What do African courts say about banning pregnant girls from school?
Across many African countries pregnant girls continue to face discrimination and various challenges to access education. This year, Tanzania and Sierra Leone specifically have been making headlines due to their official policies banning pregnant girls from school.
In June 2019, the Center for Reproductive Rights and the Legal and Human Rights Centre filed a Complaint before the African Committee of Experts on the Rights and Welfare of the Child challenging the expulsion and exclusion of pregnant girls from public schools in Tanzania. The Complaint was filed on behalf of female students in Tanzania and alleges violations of the African Charter on the Rights and Welfare of the Child and other international and regional human rights instruments ratified by the country. The decision is still pending.
On 12 December 2019, the Economic Community of West African States (ECOWAS) Community Court of Justice will deliver its judgment in a case brought against Sierra Leone by civil society organisations challenging its ban on visibly pregnant girls from attending school and sitting exams. It is the first time a regional court in Africa will make a ruling on the issue and has the potential to set an important precedent concerning the right to education without discrimination and impact the rights of pregnant girls across the continent.
However, this is not the first time that domestic courts have addressed the issue.
Challenging the status quo
Various African courts have held exclusion from education on the basis of pregnancy to be discriminatory, and in some cases a breach of the right to education.
More than 20 years ago, in 1995, the Botswana Court of Appeal reviewed Regulation 6 of the Teacher's Training College, which demanded that students inform the college authorities as soon as a pregnancy was confirmed. According to the regulation, students who became pregnant between December and April would be forced to leave the college immediately and those whose pregnancy was confirmed between May and November would be required to miss the next academic year. If a student became pregnant for the second time while at college, the institution had the right to expel her. The Court of Appeal held that Regulation 6 was unfairly discriminatory as it involved a “purely punitive” purpose and was not made for the benefit of the affected student, despite claims to the contrary. The Regulation unreasonably and without justification denied pregnant students the opportunity to continue their education, while male students involved were subject to no such exclusion. The Regulation was held unconstitutional and in this specific case the barrier impeding the pregnant students’ right to education was lifted.
Four years later, in 1999, the Supreme Court of Zimbabwe held that the expulsion of a female student who became pregnant while attending the teacher training college constituted gender based discrimination and was contrary to public policy in a country where concerted efforts had been made to eliminate discrimination on the grounds of sex and gender. The case related to a clause in a student college contractual agreement requiring women to withdraw from the college if they became pregnant.
More recently, in 2013, the Constitutional Court of South Africa ordered two public high schools to review their policies which provided for the temporary exclusion of students who were found to be pregnant. The Court ruled that the polices were prima facie unconstitutional, violating the rights to freedom from discrimination and to a basic education.
This case law is reflected in Latin America where courts in Peru, Chile and Colombia have similarly held that exclusion from education due to pregnancy constitutes gender discrimination and a violation of the rights to education and equality. The InterAmerican Commission of Human Rights has also held that States which are party to the American Convention of Human Rights have an obligation to ensure that schools (public or private) do not discriminate against students due to pregnancy. If States do not ensure this, they violate the student’s right to honour and dignity, and also equality before the law.
Where to from here
At a recent event to mark the 30th Anniversary of the signing of the UN Convention on the Rights of the Child, Sierra Leone’s President Bio stated, "My government will not allow pregnant girls to attend schooling for them not to influence other girls, as they are not good examples to be followed by young girls in school. We had little divergence of opinions on whether pregnant school girls should go to school. I have not seen that anywhere in the world.”
African jurisprudence contradicts officials who state that the exclusion of pregnant girls from education is accepted across the continent. Policy makers have a duty to familiarise themselves with comparative law and policies across the continent and indeed international and regional standards which uphold the right to education without discrimination instead of reinforcing language and views which blame and stigmatise pregnant girls.
(Main image: Adolescent Girls at Community Center in Uganda - Neil Thomas/Corbis via Getty Images)
The opinions expressed in this article are those of the author(s) and do not necessarily reflect the views of SAIIA or CIGI.