A Duty to Provide Education?
Fundamental Rights in the Federal Constitution does not include among the many rights it guarantees, a right to education. The Education Act 1996 speaks about a duty on the government to provide some levels of education, but the conflicting provisions in the Act dealing with such a duty make it difficult to determine the extent or nature of such a duty. We reproduce below the relevant sections dealing with the duty of the Minister with regard to establishing and maintaining educational institutions (emphasis added);
Section 27. It shall be the duty of the Minister to provide primary education in government and government-aided primary schools.
Section 28. Subject to the provisions of this Act, the Minister may establish national schools and national-type schools and shall maintain such schools.
Section 30. (1) It shall be the duty of the Minister to provide secondary education in the following national secondary schools:
(a) academic secondary schools;
(b) technical secondary schools; and
(c) secondary schools of such other descriptions as the Minister may from time to time determine.
(2) Subject to the provisions of this Act, the Minister may provide upper secondary education in any national secondary school.
31. Subject to the provisions of this Act, the Minister may establish and maintain any of the schools described in section 30.
Although the above provisions allude to a duty, section 123 of the Education Act 1996, limits the nature and extent of the duty.
Section 123. Except in so far as moneys are approved or provided for that purpose by Parliament or otherwise, nothing in this Act shall be deemed to impose any duty upon the Minister to establish and maintain an educational institution under this Act or to maintain wholly or partially an educational institution.
Also, the duty imposed on the Minister under the above provisions is not expressed in a form to create a concomitant right on an individual or community or even in terms of meeting the needs of any individual or group of individuals, say for example, primary education for those of the school-going age. Under s. 27 of the Education Act 1996, the duty to provide primary education is a ‘duty … to provide primary education in government and government-aided primary schools.’ The Act empowers the Minister to establish primary schools in his own discretion but there is nothing in the Act to create a duty on the Minister to meet the needs of those who require the education. The language used in the statutory expression of the duty to provide primary education has not been altered even after primary education was made compulsory.
The duty to provide secondary education is also expressed in similar terms to that of primary education as one to provide secondary education in the type of schools stipulated in the Act, which are national secondary schools that are academic secondary schools, technical secondary schools and secondary schools of other description as may be determined by the Minister from time to time.
In the case of upper secondary education, the minister is not compelled to provide such education but it ‘may be provided’ in secondary schools at the discretion of the Minister. The provision of other levels of education such as pre-school education and post-secondary education is also not stipulated as a duty.