Knowledge has become too expensive in Kenya!- Kigondu Ngata (School of Law-UoN)

The right to education is a crucial and important fundamental human right. The enjoyment of the right faces serious challenges across the country, emanating from perennial violations , majority of which revolve around lack of resources, unavailability of schools, discrimination, inequality in access and resource allocation.

Kenya has a marked improvement in access to primary education, but completion rates are low due to impediments like child labor, early marriages and the exclusion of girl children. Early in 2003, when President Mwai Kibaki as he then was, introduced free primary education (FPE) without sufficient attention to facilities and resources, the quality of education has since  taken a downward trajectory. The school life expectancy (SLE) in Kenya in only 11years.

Confusing and conflicting education policies within the education sector, only serve to obfuscate a system already in dire straits. Not to mention brilliant recommendations in the Ominde report, Gacathi report, McKay report and the Koech commission all of which have lackadaisically been  implemented.

The new constitution (Prof. Ben Sihanya abhors calling it new 3 years later) institutionalizes education as a tool for upward social mobility, makes the state its custodian and commands affirmative action in certain circumstances. Education has not been devolved under the constitution. Article 53(1)(b) donates that every child has the right to free and compulsory basic education. The recently enacted basic education act has tried to breathe life into the said article by banning the admission fee for pupils joining public schools and punitive action against parents who fail to enroll their children to school.

Equally, under the plane of  international law, kenya still has obligations to fulfill the right to education, the commitment is binding , for instance under article 26 of the Universal declaration of human rights(UDHR), “education shall be free at least in elementary and fundamental stages…..” other  binding treaties include.

·         Article 4(a) of the UNESCO convention against discrimination in education

·         Article 13(2)(a) and (b) of the ICESCR, international covenant on  economic  social and cultural rights (kenya has not  ratified its protocol)

·         ARTICLE 28(1)(a) of the united nations convention on the rights of the child(CRC)

Moreover Kenya has also committed itself to goal no. 2 of the millennium development goals MDGs which is to achieve Universal primary education UPE with targets of ensuring by 2015, children both boys and girls will complete primary education.

Jurisprudence on the right to education shows that it’s not subject to progressive realization but immediate realization. Therefore Kenya cannot hide behind the doctrine of progressive realization to justify its failure to provide quality FPE. In Costa Rica, the constitutional court has declared that school fees or charges of any kind are unconstitutional, after parents filed a petition against a state educational institution for refusing to enroll their son in the state sponsored school after he could not afford to pay “voluntary contribution”. The court held that it hindered constitutionally obligatory right to basic education.

Judicial decisions in Africa has upheld and whittled down the right to education in proportional measure. For instance, the Kenyan high court decision in  R vs.  Head teacher, Kenya high school, exparte SMY, the court upheld the principals’ directive, stopping Muslim girls from wearing hijabs at school. A loccus classicus  of clash between right to religion and right to education. In Zimbabwe, the case of Dzvova Vs Minister For Education Sports And Culture &Others, the Supreme Court issued a general declaration that expulsion of Rastafarian student from school on the basis of his belief contravened the Zimbabwean constitutional provisions on the right to education. An ECOWAS decision of Serap Vs Nigeria, the court held that corruption and mismanagement of funds couldn’t justify a states violation of the right to education. (See also open society initiative vs. government of Kenyan a.k.a the Nubian children case)

Going forward I would recommend 10 strong points for  the jubilee government, now that the country is turning 50, amid its midlife crisis, to do the following in favor of the right to education.

1)    Provide free transport by having GoK designated buses to ferry to school all children especially those in ASALs who live very far from school.

2)    Provide safe drinking water in all public schools.

3)    Ensure sanitation facilities that are beyond reproach.

4)    Provide classrooms, textbooks, blackboards and stationer.

5)    Provide qualified teachers by lifting the ban on hiring of teachers.

6)    Ensure that while FPE is compulsory and state funded, then tertiary education is highly accessible to all.(e.g. By increasing HELB).

7)    Ensure that children with disabilities have effective access to education in a manner conducive to the fullest possible social integration.

8)    Give free meals to all public schools pupils.

9)    Proscribe all illegal levies and or hidden costs charged by schools e.g. supplementary exam fees, KCSE fees, PTA fees, additional tuition fees, development levy, trip costs, and fees for meals.

10) Amend the law to include death penalty on the proof of a balance of probabilities to those embezzling FPE funds.

While my list above is not exhaustive in any way, I humbly submit that as a country who  each year cannot account for 300 billion of budgetary allocations(euphemism for misappropriation)  we can realize the right to education for posterity and economic progress failure to which the bourgeoisie will fly their children out to greener academic pastures, or enroll them in high end local international schools where  term fees is equal to  a governors salary, the middle class will build academies for their children while the proletariats child will be wasting away in the village, sinking deeper in academic penury while making daily odysseys’ into a dilapidated public school beyond the horizon.