For attention:
Prof SM Mayatula
Committee Chair
Portfolio Committee on
Education
C/O Ms Phumza Mpoyiya
13
06 September 2007
Dear Prof Mayatula
RE: SUBMISSION
ON THE EDUCATION LAWS AMENDMENT BILL [B33 – 2007]
Please find attached a submission from Resources
Aimed at the Prevention of Child Abuse and Neglect on the abovementioned
Bill.
We request the opportumnity to make an oral
presentation to the committee.
Yours Sincerely
Ms Samantha Waterhouse
Advocacy Manager
Resources Aimed at the Prevention of Child Abuse and
Neglect (RAPCAN)
Resources Aimed at the Prevention of Child Abuse and
Neglect (RAPCAN)
SUBMISSION[1]
To the Portfolio Committee on Education
ON THE EDUCATION LAWS AMENDMENT BILL [B33-2007]
September 2007
13
INTRODUCTION
RAPCAN welcomes the opportunity to comment on the
abovementioned bill. We will comment
primarily on section 7 of the Bill which relates to random search and seizure
and drug testing at schools.
School safety is a critical issue to learners,
parents and educators in
ABOUT RAPCAN
Resources Aimed at the Prevention of Child Abuse and
Neglect (RAPCAN) is an NGO focused on children’s rights and protection in the
Our programmes include community training and
development, training of teachers and the development of materials and
resources for children, parents and service providers to enhance implementation
of children’s access to appropriate care and support. We run a child witness project in conjunction
with the National Prosecuting Authority and the Department of Justice at six
sexual offence courts in the
SUBMISSION ON SECTION 7 OF THE EDUCATION LAWS
AMENDMENT BILL [B33-2007]
Sources of information for intervention programmes
It is important that intervention to address violence
and drugs at schools be based on reliable sources of information.
Information available to the public tends to reflect
only the most outrageous and horrific instances of violence. These probably
represent just one small part of the crime and violence problem that schools
are regularly faced with. Newspaper
reports over the past few months have highlighted incidents that indicate that
schools across the country are indeed subjected to serious crime. These reports
reflect a relatively small number of incidents in which learners are
responsible for the extreme violence. Yet, in addition to this the reports
indicate that community members, gang members are more often responsible for
perpetrating serious violence against learners and educators[2]. In addition, reporting has been biased
towards more often illustrating the victimisation of educators by learners[3],
without similar focus being given to the victimisation of learners by educators[4].
There is currently a lack of reliable information
relating to the true nature and extent of crime and violence in schools.
Information relating to the numbers of learners and educators who perpetrate
violent incidents (this
includes corporal punishment) at school; the rate of
victimisation of learners and educators; the extent to which violence in the
community impacts on schools; and information on the forms of violence to which
learners are exposed at school is critical to the development of appropriate
preventative and responsive policies for Educations departments and schools.
There have been very limited efforts by the Department of Education to ensure
that such data is collected. The absence of this data weakens the ability of
the Department of Education to establish responses that are relevant to the
diverse environments within which schools operate.
Recommendation
·
Measures
to address violence and drug use at schools must be based on reliable
information to ensure the applicability of the measures.
Comprehensive approach to school safety
The provisions that this Bill introduces regarding
search and seizure represent only a narrow element of what is required to
adequately address the issue of violence and drugs in schools. This is an
inherently reactive approach to complex problems that require strategies that
are oriented towards both prevention and management. School crime, violence and
substance abuse can be reduced by developing comprehensive safe school plans
that are integrated into the overall school improvement process[5]. To date comprehensive school safety policy
has not been developed, in spite of several attempts to address the issue. These efforts include the COLTS campaign,
which post 1994, sought to restore the culture of learning and teaching in
schools. This was followed by Minister Kader Asmal’s Tirisano programme in 1999[6]
including the Signposts for Safe Schools resource book that was later developed
with the South African Police Service[7].
More recently, there have been attempts by the Department of Education to
develop to school safety framework, but little has come of these efforts[8].
The dominant approach in international crime
prevention practice relates to the implementation of ‘evidence-based’ approaches.
