EXECUTIVE SUMMARY
Freedom of Religion South Africa (FOR SA) recognises - in light of the high rates of teenage pregnancy, HIV and sexually transmitted diseases (STDs), gender violence, etc. – that the Department of Basic Education (the Department) can claim that it has a legitimate responsibility to include sex education in the Life Orientation and/or Life Skills curricula.
However, it is the Department’s constitutional duty to show – beyond doubt – that the development and implementation of its revised sexuality education content (now called Comprehensive Sexuality Education or “CSE”) is in the best interests of South Africa’s children.[1]
FOR SA argues – with more detail set out below in this document – that the Department has failed to meet this standard. As such, we call upon Parliament to remedy the following:
BACKGROUND
In September 2019, the Department briefed the Parliamentary Portfolio Committee on Basic Education (the Portfolio Committee) and issued two media statements, dated 6 September 2019 and 17 September 2019 respectively, in justification of its continued push for the implementation of CSE as part of the mandatory Life Orientation and/or Life Skills curricula in public schools.
This development is both highly emotive and controversial, particularly because there is no legal obligation (either in terms of international or domestic law) on the Department to revise or implement CSE.
Furthermore, there has been a woeful lack of consultation and transparency during the developmental process of the revised curriculum. It is FOR SA’s contention that the Department has largely circumvented engaging with critical stakeholders (particularly parents, School Governing Bodies (SGBs) and teachers) regarding the actual content to be implemented in the Life Orientation and Life Skills curricula.
FOR SA has been involved since this issue was first raised and, as a legal advocacy organisation for religious freedom, we are writing to detail our response to the Department’s position.
PARLIAMENT’S POWERS AND RESPONSIBILITIES
FOR SA agrees that the Department must consider the facts that South Africa’s HIV infections, teenage pregnancies, etc. are problems that need to be tackled head-on, and that our learners should know about the risks, consequences and responsibilities of sexual activity. We also appreciate the fact that the Department has to navigate the practical realities of a diverse society with different familial and social contexts, where South Africa has differing levels of parental involvement and presence in learners’ lives.
We also note that, according to the Department’s own statistics, both the rate of HIV infections and teenage pregnancies are decreasing and being lowered – arguably in part as a consequence of teaching the current (old) sexuality education content in the curriculum.
In terms of our Constitution however, one of Parliament’s most important functions and responsibilities is to ensure government BY the people through scrutinising and overseeing the actions of the executive and its exercise of authority – e.g. its implementation of national policy etc.[2] This means that Parliament has the power to demand that the Department review its curriculum should they believe that the Department’s curriculum choices (in this instance the development and implementation of the revised CSE content) are not reflective of, or are in conflict with, the clear wishes of the people of South Africa and/or the rights granted by the Constitution of South Africa.
In this regard, FOR SA highlights the serious concerns for which the Department needs to account, as follows:
1. THE LACK OF CONSULTATION
The Department is planning to roll out a national curriculum, unilaterally, without any meaningful consultation with critical stakeholders (particularly with parents, teachers and their representative bodies).
Instead of meaningful consultations with stakeholders in advance, the Department has chosen to draft orientation manuals (i.e. to “sensitise” them to accept the CSE content). Furthermore, it should be noted that the Department resorted to drafting Scripted Lesson Plans (SLPs) to overcome teachers’ own values and reluctance to teach CSE (see page 60 of this report).
According to binding international law[3] however, parents are primarily responsible for their children’s well-being and have the right to guide and direct their children’s education and upbringing, including religious and cultural education.
In similar vein, according to domestic law, parents have the right to care for their child, which includes protecting their child from exploitation and physical, emotional or moral harm.[4]
According also to the Department’s White Paper on Education and Training (Notice 196 of 1995) - (Chapter 4 item 3): “Parents or guardians have the primary responsibility for the education of their children, and have the right to be consulted by state authorities with respect to the form that education should take and to take part in its governance. Parents have the inalienable right to choose the form of education which is best for their children, particularly in the early years of schooling, whether provided by the State or not, subject to reasonable safeguards which may be required by law. The parents’ right to choose includes choice of the language, cultural or religious foundation of the child’s education, with due respect to the rights of others and the rights of choice of the growing child.”
The South African government, however well-meaning its interventions, is obliged to respect these parental rights under both international law,[5] in terms of the Children’s Act,[6] which gives parents the aforementioned right of care[7], and in terms of the Department’s White Paper.
Parents, therefore, have the right to know what their children are being taught, particularly when (unlike in mathematics where 1 + 1 will always = 2) it is obvious that sexuality education, including CSE, cannot be taught from a “value-neutral” position. Whatever a child learns or experiences regarding sex and sexuality at a highly impressionable stage of their own personal development, will have a lifetime impact. As such, the State must not usurp this right from parents and must tell them what a curriculum will contain before it is taught to their children.
