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Transforming Society

Securing Rights

Restoring Dignity

Diversity must be cherished

12 September 2016

THE Constitution of South Africa is lauded worldwide because of its uniqueness and progressiveness.

Our judiciary in numerous judgments has reinforced the fact that South Africa is indeed a rainbow nation. In a seminal judgment, justice Albie Sachs said: “South Africans come in all shapes and sizes.” This is an affirmation of the fact that diversity and difference ought to be celebrated and cherished as it is the very thing that gives South Africa its uniqueness and nationhood among other nations.

The Constitution enjoins us to inhabit and share public and private spaces in our diver-sity in a manner that is not mutually destruc-tive. In this way, the Constitution encourages and celebrates difference. In other words,
it says to us, “you might not agree with her world view, lifestyle, or habit, but you must reasonably accommodate them”.
This injunction is drawn from the Bill of Rights – a compendium of basic human rights – contained in the Constitution, which has both vertical and horizontal application.

The Constitution is thus akin to a sword of Damocles, which stands ready to come down on any rules or conduct, which is inimical to the imperatives of our constitutional order.
The government, private sector, educa-tional institutions and all other norm-giving institutions are thus enjoined, to borrow from renowned philosopher Ronald Dworkin to cre-ate laws or norms that evince equal concern and respect for all.

It is thus concerning to learn that certain schools’ codes of conduct contain provisions, which are prima facie in violation of the Con-stitution. What is more worrisome is that these seem to be happening in school settings, which are supposed to be a primary formal institution for the realisation of the right to education for most pupils.
A school is the “cradle of humankind”,
in that it is the first port of learning, social development and social encounter for children from various races, ethnicities, religions and background.

Therefore, norm givers in these impor-tant institutions, in regulating the conduct
of pupils, should pay special attention not to infringe the fundamental principles of basic human rights, in particular the right to human dignity. Whatever rule or code of conduct is devised, it should, as a general principle, be in agreement with the foundational values of our Constitution.
It cannot be disputed that schools’ codes of conduct constitute vital mechanisms through which a harmonious learning environment with constitutional values can be created. That is why our legal framework as well as judi-cial pronouncements have made it trite that schools’ codes of conduct must cater for the reasonable accommodation to allow for devia-tions from the code of conduct on religious or cultural grounds, and a procedure must be implemented according to which exemptions from the school’s code of conduct may be considered.

The worrying accounts in the media of some pupils who have apparently suffered at the hands of archaic codes of conduct should be a cause for grave concern for all of us. The sustained trauma, which these pupils have had to experience and endure from persons in authority cannot go unnoticed.

The South African Human Rights Com-mission, as an independent national human rights institution charged with the protection, promotion and monitoring human rights in the country is available at no cost as an avenue for accessing justice.

The commission calls upon school governing bodies in exercising their mandatory author-ity in terms of section 8 of the South African Schools Act, to develop codes of conduct for pupils, which are imbued with reasonable measures that allow for accommodation of diversity and celebration of difference. This will assist in curbing instances where pupils are subjected to untold painful trauma merely because of their race, culture, religion or heritage. The commission is of the view that schools should take this opportunity to do an introspection of their codes of conduct with
a view to reviewing and aligning them with constitutional principles.

The Department of Basic Education, work-ing through its structures and with the schools should create broader human rights aware-ness in a school environment. The relevant unions are also urged to play a role in sen-sitising educators and empowering them to safeguard the basic constitutional rights of the children under their care and subject to their authority at school. In light of recent reports of harrowing experiences, as recounted by some pupils, counselling facilities should be made readily available to all those directly affected to allow for closure and healing.

In the final analysis, as a country we must realise we are a heterogeneous society, which has differences of religion, culture, race, lan-guage, habit and opinion. Therefore, one can-not attempt to impose a straitjacket on such a society, but should rather allow, celebrate and cherish diversity.

Advocate Mohamed Ameermia is a commis-sioner at the South African Human Rights Com-mission and is responsible for the right to housing and access to justice

The South African Human Rights Commission.

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About us

The Human Rights Commission is the national institution established to support constitutional democracy. It is committed to promote respect for, observance of and protection of human rights for everyone without fear or favour.

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