This approach acknowledges that only those approaches that have shown, through
exhaustive evaluation to have merit, should be implemented. Research into best
practice and what works regarding school safety planning indicates that it is
necessary to adopt a comprehensive approach that addresses prevention,
intervention and response to issues of violence and drugs in schools[9]. It must include a school-wide approach to
discipline that ensures that the educators and other school staff act as
positive role models and are held accountable[10]. Prevention programmes must address the risk
factors and promote protective factors[11],
they should start early (as early as pre school[12])
and include ongoing interventions that reinforce the lessons and continually
promote pro social behaviour[13].
“…School safety is not about any one method of
control: metal detectors, surveillance systems or swift punishment. Nor is it about any single risk factor such
as dysfunctional homes and inadequate schools.
We have learned that we cannot identify with certainty those students
who, for reasons clear only to themselves will assault their teachers and
peers. We now understand that safe
schools require broad-based efforts on the part of the entire community,
including educators, students, parents, law enforcement agencies, businesses
and faith based organisations[14].”
The National Resource Centre for Safe Schools (in the
·
Creating
school-wide prevention and intervention strategies.
·
Developing
emergency response planning
·
Developing
school policies and understanding legal considerations
·
Creating
a positive school climate and culture
·
Implementing
ongoing staff development
·
Ensuring
quality facilities and technology
·
Fostering
school/law enforcement partnerships
·
Institutional
links with mental health and social services
·
Fostering
family and community involvement
·
Acquiring
and utilising resources
The National Resource Centre for Safe Schools further
indicates that the following strategic process is necessary for the design and
implementation of a comprehensive plan.
This includes:
·
Developing
school/community partnerships
·
Conducting
a comprehensive needs assessment in the school and community
·
Developing
a comprehensive school plan
·
Identifying
strategies and implementing programmes
·
Conducting
evaluation
·
Sharing
outcomes and making adjustments
By ensuring that responses are based on reliable
information regarding the nature and extent of school violence and drug use by
learners we can begin to establish comprehensive school safety policy. The response of the Department to school
safety must address the full range of needs and not only seek to respond to the
most visible. The Department should seek
to provide legislation or policy that relates to all these aspects, and
provisions relating to searching and drug testing should form only a single
component of a more complex school safety plan.
This narrow response to the complex situation supports the notion that
children are the problem and not that the problem lies in a range of areas
including the conduct of teachers and the impact of community violence.
It must also be noted that searching for a dangerous
object will not address the range of objects with which learners may commit
acts of violence, which may include scissors, bats and tools. It is therefore
more important and useful to address the reasons why learners and educators
resort to violence than to attempt to remove weapons from learners.
Overall, the kind of approach adopted in this Bill is
limited in its scope and potential for success. It reflects a limited concern
for the safety of children on school property rather than an interest in
promoting the overall safety and well-being of children as citizens. It relegates
children to being defined as part of the problem rather than part of the
solution to the many crime problems being experienced.
Recommendations:
·
The
Department of Education undertake/finalise a comprehensive situation analysis
of violence in schools.
·
The
Department develop a comprehensive
The rights of learners and educators
We recognise that the provisions in this Bill
represent an attempt to provide some measure of protection to learners and
educators from violence at school. The approach is taken of balancing the
rights of educators and learners to life and to be free from violence with the
rights to dignity, privacy and bodily integrity of all learners. We believe
that the current provision in the Bill fails to adequately balance these rights
as it allows for searching of a wide range of learners by a wide range of
people including educators and the manner of the searching is not clear and
thus open to intimate searching of learners which would unjustifiably violate
learners right to dignity, respect, bodily integrity and privacy. The current construction of the provision
makes learners more vulnerable to victimisation and abuse by educators.
The assertion that “children do not shed
their constitutional rights at the school-house door”[16]
should remain foremost when formulating policy of this nature. It is important
to invest in careful consideration of the rights of all parties concerned. The current provision in section 7 of the
Bill relating to section 8A(3)(a)(i) which requires that the best interest of a
learner or any other learner at the school be taken into account provides no
real assistance to schools regarding how best to balance these rights.
Section 36 of the Constitution is clear regarding the
very specific conditions under which rights may be limited. In this case, the
purpose for which the rights of children are being limited is the achievement
of safety in schools. We submit that, based on the available evidence as discussed
above, that the limitation of these rights will alone not achieve the intended
purposes.
