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.