Furthermore, parents who believe that the subject matter does not reflect their values and is not in the best interests of their children, must have the right to withdraw their child/ren from that class.
2. THE LACK OF TRANSPARENCY REGARDING THE FUNDING OF THE CSE CURRICULUM INTEGRATION
The organisations and entities who have funded the development of the revised CSE materials for use in the Life Orientation and Life Skills curricula need to be disclosed. The Department does not specify, in either its media statements or its briefing to Parliament, the identity of these funders, nor their level of involvement. Parents need to know who is driving the agenda, especially those international organisations who have contributed to the content of the curriculum and paid for the current integration process into the revised South African CSE curriculum.
It is a fact that the Department utilised the United Nations Educational, Scientific and Cultural Organisation’s (UNESCO) International Technical Guidance on Sexuality Education (ITGSE). It is worth noting that UNESCO’s ITGSE have been strongly criticised for a wide variety of reasons, including that it sexualises children at an early age, promotes abortion, undermines family and ethical values, peddles transgenderism ideology and promotes a fictitious right to CSE. In fact, even the UN General Assembly rejected the “broad notion of ‘sexuality’… understood to refer to social norms that emphasize sexual autonomy” in UNESCO’s ITGSE, in favour of a narrower health-centered approach.
It is also a fact that the ITGSE states that Planned Parenthood was a contributor and indeed, that it was part of the advisory group that assisted in the writing of the ITGSE with much of Planned Parenthood’s materials being used in writing the ITGSE. This is critically concerning as Planned Parenthood is not unbiased, but known as one of the biggest abortion providers internationally and is currently embroiled in controversy for selling organs of aborted babies for profit. Put plainly: The Department has chosen to utilise material compiled by the biggest providers of abortion to teach our children about sex and sexuality. We should therefore not be surprised that the material is strongly slanted towards sexualising children, because the abortion industry has much to gain from it.
Furthermore, we are also aware that both UNESCO and the United Nations Populations Fund (UNFPA) have supported the Department by training teachers through an online course on CSE (see page 59 of this report). Finally, we are aware that the United States Agency for International Development (USAID) has been providing technical assistance to ensure the implementation and roll-out out of the SLPs.
Funders with a direct and/or vested financial interest in the matter should be excluded from giving input into the curriculum in order to prevent the curriculum content being biased. The Department is constitutionally bound to ensure[8] that the curriculum is unbiased in its writing, and the teaching and choices presented are truly in the best interests of our children.
3. THE APPROACH ADOPTED
The Department’s solution (according to their media statement) to teenage pregnancies and HIV infections, is to provide children with “access to Sexual Reproductive Health Services” i.e. abortions, antiretrovirals (ARVs) and condoms. However, we note with deep concern that, in terms of the Department’s (draft) Prevention of Learner Pregnancies Policy,[9] these Sexual Reproductive Health Services can be provided without parental knowledge, not to mention consent. Many parents will strongly disagree with the Department’s solution to encourage their children to be given “access to Sexual Reproductive Health Services” with neither their knowledge or consent.
4. LACK OF OPT-OUT
The SLPs are expected to be mandatory (see page 13 of this report).
This is a major erosion of parents’ right to guide and direct their child’s education and upbringing, including their religious and cultural education. Parents’ decisions on what their children will be exposed to must, therefore, be respected, especially when it comes to the CSE content which the Department clearly stated will be teaching values / culture / sexuality.
5. LACK OF INFORMATION ABOUT RESULTS IN PILOT PROVINCES
Given that there is no legal obligation on South Africa to implement CSE, logic dictates that the Department should only be implementing CSE because it has proven to yield undisputed, positive results.
The Department has piloted its revised CSE content in five (5) provinces[10], after which a 2019 Midline Report was compiled. However, this report does not focus on results, but on the attitudes and perceptions of parents / teachers regarding the content. The report’s conclusion is that “traditional values” are “key barriers” to CSE’s implementation, and also raises concerns about the desirability of the content amongst parents, teachers and learners. This report also highlighted the fact that parents were not familiar with the SLP content (which again is further evidence of the lack of consultation) and that teachers said they were not comfortable teaching the content.
Instead of changing the SLPs to fit South Africa’s cultural context however, the Midline Report fails to take the cultural context seriously, calling these “cultural taboos” (page 14) and concludes that the effectiveness of the SLPs can be enhanced by sensitising parents and teachers to accept values (page 12) that some of them have seen as being “out of the norm” (page 30).
6. THE DEPARTMENT IS NOT “FORCED” TO IMPLEMENT CSE
As already stated above, there are no binding national or international legal obligations on South Africa to implement CSE.