§
In
terms of the Convention, legislation (such as this which provides for the
detention of children for the purpose of searching) is required to criminalise
any act of torture or cruel, inhuman or degrading treatment (Article 4). This
will make anyone guilty of such acts guilty of a criminal offence
§
Article
10 requires that personnel involved in the “custody, interrogation or treatment
of any individual subjected to any form of arrest, detention or imprisonment”
be trained in relation to the prohibition of torture
§
Article
11 will compel the Department of Education to “keep under systematic review
interrogation rules, instructions, methods and practices as well as
arrangements for the custody and treatment of persons subjected to any form of
arrest, detention or imprisonment…”
In addition, all schools will come under the scrutiny
of the preventive mechanisms that
It should also be noted that in its response to the
first Country Report presented by the South African government in November
2006, the Committee against Torture expressed its dissatisfaction at
It may be argued, that where children are already
believed to be at risk of physical abuse by educators, the provisions of this
Bill increase their vulnerability to abuse, and should be viewed with extreme
caution.
Recommendations:
·
This
Bill must aim to ensure that the rights of all concerned are more effectively
balanced through ensuring that the provisions of the legislation minimise
opportunity for unjustifiable rights violations.
·
The
Department of Education’s obligations in terms of the Convention against
Torture and Cruel, Inhuman and Degrading Treatment as well as the Optional
Protocol to the Convention, must be examined and appropriate adjustments be
made to the provisions of this Bill.
Searching by School Principals and Educators (Section
8A(2), 8A(3)and 8A(4))
The provision effectively empowers not only school
principals but also delegated educators at a school to undertake these
searches. While some schools may
identify specific educators, others may allow all educators to conduct searches
on learners. This is concerning due to
the impact of this on existing levels of abuse of power by educators on
learners with reports indicating sexual abuse. The impact of searches may
exacerbate the experiences of those learners who have been subjected to sexual
abuse in other settings.
The primary function of educators is to educate. The
introduction of a policing function of this nature is likely to severely
undermine the educator/learner relationship. Introducing this responsibility to
educators risks creating a “prison like environment due to undue privacy
invasions[19]”
and this may result in learners feeling powerless and further entrench the
existing culture of disrespect and mistrust between educators and learners.
This is particularly problematic in a context where it is necessary for
educators to build relationships with children to enable the learning process,
rather than relying on punitive measures such as threats and corporal punishment as the means
of creating control.
In addition, allowing educators to conduct searches
has an impact on the complaints and accountability processes available to
learners who have been searched. The
complications include: how will an educator continue to teach and assess a learner
that has made a compliant against him/her? This kind of situation may prevent
learners or their parents from seeking recourse against the abuse of learners
through the search process. This can be
avoided by ensuring that searches are conducted only by officials who do not
teach and assess learners.
Lastly any person searching potentially dangerous
learners for dangerous weapons must be trained to ensure their own safety and
that of others in the school. Without
special training and skills principals and educators conducting searches may be
more vulnerable in some instances.
Recommendations:
·
Searching
of learners by educators must be avoided at all costs.
·
Principals
or educators may only be authorised to search the property of learners and not
the body of a learner.
·
Complaints
procedures and accountability mechanisms to address complaints regarding search
and seizure must be put in place.
Learners must be informed of these mechanisms and procedures.
·
Searches
must only be conducted by persons trained to manage potentially dangerous situations
to ensure the safety of all concerned.
Random searches vs. searches based on reasonable
suspicion (Section 8A(2), 8A(3)(a)(iii)
and (iv) and 8A(8))
School safety policies draw a distinction between
random searches and searches based on reasonable suspicion[20]. Random searches are conceptualised as
generalised searches which are intended as a broad based preventative
measure. The property of large numbers
of learners is searched in such processes.
Reasonable suspicion searches are seen as an intervention mechanism
which is only indicated when there is a reasonable suspicion and evidence to
support the suspicion that a particular learner has violated the code of
conduct of the school or a law[21].
The Virginia School Search Resource Guide defines “reasonable grounds” as “A
suspicion that is based on reasons that can be articulated. It is more than a mere hunch or suspicion,
but less than the level of proof than would be required to impose a
disciplinary sanction”[22]
The provisions of this bill do not draw this
distinction but rather create confusion by referring to random searching at the
same time as qualifying this to state that searches can only be conducted on
reasonable suspicion.
