obligation of States in fulfilling the right to education.38 States are required to take
measures such as reviewing laws and policies that facilitate the expulsion of pregnant
girls and ensure there are no restrictions on their return following childbirth.39
Furthermore, the Committee and the African Commission on Human and Peoples’
Rights have stipulated that States have to undertake measures to encourage pregnant
girls to continue with their education and, more specifically ensure that there is
retention and re-entry of pregnant and married girls, and where they are unable to
return to schools, to provide them with alternative education programs.40 The UN
Committee on the Rights of the Child (UNCRC) has also provided that expulsion of
girls from school based on pregnancy is a discriminatory act which should be
prohibited and that adolescent mothers should be provided with an opportunity to
continue with their education.41
41. While assessing the issue of the expulsion of pregnant and married girls with no reentry, the Committee prescribes that the responsibility of States in realizing the right
to education includes the obligation to promote, respect, protect and fulfil education.42
The obligation of States to respect the right to education entails that States should not
interfere with the right to education of girls, rather they should provide enabling
policies, allocate budgets and fulfil the right to education of girls. Furthermore, the
education that is being provided by States should be provided with respect for human
rights and fundamental principles set out in human rights instruments. 43 Therefore,
schools should be free from any kind of violence, abuse, and deprivation of rights. Any
pre-condition set to access education that is not in line with human rights standards is
a violation of the right to education as inherently the right to education is provided for
every child.
42. The Respondent Sate’s argument that its policy on pregnant and married girls being
carried out is in line with article 11(2)(c) of the Charter which stipulates that education
should be geared toward the preservation of African morals is not founded within the
general principles of the Charter. First, article 11(2)(c) vividly highlights that only
‘positive’ African morals, values and cultures should be strengthened through
education. In addition, positive African morals, values, and cultures are premised on
tolerance, consultation and dialogue and are not to be interpreted to include practices
harming the child and violating the Charter.44 Second, this specific sub-provision
38 ACHPR, Article 2 of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of
Women in Africa, 25 November 2005. UNESCO, Article 1 of the Convention Against Discrimination in
Education, 14 December 1960.
39 CEDAW, General Recommendation No. 36 on the right of girls and women to education, UN Doc.
CEDAW/C/GC/36, 27 November 2017, para 24.
40 ACERWC and ACHPR, Joint General Comment on Ending Child Marriage, 2017, para 31.
41 UNCRC, General Comment no. 15 on the right of the child to the enjoyment of the highest attainable
standard of health, UN Doc. CRC/C/GC/15, 17 April 2013, para. 56; UNCRC, General Comment no. 4 on
adolescent health and development in the context of the Convention on the Rights of the Child, UN Doc.
CRC/GC/2003/4, 21 July 2003.
42 ACERWC, Communication No 003/Com/001/2012, The Centre for Human Rights (University of Pretoria)
and La Rencontre Africaine pour la Defense Des Droits de l’homme (Senegal) V. The Government of
Senegal, para 47.
43 Article 11(2)(b) of the ACRWC.
44 ACERWC, General Comment no. 3 on the responsibilities of the child, para 76-80.
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