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SCHOOLS CONSENT FORMS A VIOLATION – LAWYER

02/11/2021 08:51:00 BY STANLEY KHUMALO

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MANZINI – Human Rights Lawyer Sipho Gumedze doubts the legality of the consent forms guardians are expected to sign before learners resume lessons.

Gumedze cast doubt on the legality of the consent forms standing in court. The consent forms were issued by regional education officers (REOs) to head teachers so that they could circulate them in meetings to be held countrywide with guardians in preparation of the reopening of schools. He said the country was at a stage wherein pregnant pupils were expected to sit for examinations and were not supposed to be excluded. In light of this, Gumedze wondered how government was seeking to contract the education of a child.

“This violates all conventions, inclusive of the Child Protection and Welfare Act of 2012,” he said. The human rights lawyer was of the view that the consent form was not binding as it was a contract between government and guardians who sought to exclude children from school. Rhetorically, he asked to what extent was the form valid.

Liability

He cast doubt that the consent forms would stand in court as the vicarious liability had to do with one breaking the law while in his or her scope of duties. He said the damage in this instance was caused by someone who was liable. Worth noting is that the Child Protection and Welfare Act in Section 9 (1) states that a child has a right to access education, preventive health services, adequate diet, clothing, shelter, medical attention, social services or any other services required for the child’s development.

In Section 12, the Act states that a child has the right to express his opinion freely and to have that opinion taken into account in any matter or procedure affecting the child. Sub-section 2 states that the opinion of the child shall be given due weight in accordance with the age and maturity of the child. On the other hand, Section 14 (1) states that a child has a right to be protected from torture or other cruel, inhumane or degrading treatment or punishment, including any cultural practice which dehumanises or is injurious to the physical, psychological, emotional and mental well-being of a child.

“A child should be disciplined in accordance with his age, physical, psychological, emotional and mental condition and no discipline is justifiable if by reason of tender age or otherwise the child is incapable of understanding the purpose of the discipline,” reads in part Section 14 (2). In turn, the Act in Section 21 (1) states that every person shall have the responsibility to respect, protect and promote the rights of children contained in it and any other law to the extent that it is applicable, taking into account the nature of the right and duty imposed by that right and duty. It further states that all officials, employees and representatives of an organ of State shall respect, protect and promote the rights of children contained in this Act.

Meanwhile, some parents are sceptical to sign the consent forms issued by the Ministry of Education and Training. Head teachers received a message from REOs informing them that the Ministry of Education and Training was asking them to encourage schools to hold parents meetings to discuss the logistics of reopening schools and come up with strategies on how they would ensure safety and security of personnel and property. Some of the parents voiced out that they would not sign the consent forms, not because they were in support of the burning and vandalism of schools, but because they were against them as they sought to undermine the Constitution.

The Swaziland National Association of Teachers (SNAT) questioned guardians and parents in its Facebook page – The SNAT Platform - on whether they would sign it. Most of the people who responded to the question said they would not sign it.

Facebook

One of the Facebook users said: “A child should never have to sign anything in order to get education. Neither should a parent grant such, the permission to be educated comes automatically from child welfare organisations and UN.” Another expressed concern that the teachers union had a meeting with the ministry last Thursday and the forms were not discussed. The user said instead the forms were released a day after the stakeholders had met. Also, Sipho Gumedze said he would not sign them not because he wanted his children to partake in the destruction of school property but because he had the full right to defend the Constitution of the country as a citizen. He said: “I want the head teacher to chuck my children from school so that I can take this to court and challenge the ministry to tell me which law they stem from.”

Futility

Also, Coordinating Assembly for Non-Governmental Organisations (CANGO) Executive Director Emmanuel Ndlangamandla said the issuance of consent forms to parents and guardians was working in futility. He expressed concern and wondered how the forms would help in stopping the vandalism and destruction of school property. Ndlangamandla wondered on whether schools would expel all pupils if they were found to have voluntarily or involuntarily participated in such vandalism.“Will the signing stop the vandalism?” he asked rhetorically.

Also, Executive Director of Save the Children Dumisani Mnisi said the consent form seemingly did not allow dialogue as he opined that it had an element which sounded like a directive. Mnisi said: “Children were caught up in the unrest and they are now suffering because of this.” He said the consent forms seemingly lacked the best interests of children and were supposedly disregarding that they were complete human beings who needed to be consulted and should not be intimidated. Worth noting is that pupils countrywide started boycotting classes and signed petitions seeking, among other things, that the two incarcerated legislators in Hosea Constituency Member of Parliament (MP) Mduduzi Bacede Mabuza and Ngwempisi Constituency MP Mthandeni Dube should be freed.

Textbooks

Some of the petitions also highlighted the shortage of teachers in schools while also noting the shortage of textbooks. They further raised that they wanted a better menu in their feeding scheme. The consent form is partitioned into two, where one part is a parental consent form. In this segment, it reads: “By law it is required that children under the age of 18 should provide written consent from their parents or guardians to participate or enter into contracts or agreements by whatever name called.”

It subsequently implores the guardian or parent to complete the form with the pupils wherein the learner is expected to state his/her full names, date of birth, name of school, region and form/grade. Thereafter, the consent form is to be filled in by the guardian or parent where they list their names and identify the learner they are consenting for.

The form states that following an announcement by the Ministry of Education and Training to reopen schools on (date to be announced), the guardian consents to the terms and conditions laid down by the school as a condition for readmission to it following its closure as a result of the civil unrest. The guardian thereafter is expected to make an undertaking that should his/her child take part directly or indirectly in acts of vandalism, damage to property, destruction of property or any other act of misconduct under the Education Rules of 1977, he/she shall be suspended, expelled, or be liable to make good the damage or loss caused to the school or government.

Signature

Thereafter, the parent or guardian has to endorse the form by listing his/ her names before appending the signature with the date it was filled on. Also, the guardian is expected to share his or her contacts and the relationship with the minor. Also, beneath the commitment by the parent or a guardian, a learner aged 12 or more is expected to endorse the form by appending his/ her signature. The second part of the form is for children who are 18 and above.

In this part, it reads: “I have read the terms and conditions laid down by the school as a condition for re-admission to the school following its closure as a result of the civil unrest. I hereby consent to the terms and conditions laid down by the school, that should I take part directly or indirectly in acts of vandalism, damage to property, destruction of property or any other act of misconduct under the Education Rules of 1977, I shall be suspended, expelled or be liable to make good the damage or loss caused to the school or government.”