By Daniela Ellerbeck, Legal Advisor of Freedom of Religion South Africa (FOR SA)
In September, the Department of Basic Education (the Department) briefed the Parliamentary Portfolio Committee on Basic Education and issued a media statement in justification of its continued push for the implementation of Comprehensive Sexuality Education (CSE) as part of the mandatory Life Orientation and/or Life Skills curriculum in public schools. This is a highly emotive and controversial development, particularly because there is neither an international nor domestic legal obligation on the Department to implement CSE, and there has been a woeful lack of consultation and transparency during the developmental process of this revised curriculum.
FORSA has been involved since this issue was first raised and, as a religiousfreedom legal advocacy organisation, we are writing to detail our response tothe Department’s position. This first article will deal with the powers ofParliament to engage in this crucial issue, as well as critiquing the Department’smedia statement. A future article will deal with critiquing theDepartment’s briefing to Parliament.
Parliament’s powers in thedevelopment of the curriculum:
TheConstitution splits the government of South Africa into three (3) arms that areto work independently and hold each other accountable to ensure our democracyfunctions as intended. These arms are: the judiciary (courts), the legislature(Parliament) and the executive (the President, his ministers and their State Departments).
Interms of our Constitution, one of Parliament’s most important functions is toensure government BY the people by scrutinizing and overseeing the actions ofthe executive and its exercise of authority – e.g. its implementation ofnational policy etc.[1] This means that Parliament does have the power to demand that the Departmentchange its curriculum should they believe that the Department’s curriculumchoices (in this instance the development and implementation of CSE) are not reflectiveof, or are in conflict with, the clear wishes of the people of South Africa.
Assuch, making sure that our elected Members of Parliament (MPs) sitting on the ParliamentaryPortfolio Committee for Basic Education are aware of our objections to both theway the Department hascircumvented engaging critical stakeholders (including parents, SchoolGoverning Bodies (SGBs) and teachers) on the contents of the curriculum, andthe actual content of thecurriculum, is crucial.
Inorder to make MPs aware and encourage them to fulfil their duty as representativesof the many South Africans who are deeply concerned about the issue, FOR SAasks you to consider completing and sending the attached templateletter to the elected representatives (MPs) on the relevant PortfolioCommittee. The letter sets out the main concerns regarding CSE and requestsParliament to exercise its power to make sure government BY the people does notget steam-rolled by the executive.
Critiquing the Department’sMedia Statement:
FORSA agrees with the Department that South Africa’s HIV infections and teenage pregnanciesare problems that need to be tackled head-on, and also that our learners shouldknow about the risks, consequences and responsibilities of having sex. We alsoappreciate the fact that the Department has to navigate the practical realitiesof a diverse society with different familial and social contexts, where South Africahas differing levels of parental involvement and presence in learners’ lives. Wealso note that according to the Department’s statistics, both the rate of HIV infectionsand teenage pregnancies are decreasing and being lowered with thecurrent (old) sexuality education curriculum.
However, FOR SA strongly disagrees with the following:
1. The Lack of Consultation
TheDepartment is planning to roll out a national curriculum, unilaterally, withoutany consultation of (some of the) critical stakeholders. Instead of consulting stakeholdersin advance, the Department has drafted orientationmanuals (i.e. to “sensitise” people to accept the curriculum and itscontent) on the Scripted Lesson Plans (SLPs) for SGBs, teachers and parents.
Nowhere,at any point in time, did the government ask the people whether they WANT newCSE content, or give them ANY opportunity to give input on such content. Whatthe Department has done, is to make a unilateral decision to change the content.It is now forcing it on parents, teachers and SGBs in a top-down totalitarian approach that is undemocratic in its entirety,and contrary to the values of an open and democratic society where the State isto govern according to the will of the people.
Parents are primarily responsible for theirchildren’s well-being (which includes physical, mental,spiritual and emotional well-being).[2]Parents have the rightto guide and direct their children’s' education and upbringing,including religious and cultural education.[3]
The South African government, howeverwell-meaning its interventions, is obligedto respect these parental rights under international law,[4]and in terms of the Children’s Act, 2005 which gives parents the right of care.[5]
Parents have the right to know what theirchildren are being taught. The State has NO right to usurp this right fromparents by not telling them what a curriculum will contain, how it will betaught, by whom, and not giving them the right to exclude their child from thatclass should they so choose.
Furthermore, it should be noted that the Department resorted to drafting SLPs to overcome teachers’ own values and reluctance to teach CSE (see page 60 of this report).
2. The Lack of Transparency regarding the Funders:
The organisations and entities who have funded the developmentof the new CSE materials and curriculum need to be disclosed. The Departmentdoes not specify, in either its media statement or its briefing to Parliament, theidentity of these funders, nor their level of involvement. Parents need to knowwho is driving the agenda and paying for their children to be taught thismaterial, and who is writing the material.
What we do know, is that the Department utilised the United Nations Educational, Scientific and Cultural Organisation’s (UNESCO) International Technical Guidance on Sexuality Education (ITGSE). This, in turn, was contributed to by a notorious pro-abortion agency, Planned Parenthood, which is embroiled in horrendous controversy for selling organs of aborted babies for profit.
It is worth noting that UNESCO’s CSE has 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 definition of CSE in UNESCO’s ITGSE, in favour of a narrower health-centred approach.
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.
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.
The Departmentneeds to play open cards - not just with the public, but also with Parliament towhom it is accountable, by making a full public disclosure about who is behindthis programme. Funders with a direct and/or vested financialinterest in the matter, should be excluded from giving input into thecurriculum in order to prevent the curriculum content being biased. TheDepartment is constitutionally bound to ensure[6]that the curriculum is unbiased in its writing, and the teaching and choicespresented are truly in the best interests of our children.
