Broken Promises: Constitutional Litigation for Free Primary Education in Swaziland

Abstract

AbstractSwaziland's Constitution of 2005 promised that every Swazi child would have the right to free primary school education, within three years of the constitution coming into operation. That date having passed, a civil society group took the matter to court. The case initially fared well, but in a subsequent application for performance on the original order, the court balked at making an immediately enforceable order, citing lack of resources as an obstacle. That approach was upheld by the Supreme Court. This article examines the courts’ pronouncements within the Swazi constitutional context. It discusses judicial deference, avoidance and pragmatism. Swaziland's free primary education judgments are compared with those of courts in South Africa. The remedial orders of those courts demonstrate that, although educational goods and services cannot be delivered overnight, creativity and oversight by the courts can ensure that an immediate start is made towards delivering on the constitutional promise.