Constitutional rights for children: An urgent call for early childhood development in South Africa

Daily Maverick

5 days ago

The right to development must be understood holistically and is a legal entitlement rooted in international law. Access to early learning, nutrition, healthcare, responsive caregiving, safety, social services and play are not optional services, but are entitlements that enable children to survive, thrive, and participate fully in society.
South Africa cannot claim to uphold children's rights while the foundations for early childhood development (ECD) — the most critical phase of human development — remain legally invisible. Despite a growing budget and increased political support, the country's youngest six million citizens will continue to be deprioritised without a justiciable right to ECD.
This was the challenge a powerful group of legal minds and ECD champions confronted head-on at the Right to ECD Symposium hosted by the Real Reform for ECD movement in Johannesburg. The Symposium brought together ECD practitioners, law and policy experts, and seasoned ECD advocates in a powerful show of collective commitment to one goal: confronting the legal vacuum at the heart of ECD delivery.
The keynote address by Associate Professor Noam Peleg, an expert on children's rights and development, grounded the discussions in international law. He urged South Africans to rethink the legal framing of childhood. He argued that children should not be seen merely as future adults but as full rights-holders in the present. He called for the full recognition of the right to development, from zero to 18 years as understood in international law, with ECD recognised as a critical foundation for the realisation of that right.
Peleg's core message was that the right to development must be understood holistically and is a legal entitlement rooted in international law. Access to early learning, nutrition, healthcare, responsive caregiving, safety, social services and play are not optional services, but are entitlements that enable children to survive, thrive, and participate fully in society.
No enforceable right to ECD
While South Africa's Constitution protects several of these elements individually, there is no express unified and enforceable right to ECD. Further, the absence of a legally binding, cross-sectoral legislative framework weakens accountability and undermines coordination on service delivery. Roles remain poorly defined across departments, responsibilities shift without consequence, and systemic failures are often left unchallenged unless civil society steps in to advocate.
These are not theoretical concerns but have urgent real world impacts. Despite the welcome political shift by the government to significantly increase the ECD budget to more than R10-billion, the allocation remains inadequate to achieve universal access. Moreover, without legal and regulatory reform, policy commitments concerning universal access will not be achieved.
Presenting a proposed framework for constitutionalising the right to early childhood development, Nurina Ally (Director of the Centre for Law and Society at the University of Cape Town) and Tatiana Kazim (Research Associate at the Centre for Law and Society) argued that the South African Constitution, interpreted in light of international law, implicitly includes an umbrella right to early childhood development, holistically understood, as well as a number of component rights (the spokes of the umbrella): rights to early learning; adequate nutrition; good health; responsive caregiving; rest, leisure and play; and opportunities to participate in cultural life.
Both the umbrella right and each of the components, or spokes, also entail corresponding duties on the part of the state, families, and service providers. Importantly, the overarching umbrella right entails duties of coordination and funding on the part of the various government departments implicated in ECD service delivery, such as the departments of Basic Education, Health, and Social Development.
However, a constitutional right to ECD has not yet been widely recognised in South Africa, either in civil society, the courts, or in the government. The failure to recognise such a right is evident in existing legislation and policies, and has serious consequences for the ECD sector and for young children. Legal clarity is necessary for enforcement as well as accountability.
Consequences of legal gaps
The consequences of the legal gaps are felt throughout early childhood development services. Among many other issues, departments work in silos, children between birth and two are neglected, parents are inadequately supported, nutrition support is inadequate, and health policies do not speak to the National Integrated ECD Policy.
Many ECD programmes are locked out of public funding due to outdated planning laws, inflexible infrastructure norms, burdensome registration requirements, and the lack of a qualified and well-trained ECD workforce.
While incremental reforms — such as amending the Children's Act, revising municipal bylaws, and easing regulatory requirements — are necessary, they are insufficient. While we strongly support these reforms and call for the Department of Basic Education to table the Children's Amendment Bill in Parliament this year, we also urge it to commit to a longer-term law reform strategy, as outlined in its own ECD 2030 Strategy.
What we need is a bold shift: recognition that the Constitution protects an umbrella right to early childhood development, which encompasses the full essential package of ECD services. Crucially, this right is enforceable by the people it affects: the children, families and communities who rely on it.
The Right to ECD Symposium was a beginning. It marked the start of a new phase in the movement for legal recognition of ECD as a right, not just a policy objective. Real change requires more than political will, it requires a legal framework that is principled, enforceable, and grounded in the lived realities of children in South Africa. The time for fragmented approaches has passed. The right to ECD must be recognised, resourced, and protected by law. DM
Nobukhosi Zulu-Taruza is the Law and Policy Specialist at Ilifa Labantwana. Tess Peacock is the Executive Director at the Equality Collective. Nurina Ally is the Director of the Centre for Law and Society and Senior Lecturer in the Faculty of Law at the University of Cape Town. Cameron McConnachie is the co-lead of the Legal Resources Centre's Education Programme. Peter Daniel Al-Naddaf is a Legal Researcher at Equal Education Law Centre. Mmatsetshweu Ruby Motaung is the Executive Director of TREE (Training and Resources in Early Education).