3. The ApproachAdopted:
The solution adopted by the Department (according to their media statement) to HIV infections and teenage pregnancies, is to provide children with “access to Sexual Reproductive Health Services” i.e. condoms, antiretrovirals (ARVs) and abortions. However, we note with deep concern that, in terms of the Department’s (draft) Prevention of Learner Pregnancies Policy[7], the Sexual Reproductive Health Services can be provided without parental knowledge, not to mention consent.
It should also be emphatically stated that Scripted LessonPlans (SLPs) should NOT teach values / culture / sexuality and sexual behaviour(which are key themes to be taught according to the media statement). FOR SAhas repeatedly affirmed that, according to international law which is bindingon South Africa, parents have the primary right and responsibility of teachingvalues to their children and for their upbringing and education. Many parents will strongly disagree with theDepartment’s solution to encourage their children to be given “access to SexualReproductive Health Services” with neither their knowledge or consent. Furthermore,sexuality education is nevervalue-neutral, and therefore it is cruciallyimportant that parents agreewhat the message is and to know who has developed and written it.
4. Lack of opt-out:
The SLPs are expected to be mandatory (see page 13 of this report). This is also another massive infringement of parents’ right to guide and direct their child's education and upbringing, including religious and cultural education. Parents should be allowed to decide what they want their child to be exposed to, especially when it comes to content which the Department blatantly states will be teaching values / culture / sexuality.
5. Lackof 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 new CSE content in five (5) provinces (as per the media statement). However, no information about the results of the pilot programmes are being made available to the public, nor were such results briefed to Parliament. In fact, this Midline Report on the SLPs notes 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 culturalcontext, the Midline Report fails to take the cultural context seriously,calling these “cultural taboos” (page 14) and concludes that the effectivenessof the SLPs can be enhanced by sensitising parents and teachers to acceptvalues (page 12) that some of them have seen as being “out of the norm” (page30).
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). Secondly, it is trying to build support for its mandatory implementation of CSE by passing its own policies in support of this, including the following:
a. NationalAdolescent Sexual and Reproductive health and Rights Framework Strategy;
b. NationalPolicy on HIV, STI and TB; and
However, even UNESCO’s own evidence shows that CSE is not effective and may even be harmful. There is almost no evidence that CSE is effective in reducing rates of teenage pregnancies or STIs, or in increasing abstinence and/or condom use. On the contrary, according to both this 2018 study, more than one (1) in four (4) schools (26%) showed negative effects on learners’ sexual health, with decreases in condom use and increases in rape, sexual debuts, STIs, number of sexual partners, recent sex, or “paid for sex”. This, together with a 2019 study, shows that the rate of harm appeared even higher for school-based CSE in Africa than in other contexts.
Conclusion:
Ifthere is any possibility that harm may follow as a result of CSE, theDepartment will be failing in its constitutional duty to do what is in the bestinterests of children. Any implementation of CSE needs to be in the bestinterests of the children – beyond anydoubt. The media statement also failsto set out a plan for adequate stakeholder consultations to occur, giving parentsaccess to the curriculum content and the ability to provide input that will beconsidered before its finalisation. This raises serious concerns that theDepartment never intends to seriously consult with stakeholders, but simply tosteam-roll its pre-determined CSE curriculum into schools with “sensitising” forthose with “conservative cultural values” who disagree with it.
Itis therefore of critical importance that Parliament flexes its muscles anddemands that the executive understands its obligations to the citizens of SouthAfrica. We must ensure that MPs on the ParliamentaryPortfolio Committee for Basic Education be made aware that a large proportionof South Africans object to how the Department has circumvented engagingcritical stakeholders. Parents, SchoolGoverning Bodies (SGBs) and teachers have the right to demand something betterfrom the Department.
[1] Sections 42(3), 55(2)(b) and 85 of the Constitution ofthe Republic of South Africa, 1996.
[2] Section 18(2)(a) of the Children’s Act (Act 38 of 2005) reads as follows:
“The parentalresponsibilities and rights that aperson may have in respect of a child, includethe responsibility and the right to care for the child” withthe Act defining “care” as including interalia “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 andPolitical Rights which recognises parents’ primary responsibility.
[3] Definitionof “care” contained in section 1 ofthe Children’s Act.
See also Article 9of the African Charter on Human and Peoples' Rights (“Banjul Charter”), 1990 that providesfor the right of children to Freedom of Thought, Conscience and Religion andexplicitly mandates that “State Parties shall respect the duty ofparents and where applicable,legal guardians, to provide guidance anddirection in the enjoyment of these rights subject to the national laws andpolicies.” [Own emphasis added.].
See also article 26.3 of the Universal Declaration of Human Rights, 1948.
[4] Articles5 and 14 of the United Nations Convention on the Rights of the Child, 1990.
[5] Section18(2)(a) of the Children’s Act (Act38 of 2005) reads as follows:
“The parentalresponsibilities and rights that a personmay have in respect of a child, includethe responsibility and the right to care for the child” withthe Act defining “care” as including interalia “safeguarding and promoting the wellbeing of the child;protecting the child from… exploitation and any other physical, emotional or moral harm”. [Own emphasis added]
[6] Sections 7(2), 8(1) and 28 (2) of the Constitution ofthe Republic of South Africa, 1996.
[7] FOR SA’s submission is available here.
>[author] [author_info]Daniela is a duly qualified Attorney of the High Court of South Africa. She obtained a BCom LLB degree from Rhodes University. Daniela first worked for Médecins sans Frontières before completing her articles of clerkship at G van Zyl Attorneys, where she stayed on after being admitted as an attorney and practised, specialising in litigation. Daniela has loved Jesus since she was young and is a member of a local church in Cape Town where she is actively involved. [/author_info] [/author]
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