Theme : Rights of Refugees

Paper Title: AN ANALYSIS OF THE LEGAL FRAMEWORKS WHICH

PROVIDE FOR THE RIGHT TO EDUCATION FOR REFUGEE CHILDREN IN
ZIMBABWE AND THE LIMITATIONS HINDERING ACCESS TO RIGHT TO
EDUCATION

AN ANALYSIS OF THE LEGAL FRAMEWORKS WHICH PROVIDE FOR

THE RIGHT TO EDUCATION FOR REFUGEE CHILDREN IN ZIMBABWE
AND THE LIMITATIONS HINDERING ACCESS TO EDUCATION1

30 October 2024

http://dx.doi.org/10.17159/1996-2096/2018/v18n1a13

Abstract

This is an article which explores the provision for the right to education for
refugee children.

Key words: Refugee, Right, Education, Children,

Introduction

According to UNHCR 2
, Zimbabwe provides protection and assistance to
around 22,400 refugees and asylum-seekers and the communities hosting
them. Most of the refugees reside in Tongogara Refugee Camp in Manicaland
province, southeastern Zimbabwe, where children have access to education
at the Refugee Camp .However the case of Mashauri has overturned the

1
This article is an assignment question in partial fulfillment for the coursework requirements
for Refugee and Immigration Law for the LLBS undergraduate degree at the University of
Zimbabwe.
2
UNHCR GLOBAL WEBSITE Accessed on 30 0ctober 2024
https://www.unhcr.org/countries/zimbabwe#:~:text=UNHCR%20Zimbabwe%20provides
%20protection%20and,urban%20areas%2C%20mainly%20in%20Harare.
tables showcasing the limitations on the right to education for refugee
children who had been detained in Chikurubi Maximum Prison. Although the
right to education for refugee children is provided for by international
conventions and domestic laws In Zimbabwe, an in-depth view into how the
right to education is being accessed shows that there are challenges
hindering access to education for refugee children.

Background

The right to education for children is a fundamental human right which

should be accessed by all children. 3 The right to education is a human right
for every human being and this includes refugees in host nations and their
children. The Mashauri case illustrated the problem of the right to education
being infringed upon by the respondents. 4 The respondents detained the
Mashauri family including three minor children in Chikurubi Maximum Prison
where they had no access to education. This was a glaring infringement of
the fundamental right of refugee children to access education. The
justification for infringing upon this crucial right was that it was in the
interest of public policy to detain the Mashauri family who had ignored an
order to leave Zimbabwe within three months. This case sets a dangerous
precedent by allowing the courts, immigration officials and the correctional
services to infringe on fundamental human rights on the basis of punishing
people who defy immigration laws and orders.

The right to education in the best interest of the child

The denial of the right to education of the Mashauri children while being
detained was punishing the children for the sins of their parents and this is
grossly unjust. This denial of access to education for the first applicant as a
result of being detained for their parent’s sins is contrary to the best
interests of the child doctrine.5 Justice Sach held that,
3
Article 26 of the Universal Declaration of Human Rights
4
Mashauri and Ors v Chief Immigration Officer and Ors HH 497/23
5
The Constitution of Zimbabwe 2013, Section 19
 “Children … should not be treated as mere extensions of their parents,
umbilically destined to sink or swim with them. The sins and traumas
of the fathers and mothers should not be visited on their children.” 6

This article analyses how the right to education for refugee children is being
infringed upon in Zimbabwe in light of the Mashauri case. 7

Constitutional provisions on the right to education in Zimbabwe

The Constitution of Zimbabwe is the Supreme law and it clearly states in

Section 19 (2) (d) that all children have access to appropriate education and
training. 8The State must take all practical measures to promote free and
compulsory basic education for children; and higher and tertiary
education.9Children have a fundamental right to education in Zimbabwe. This
constitutional provision is inclusive. All children who are within the
boundaries of Zimbabwe are afforded this right regardless of their social
status.

International conventions

According to the UNHCR Global Appeal 2011 Update, the refugees in

Zimbabwe are recognized under the country’s Refugees Act, which is
substantially in conformity with the provisions of the 1951 Refugee
Convention10 and with the 1969 OAU Convention11, to which Zimbabwe is
a party. The Constitution makes reference to the Domestication of
international instruments highlighting that the State must ensure that all
international conventions and treaties to which Zimbabwe is a party are
incorporated into domestic law.12

6
S v M (CCT53/06) [2007] ZACC 18
7
See n1 above
8
Section 19 (2) (d) of the Constitution of Zimbabwe ,2013
9
Section 27 (1)The Constitution of Zimbabwe ,2013
10
1951 Convention relating to the Status of Refugees
11
Convention Governing the Specific Aspects of Refugees in Africa (the 1969 OAU
Convention
12
Section 34 of the Constitution of Zimbabwe
International Conventions such as the Convention on the Rights of
Children highlight that governments must make educational and vocational
information and guidance available and accessible to all children. In addition,
it must take measures to encourage regular attendance at schools and the
reduction of drop-out rates.13The fact that the Children were detained in
prison and did not have access to education clearly entails that the Prison
Correction service did not adhere to the provisions set out by the Convention
on the Rights of Children to which Zimbabwe ratified.