However, in order to circumvent this, it appears that the Department is adopting a two-fold strategy: Firstly, it is trying to justify its mandatory implementation of CSE by referring to the non-binding Eastern and Southern Africa Ministerial Commitment on sexuality education and sexual and reproductive health services (ESA Commitment). It is also attempting to indicate that is has international support via this letter from the regional and national branches of UNESCO, UNFPA and UNAIDS.
Secondly, it is trying to build support for its mandatory implementation of CSE by passing its own policies in support of this, as can be seen from page 58 of this report.
7. STUDIES USING UNESCO’S OWN DATA CLEARLY SHOW THAT CSE CAN BE HARMFUL
The Department claims that a 2016 review of the ITGSE – which has been integrated into the revised CSE curriculum – provides evidence that it effectively addresses the negative consequences which can result from a lack of education and information on sex and sexuality.
However, they omitted to state that subsequent studies conducted by, for example, the Institute for Research and Evaluation in 2018 and 2019 (which use UNESCO’s own data) clearly show that the implementation of CSE globally carries a clear risk of harm to children.
These studies concluded that:
Importantly, in light of these recent studies, and the fact that the Constitution specifically states that the best interests of the child are of paramount importance (section 28 (2)), and further that all organs of State are bound to protect, promote and fulfil this requirement (sections 8 (1) and 7 (2)), these factors alone should give the Department reason to pause and reconsider.
These studies also refute the Department’s claim, both before the Portfolio Committee and in their press statements, that the revised CSE curriculum does not sexualise children. However, just one example taken from the revised curriculum (and there are many) involves the teacher giving the Grade 8 class a description of vaginal, anal and oral sex. Given that children are naturally inquisitive, how does this not run the risk of prematurely sexualising them?
FOR SA THEREFORE CALLS UPON PARLIAMENT TO
[1] Section 28(2) of the Constitution of the Republic of South Africa, 1996.
[2] Sections 42(3), 55(2)(b) and 85 of the Constitution of the Republic of South Africa, 1996.
[3] Article 9 of the African Charter on Human and Peoples’ Rights (“Banjul Charter”), 1990 that provides for the right of children to Freedom of Thought, Conscience and Religion and explicitly mandates that “State Parties shall respect the duty of parents and where applicable, legal guardians, to provide guidance and direction in the enjoyment of these rights subject to the national laws and policies.” [Own emphasis added.].
See also article 26.3 of the Universal Declaration of Human Rights, 1948.
[4] Definition of “care” contained in section 1 of the Children’s Act. See also section 18(2)(a) of the Children’s Act which reads as follows:
“The parental responsibilities and rights that a person may have in respect of a child, include the responsibility and the right to care for the child” with the Act defining “care” as including inter alia “safeguarding and promoting the wellbeing of the child; protecting the child from… exploitation and any other physical, emotional or moral harm”. [Own emphasis added]
See also article 18.4 of the United Nations International Covenant on Civil and Political Rights which recognises parents’ primary responsibility.
[5] Articles 5 and 14 of the United Nations Convention on the Rights of the Child, 1990.
[6] Act 38 of 2005.
[7] Section 18(2)(a) of the Children’s Act (Act 38 of 2005) reads as follows:
“The parental responsibilities and rights that a person may have in respect of a child, include the responsibility and the right to care for the child” with the Act defining “care” as including inter alia “safeguarding and promoting the wellbeing of the child; protecting the child from… exploitation and any other physical, emotional or moral harm”. [Own emphasis added]
[8] Sections 7(2), 8(1) and 28 (2) of the Constitution of the Republic of South Africa, 1996.
[9] FOR SA’s submission is available here.
[10] Gauteng; Kwa-Zulu Natal; Free State; Mpumalanga and Western Cape.
Support FOR SA
Freedom of Religion South Africa (FOR SA) is dedicated to protecting and preserving the freedoms and rights that the South African Constitution has granted to the faith community. You can help FOR SA protect our freedom by:
Freedom of Religion South Africa (FOR SA) is dedicated to protecting and preserving the freedoms and rights that the South African Constitution has granted to the faith community. If you have found this helpful, please consider supporting the work of FOR SA to protect our constitutional right to enjoy the freedom of religion by:
Vision & mission
Join us
Company details
Are you in trouble?
Enquiries
Privacy Policy
Terms & conditions
Cookie Policy
Donate Now
NOTE & DISCLAIMER
FOR SA currently has a support base of religious leaders and individuals representing +/- 6 million people across a broad spectrum of churches, organisations, denominations and faith groups in South Africa.
FOR SA is not registered as a law firm and therefore cannot (and does not) give legal advice for which we can attract any legal liability; neither can we charge legal fees for our services.
