Critical reflections on the justiciability of the right to education in Ghana

Abstract

Article 38(1) of the 1992 Constitution of Ghana provides that 'the state shall provide educational facilities at all levels and in all the regions of Ghana, and shall to the greatest extent feasible, make those facilities available to all citizens'. 'Feasible' in plain language means 'if possible'. This means that if it not possible, educational facilities would not be made available to all. Article 38(3) also provides that the state shall 'subject to the availability of resources' provide equal and balanced access to secondary education and other pre-tertiary education. The wording of article 38(3) suggests that, in the event of a lack of resources, there would be no equal and balanced access to basic education. Articles 38(1) and 38(3) serve as a constitutional constraint to the Free Compulsory Basic Education in Ghana because, if the provision of educational facilities is subject to 'feasibility' and if its equal and balanced access is subject to resource availability, then free compulsory universal basic education as envisaged under international human rights instruments will be difficult to realise. Through a doctrinal approach to research based on legal literature, this article analyses the issue of whether or not the justiciability of the right to education has been adequately addressed by the legal jurisprudence in Ghana. We conclude that the Constitution, legislation, policy and jurisprudence of the courts acknowledge that the right to education is a right that can be enforced in courts. In this sense, there are many avenues through which one can argue for justiciability of the right in Ghana, including through article 33(5) of the Constitution.