The African Charter on the Rights and Welfare of Children clearly

articulates that every child has a right to education. States Parties shall take
all appropriate measures with a view to achieving the full realization of this
right and shall in particular provide free and compulsory basic education and
encourage the development of secondary education in its different forms and
to progressively make it free and accessible. 14Every child has the right to an
education. Primary education should be free. Secondary and higher
education should be available to every child. Children should be encouraged
to go to school to the highest level possible. 15 Education protects the refugee
children and youth from forced recruitment into armed groups, child labour,
sexual exploitation and child marriage. Education is a tool that empowers
refugees by equipping them with the knowledge and skills to live productive
lives.16

Challenges hindering Refugee children to access education

Zimbabwe is believed to be experiencing a number of challenges pertaining to

17
prison education. The Internal Journal of Innovative Research and Development

13
Article 28 (1)(d) and Article 28 (1) (e) of the Convention on the Rights of Children
14
Article 11 of African Charter on the Rights and Welfare of Child ,1999
15
Article 28 of United Nations Convention on the Rights of the Child
16
Education for migrants: an inalienable human right ,courier.unesco.org (accessed at 30
0ctober 2024)
17
Challenges Hindering Rendering of Formal Education Programs at Correctional Centers in
South Africa , Mandisi Mafilika and Newlin Marongwe ,Submitted: 28 January 2024 Reviewed:
29 January 2024 Published: 21 May 2024,DOI: 10.5772/intechopen.1004400
released in 2014 in Zimbabwe revealed that the Ouagadougou Declaration on the
acceleration of Prison and Penal reforms in Africa held in 2002 formed the basis of
18
Zimbabwean prisons’ improvement. The declaration outlined that the lack of
prison educational facilities in prisons were caused by Government legislations
which are not being adhered to by the prison department. The Prison and
Correctional Services Department should take into consideration of national
Legislations such as the Education Act 19 which promotes provision for the right to
education for all children.

Education activities at Tongogara refugee camp

According to UNHCR 2023 report a total 23 335 refugees and asylum seekers, the
majority coming from Democratic Republic of Congo. They are kept at Tongogara
camp and the majority of the population at the camp are children who represent
48,3% (7676)20 .In 2022 UNHCR reported that a total of 3575 refugee children in
Zimbabwe attended school. All children residing in Zimbabwe have the right to
attend national schools regardless of citizenship or residency status. Those refugees
who attend school including tertiary pay the same fees, Apendeke Tunza , as
reported is a refugee from DRC started at Tongogara and is studying at the
University of Zimbabwe through a scholarship DAFI( Albert Einsten German
Academic Refugee Initiation ) which offers qualified refugee and returnee students
the possibility to earn an undergraduate degree in their country of asylum or home
country. In support of education, young people in the camp formed study classes
through the TWEENS model (together we educationally empower non privileged
students.

Conclusion and Recommendation

18
Rupande G, Ndoro I. Challenges faced by the Zimbabwe prison service in implementing
prison rehabilitation programs: A case of Marondera prison. International Journal of
Innovative Research and Development. 2014
19
Education Act [Chapter 25:04 ] Section 4(1) states that every child in Zimbabwe shall
have the right to school education.
20
UNHCR 2022 Report on Refugee status in Zimbabwe
The fundamental right to education for refugee children is an important
human right which should be protected. However, the right to education is
subject to compliance with public policy and is a limited right which is not
absolute. The children of refugees should not be punished for the
transgressions of their parents and have their right to education infringed.
The Constitution should be amended to make the right to education absolute
so that it is not deliberately infringed. The government should make policies
allowing immigration officials to provide refugee children get access to
education while their parents are detained. This recommendation is in line
with the constitutional provision of the government to make policies which
protect the best interests of children.21

REFERENCES

 African Charter on the Rights and Welfare of Child ,1999

 Challenges Hindering Rendering of Formal Education Programs at
Correctional Centers in South Africa , Mandisi Mafilika and Newlin
Marongwe ,Submitted: 28 January 2024 Reviewed: 29 January
2024 Published: 21 May 2024,DOI: 10.5772/intechopen.1004400
 Constitution of Zimbabwe 2013
 Convention on the Rights of Children
 1951 Convention relating to the Status of Refugees
 Convention Governing the Specific Aspects of Refugees in Africa (the
1969 OAU Convention
 Education for migrants: an inalienable human right ,courier.unesco.org
(accessed at 30 0ctober 2024)
 Education Act [Chapter 25:04
 Mashauri and Ors v Chief Immigration Officer and Ors HH 497/23
 Rupande G, Ndoro I. Challenges faced by the Zimbabwe prison service
in implementing prison rehabilitation programs: A case of Marondera
prison. International Journal of Innovative Research and Development.
2014
 S v M (CCT53/06) [2007] ZACC 18
 UNHCR GLOBAL WEBSITE Accessed on 30 0ctober 2024
https://www.unhcr.org/countries/zimbabwe#:~:text=UNHCR
21
The Constitution of Zimbabwe, Section 19 (1)
 %20Zimbabwe%20provides%20protection%20and,urban%20areas%2C
%20mainly%20in%20Harare.

 Universal Declaration of Human Rights

 United Nations Convention on the Rights of the Child