Recommendations:
·
The
term random should be deleted from 8A(2) and 8A(8) to avoid confusion.
·
The
term ‘reasonable suspicion’ should be changed to ‘reasonable grounds’ and
defined.
Method of search (Section 8A(2) and 8A(2)(e))
Section 8A(3)(b) provides that the search must be
conducted in a manner that is reasonable and proportional to the suspected
illegal activity. The current provisions
of the Bill and formulation of this clause are entirely inadequate.
The considerations relating to searching learner’s
property are different to those of searching the learner’s body. We believe that the implications of the
latter are far more serious and complicated than those of the first.
Searching a learner’s property
We believe that searching the property of a learner
may be justifiable in terms of section 36 of the Constitution in the event that
it is undertaken based on reasonable grounds.
Searching the property of a learner would include:
·
Bags
and other containers in the child’s possession
·
Outer
clothing such as blazers, jackets and jersey’s
·
Pockets
·
Socks
and shoes
·
Hats
It must not include the removal of
clothing that such as shirts, shorts/pants or skirts/dresses.
It is still necessary to ensure that
searching the property of a learner is conducted in a reasonable and
proportional manner to the suspected illegal activity.
Recommendations:
·
The
term “property of a learner” must be defined.
·
Guidelines
for the place and method of searching the property of a learner must be
prescribed to provide more detail than that which is provided in section 8A(4)
·
Searches
of learners’ property may only be conducted by designated and specially trained
school officials, including principals using a prescribed method.
Searching a learner
The Bill is silent on the limitations of searching
the body of the learner, thus the provisions of the Bill currently extend from
conducting a pat down search (a pat down search could include touching the
learners breasts or genital area) of the learner to strip searches and even
cavity searches.
In the event that it is suspected that a
learner is hiding drugs in their underwear an educator is, according to this
Bill, empowered to conduct the search in a manner that is reasonable and
proportional to the suspected illegal activity and thus could feel the child’s
genitals or breasts or request a strip search in such instances.
According to the School Search Resource
Guide from Virginia USA “Strip searches are searches that reveal
undergarments or constitute the viewing of students’ breasts, buttocks or
genitals”[23].
This would undoubtedly amount to a profound invasion of the rights to
privacy, dignity and bodily integrity.
In addition the potential for harm and abuse under such circumstances is
great, this is in no way mitigated by the fact that searches would be conducted
by educators of the same gender as the learner.
Recommendations:
·
Section
8A(4) must be amended to ensure that body searches may only be conducted in
extreme circumstances and on no account should they be conducted by principals
or educators.
·
In
cases where searches of learners are indicated members of the SAPS or specially
appointed and appropriately qualified security officials must conduct such
searches.
·
Any
person conducting a search of a learner must be specially trained to work with
children
Search in the presence of a witness (Section 8A(4)(c))
With reference to the previous point, in the event
that a member of the SAPS or appropriately qualified security official
undertakes a search of a learner, we support the provision that a witness be
present during a body search. However it
is important to ensure that a learner who is being subjected to a body search
is not unnecessarily exposed to intimidation by the presence of numerous
officials.
Recommendations:
·
The
learner must be given an opportunity to request the presence of a particular
witness who is not another learner and is a person of the same gender as that learner. This witness should be readily available to
witness the search and the presence of such witness must not unnecessarily
delay the search procedure.
·
In
the event that the learner does not request a particular witness officials must
decide on a witness of the same gender as the learner.
Random urine testing (Section 8A(8) and (9))
The purpose of random urine testing is not
articulated in the Bill. As discussed earlier,
the Bill also creates confusion about random urine testing of learners and
urine testing based on reasonable suspicion.
We wish to highlight and support the provisions of
the National Policy on Management of Substance Abuse in Public and Independent
Schools and Further Training Institutions which states the following:
“There is no empirical evidence or justification for
routine random testing of learners to reduce usage. Drug testing should be used when there is
reasonable suspicion that a child is using drugs. Testing may be implemented as part of a
structured intervention or relapse prevention programme in an environment that
is committed to safeguarding personal rights relating to privacy, dignity and
bodily integrity according to school policy, medical/treatment procedures and
ethical guidelines”[24]
In light of the above drug testing of learners who
are reasonably suspected of using illegal drugs should be undertaken as part of
a process of rehabilitation of a child and as such should be part of a
constructive and not a punitive process.
