad governance refers to inability of public institutions to manage public resources henceforth failure to guarantee ‘human dignity’ while making best use of all available resources at their disposal. In other words, bad governance is the one lacking democracy i.e. accountability, transparency, people’s participation, equality, etc.

the immediate impact of bad governance is corruption, mismanagement of public resources, poverty, conflicts, unequal treatment of people in the society, impoverishment of the marginalized groups (women, people with disability, children, low-income earners, etc).

131 Kapur, Aanchal and Duvvury, Nata (2006: 7) A Rights-Based Approach to Realizing the Economic and Social Rights of Poor and Marginalized Women, International Centre for Research on Women (ICRW).

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for every country and region will vary on a large scale. This variation is set to be absolute. As powerful as education is for accountability, higher education becomes necessary for right-holders. Arguably, the knowledge acquired from education simplifies accountability by duty-bearers. Claimants must have adequate knowledge of whatever system is that they are living under to claim the rights or apply pressures that will begin to fulfill those rights (Cohen, 2004:

11). The knowledge appropriate to account duty-bearers currently is rehearsed to higher education. Generally, human rights are about empowerment and entitlement of people with respect to certain aspects of their lives.

The rights-based approach again strengthens duty-bearers to successfully fulfill their obligation. The approach instigates various mechanisms such as identifying loopholes for underperformance; capacity building to meeting obligations through service delivery;

cultivating vertical as well as horizontal accountability; and illuminating awareness on their responsibility conferred by international and other instruments of protecting human rights.

There are two concluding remarks. One, human rights claims are one indication of underperformance by duty-bearers. When that happens, it is for the duty-bearer to subsist transparency so that awry decisions and actions are rectified at once. There are multiplex aspects of transparency but outstanding ones are participation and inclusion. Participation and inclusion of all people to protecting and respecting human rights have important contribution in many respects. The supply of information in terms of priorities and ideas on how to realize rights is pertinent. VeneKlasen, et al (IDS Working Paper 235: 5) argue that participation is a process nurturing critical consciousness and decision making as the basis of active citizenship.

He goes further to stipulate that participation involves conflict, and demands a capacity to analyze, negotiate and alter unequal relations at all levels. Reasonably, one can say it is out of these conflicts and demands where accountability and transparency rest. Besides, UK Interagency Group Report (2007:19) contends that participation enables people to realize their rights to participate in, and access information relating to, the decision-making processes which affect their lives; inasmuch as, inclusion builds socially inclusive societies based on the values of equality and non-discrimination, through development which promotes all human rights for all people. Without prejudice, participation and inclusion are avenues to realization of other human rights including education. Therefore, education must be inclusive.

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According to UNESCO (2003) ‘Inclusive Education’, refers to a process of addressing and responding to the diverse needs of all learners by increasing participation in learning and reducing exclusion within and from education. It is a concern of increasing access democratically to all people deserving. Increase in access would mean diversifying both service provision and its financing. Thus, it justifies partly the establishment of private providers and also, finances by the private sector (i.e. students and/or their parents/guardians, private companies, NGOs, etc). Notwithstanding, ‘inclusive education’ is eminent through elimination of all barriers to participation by all people regardless of each one’s economic status, gender, race/tribe or disability. Since private financing extends a bar to poor’s participation in learning then government is entrusted to oversee the guaranteeing of poor’s access to higher education as a human right. Two, in order for duty-bearer to fulfill its obligation there must be adequate resources. Capacity building in terms of resource and/or financial management is reckoned felicitous. Many states in the developing world are challenged when it comes to resources and/or financial management. The naked truth is found out of inconsistencies between available resources and utilization against great violation of human rights. For instance, Africa with vast resources both physical (minerals, land, tourist attractions, etc) and human denotes high violations of human rights than Europe where resources are scarce.

Demonstrably, poverty in Africa disavows a realization of many fundamental human rights.

One explainable cause to poverty is mismanagement of resources. For example, Both Tanzania and Kenya have abundant resources that have either been unutilized or misused.

These resources are such as arable land, minerals, tourist attractions, natural gas, wild animals, water sources (rivers, lakes, and ocean), population (about 40million each country), etc which have greater contribution to revenues. However, the two countries experience inadequate revenue sources. Arguably, resource mismanagement is the most explainable factor to inadequate revenues. To cite a few examples on resources mismanagement; the CAG Report, (Tanzania) in the financial year 2012/2013 identified the problem of overfishing in Lake Victoria (observation was conducted between 2008 and 2011); another CAG report in the financial year 2011/2012 showed inefficiencies in controlling poaching activities especially on elephants which have substantially increased to the extent that a total of a hundred and ten (110) elephants were killed during the year 2011/2012. Recently, incidences of poaching activities on elephants have been reported severally in Kenya; it is now on

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increase. Again, agricultural sector which forms the backbone of the two countries is not modernized (commercialized) to yielding prosperous economic growth.

However, government revenues seem to increase. The CAG report (Tanzania) in the financial year 2011/2012 showed an increase of government revenue collected as at 30 June 2012 by Treasury Registrar in respect of dividends, loan repayments remittances, and other proceeds from TZS 28.8 billion (USD 17.8 million) during the year 2010/2011 to TZS 208.1 billion (USD 129 million) in the year ended 30 June 2012¹³². On the other hand, Economic Survey (2011) shows revenues (including grants and AIA) in Kenya have increased from Ksh. 387.4 billion (USD 4.4 billion) in 2006/2007 to Ksh. 531 billion (USD 6 billion) in 2008/2009 and Ksh. 643.3 billion (USD 7.3 billion) in 2009/2010¹³³. Despite such creditable increase much more have been either misused or outstanding (and/or wasted through tax exemptions). One of the factors to undesirable state of revenues (explained by inability of revenues to sufficiently match with expenditures) is that the governments of Tanzania and Kenya are less accountable to the people; citizens are not active; and democracy is highly questionable. As a result, corruption is at unprecedented heights and revenue sources go down the drain. The following hereunder is a clear demonstration of such.

Transparency International which measures corruption perceptions in public sector ranked Tanzania and Kenya in 2012 as most corrupt countries after scoring 35 and 27 out of 100 respectively. Regionally, 90% of Sub-Saharan Africa score below 50 with Botswana at the top and Somalia at the bottom. In 2013, the Transparency International’s Global Corruption Barometer conducted public opinion survey on views and experiences of corruption in the world; in Kenya 1121 people were interviewed in a national survey in October and November 2012 using face to face interviews. The results were (a) 33% (majority interviewee) said corruption has increased a lot in Kenya; and (b) to a greater extent Kenya’s government is run by a few big entities acting on their best interest. Overall, Kenya was listed the forth most corrupt country in the world corruption ranking and the leading most corrupt country in East Africa followed by Uganda and Tanzania (Sudan Tribute, 10 July 2013; Sabahi Online, 10

132 Conversion is USD 1 equals to TZS 1613 as at 18 September 2013 from http://coinmill.com/TZS_USD.html#USD=1

133 Conversion is USD 1 equals to Ksh. 88 as at 19 September 2013 from http://coinmill.com/KES_USD.html#USD=1

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July 2013; the Kenya Daily Post, 10 July 2013; The Standard Newspaper, 9 July 2013; K24 News, 9 July 2013; KTN News, 9 July 2013). In addition the Ethics and Anti-corruption Survey conducted public opinion on national corruption perceptions between July 2010 and June 2012 and found that corruption is high within institutions such as the police, immigration department, provincial administration, judiciary, and counties (KTN News, 17 August 2013).

For purposes of evidences the study was able to explore an endless number of both grand and petty graft scandals starting from 1990s to date. These include: (i) Goldenberg scandal which costed Kenya equivalent of more than 10% of country’s annual GDP (about USD 600 million). The money was paid for non-existent exports of gold and diamonds; (ii) the irregular tender for the Navy Ship Deal which costed Ksh. 4.1 billion (while a similar vessel could have been built for Ksh. 1.8 billion); (iii) Anglo-Leasing scandal which costed GBS 20 million (€30 million) from the original quote of €6 million. The deal started in 1997 and spanned several years (until 2005). It was about a contract between Kenya and French company over passport equipment system only to be awarded to British Firm at a higher price; (iv) Grand Regency scandal occurred in 2008. and (v) Theft in the ministry of education in 2011. In parliament, the then Minister for Finance (currently, the President of Kenya) Uhuru Kenyatta presented results of an internal investigation which found that over Ksh. 4.2 billion was missing from the Ministry of Education. Interestingly, the money was set to finance free primary education.

The experience of corruption in Kenya is not significantly different from Tanzania.

Richmond/Dowans Saga and Radar Scandal have had major impact to the economy and citizens welfare at large. Richmond/Dowans Saga started after TANESCO contracted Richmond Development Company to supply electricity. In 2008 Dowans took over because Richmond did not perform to the expectation and agreement. After a hot debate in parliament over the issue, which led to resignation of the then Prime Minister, Edward Lowassa and other two former ministers in the Ministry of Energy and Minerals; TANESCO breached the contract with DOWANS. DOWANS went to the International Commercial Court demanding compensation. The Court ruled in favour of DOWANS and TANESCO was required to pay DOWANS a total of USD 65.8 million (TZS 106.4 billion). The Rada scandal involves the purchase of a military radar system from BAE Systems, UK. The purchase did not follow

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procurement procedures. Consequently, the Minister for Infrastructure resigned in 2008 to allow investigations. After investigations by Serious Fraud Office (SFO) of the UK, it was found out that about USD 1 million was stashed away in an offshore account as kickbacks from the military radar deal. Britain promised to send back the money to Tanzania.

However, the reports of the CAG, 2009/2010; 2010/2011; 2011/2012, 2012/2013 have consistently shown persistent weaknesses on procurements by the government which have led to grand and petty corruption in Tanzania. The reports say some public authorities are still not

However, the reports of the CAG, 2009/2010; 2010/2011; 2011/2012, 2012/2013 have consistently shown persistent weaknesses on procurements by the government which have led to grand and petty corruption in Tanzania. The reports say some public authorities are still not