The Department of Education (through the school
health clinics) in conjunction with the Department of Social Development should
jointly address this issue within the broader framework of a drug and alcohol policy.
The objective of both these Departments should be the promotion of the overall
health of children rather than the adoption of a law enforcement orientation to
the problem of substance abuse.
Unlike the possession of dangerous objects or drugs
at school, a positive result on a drug test does not imply that the use of the
drugs took place on the school property or during school activities.
Rapid urine tests do not provide reliable
information. They do not give an
indication of how much the drug has been used, how frequently or when last the
drugs were taken. It must also be noted
that Mandrax cannot be tested for in a rapid urine test, this would imply more
costly testing to test for this substance.
In addition, the tests are unreliable, for example a learner who has
taken medication which contains codeine will test positive for an opiate
(heroin).
Recommendations:
·
Random
urine testing for drugs must not be done at schools.
·
Testing
of learners suspected of using drugs must only be done within a framework of a
range of interventions to assist and support that learner.
·
Legislation
must provide for guidelines to be established for the taking of urine samples
to ensure maximum protection to the learner’s right to privacy.
[1] Submission prepared by Cheryl Frank, Executive Director of RAPCAN and Samantha Waterhouse, Advocacy Manager of RAPCAN
[2] Search on www.iol.co.za
for school violence between March 2007 and May 2007.
[3] Kassiem A, Stressed teachers fear ‘hostile’
[4] Waterhouse S, (2006) Report on RAPCAN
junior youth participation process on violence in schools pp9 - 10
[5] Pollack I and
Sundermann C (2001) Creating Safe Schools: A Comprehensive Approach.
Journal of Juvenile Justice, v8 n1 June 2001 p13
[6] Asmal K, (1999) Call to Action: Tirisano Department of Education
[7] South
African Police Service and Department of Education (2002) Signposts for Safe
Schools Tirisano
[8] School Safety Framework (2003) CSIR Crime Prevention Centre
[9] School-Based
Violence Prevention Programmes: A
[10] Elliot D,
Grady J, Heys L, Ntepp R, Williams S
(2002) Safe Communities – Safe Schools Safe School Planning and Law Related
Issues: A Tool for Community Violence Prevention Efforts Centre for the
Study and Prevention of Violence, University of Colorado p17
[11] Hawkins JD,
Catalano RF, and Arthur M, (2002) Promoting science based prevention in
communities. Addictive Behaviours 90(5): 1-26. In www.drugabuse.gov
NIDA InfoFacts: Lessons from Prevention Research
[12] Webster-Stratten
C, Reid J, and Hammond M. (2001) Preventing Conduct Problems, Promoting
Social Competence: A Parent and Teacher Training Partnership in Head
Start. Journal of Clinical Child
Psychology 30: 282 – 302. In www.drugabuse.gov
NIDA InfoFacts: Lessons from Prevention Research
[13] Scheier L,
Botvin G, Diaz T and
[14] Pollack and
Sundermann C (2001)
[15] Ibid p14
[16] Goss V Lopez,
419 U.S. 565 in Elliot D, Grady J,
Heys L, Ntepp R, Williams S (2002) Safe Communities – Safe Schools Safe
School Planning and Law Related Issues: A Tool for Community Violence
Prevention Efforts Centre for the Study and Prevention of Violence,
University of Colorado p22
[17] United Nations Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment.
[18] Optional Protocol to the Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
[19] Goss V Lopez,
419 U.S. 565 in Elliot D, Grady J,
Heys L, Ntepp R, Williams S (2002) Safe Communities – Safe Schools Safe
School Planning and Law Related Issues: A Tool for Community Violence
Prevention Efforts Centre for the Study and Prevention of Violence,
University of Colorado p22
[20] Ibid
p28
[21] Ibid p23
[22] Atkinson
A (Ed) (2000)
[23] Ibid p27
[24] Government Gazette
24172 (2002) in Fisher S (2007) Letter to the editor of the