By Dr. Kariuki Muigua, PhD (Leading Environmental Law Scholar, Policy Advisor, Natural Resources Lawyer and Dispute Resolution Expert from Kenya), Winner of Kenya’s ADR Practitioner of the Year 2021, ADR Publication of the Year 2021 and CIArb (Kenya) Lifetime Achievement Award 2021*

The realization of the right to education in Kenya is enshrined in the Constitution and provided for by various of the legislations which seek to make education for all a reality. The laws below provide for the delivery, quality, and relevance of the education systems in Kenya.

Constitution of Kenya, 2010

In line with the Sustainable Development Goal 4 (the provision of quality education and Sustainable Development) and Goal 16 (Promote peaceful and inclusive societies for sustainable development, provide access to justice for all, and build effective, accountable, and inclusive institutions at all levels) the constitution of Kenya provides for the right of education to all children in and including the youth. Article 53 of the constitution of Kenya 2010 provides for the rights of children to the effect that every child has a right to free and compulsory basic education. Article 54 of the Constitution guarantees that a person with any disability is entitled to…access educational institutions and facilities for persons with disabilities that are integrated into society to the extent compatible with the interests of the person.

In Article 56, the Constitution in also secures the rights of the minorities and marginalized groups in society by guaranteeing that the State shall put in place affirmative action programmes designed to ensure that minorities and marginalized groups, inter alia, are provided special opportunities in educational and economic fields. It has been argued that the African continent’s youthful population presents a powerful opportunity for accelerated economic growth and innovation while other world regions face an aging population with subsequent issues such as high health costs for elderly care and high demand for skilled and qualified labour. However, the same demographic group also presents economic and social challenges, as well as implications for peace and security.

By providing for the right of education to the youth, the Constitution envisions the provision of quality higher education to the youth considering that most, if not all, of the students learning at the tertiary institutions, are of the youth age bracket. The Constitution states that the state shall take measures, including affirmative action programmes, to ensure that the youth access relevant education and training and have opportunities to associate, be represented, and participate in political, social, economic, and other spheres of life. Through this, it is evident that the Government of Kenya has adopted the provision of education as the main pillar in the national development agenda. All that is required is the necessary funding and political goodwill. Regarding the elderly in society, the Constitution in Article 57 provides that the State shall take measures to ensure the rights of older persons— fully participate in the affairs of society; and pursue their personal development.

Basic Education Act, 2013

The Basic Education Act, 2013 was enacted to give effect to Article 53 of the Constitution and other enabling provisions; to promote and regulate free and compulsory basic education; to provide for accreditation, registration, governance, and management of institutions of basic education; to provide for the establishment of the National Education Board, the Education Standards and Quality Assurance Commission, and the County Education Board and for connected purposes. The Act establishes a National Education Board and a County Education Board for every county all of which are to facilitate close working relations between the National and County governments in discharging their mandates towards the realization of the right to free and compulsory basic education for all. Notably, the Act not only provides for adequate structures and government obligations towards the provision of the right to education but also makes provisions for different forms of education targeting different groups of learners and their needs. The Act mainly requires adequate funding and goodwill in its implementation.

The National Government is bound, through the Cabinet Secretary: provide free compulsory basic education to every child; ensure compulsory admission and attendance of children of compulsory school age at school or an institution offering basic education; ensure that children belonging to marginalized, vulnerable or disadvantaged groups are not discriminated against and prevented from pursuing and completing basic education; provide human resource including adequate teaching and non-teaching staff according to the prescribed staffing norms; provide infrastructure including schools, learning and teaching equipment and appropriate financial resources; ensure quality basic education conforming to the set standards and norms; provide special education and training facilities for talented and gifted pupils and pupils with disabilities; ensure compulsory admission, attendance and completion of basic education by every pupil; monitor functioning of schools; advise the national government on financing of infrastructure development for basic education; and provide free, sufficient and quality sanitary towels to every girl child registered and enrolled in a public basic education institution who has reached puberty and provide a safe and environmentally sound mechanism for disposal of the sanitary towels.

Technical and Vocational Education and Training Act, 2013

The Technical and Vocational Education and Training Act, 2013 was enacted to provide for the establishment of a technical and vocational education and training system; to provide for the governance and management of institutions offering technical and vocational education and training; to provide for coordinated assessment, examination, and certification; to institute a mechanism for promoting access and equity in training; to assure standards, quality, and relevance; and for connected purposes. In the discharge of its functions and exercise of their powers under this Act, the implementing authorities are to be guided by following principles: training shall be availed to all qualified Kenyans without discrimination; there shall be instituted appropriate mechanisms to promote access, equity, quality and relevance in training to ensure adequate human capital for economic, social and political development.

Further, the training programmes are to take into account—(i) the educational, cultural and social-economic background of the people; (ii) the technical and professional skills, knowledge and levels of qualification needed in the various sectors of the economy and the technological and structural changes to be expected; (iii) the trends towards integration of information and communication technologies to multiply access and improve training capacity, delivery modes and life-long employability of graduates; (iv) the employment opportunities, occupational standards and development prospects at the international, national, regional and local levels; and(v) the protection of the environment and the common heritage of the country. The Act prohibits discrimination on grounds of race, colour, gender, religion, national or social origin, political or other opinions, economic status, or any other ground save as provided under this Act.

Teachers Service Commission Act, 2012

The Teachers Service Commission Act, 2012 as enacted to make further provision for the Teachers Service Commission established under Article 237 of the Constitution, its composition; functions and powers; the qualifications and procedure for appointment of members; and connected purposes. In addition to the functions set out in Article 237 of the Constitution, the Commission has power to: formulate policies to achieve its mandate; provide strategic direction, leadership, and oversight to the secretariat; ensure that teachers comply with the teaching standards prescribed by the Commission under this Act; manage the payroll of teachers in its employment; facilitate career progression and professional development for teachers in the teaching service including the appointment of head teachers and principals; monitor the conduct and performance of teachers in the teaching service; and do all such other things as may be necessary for the effective discharge of its functions and the exercise of its powers.

Higher Education Loans Board Act, 1995

The Higher Education Loans Board Act, 1995 was enacted to provide for the establishment of a Board for the management of a Fund to be used for granting loans to assist Kenyan students to obtain higher education at recognized institutions within and outside Kenya and for matters incidental thereto and connected therewith. “Higher education” under the Act means any course of education offered by an institution above the standard of Kenya Certificate of Secondary Education or any equivalent certificate approved by the Board.

*This is article is an extract from an article by Dr. Kariuki Muigua, PhD, Kenya’s ADR Practitioner of the Year 2021 (Nairobi Legal Awards) and Lifetime Achievement Award 2021 (CIArb Kenya): Muigua, K., “Towards Inclusive and Quality Education as a Tool for Empowerment in Kenya,” Available at: http://kmco.co.ke/wp-content/uploads/ 2020/12/ Towards-Inclusive-and-Quality-Education-as-a-Tool-for-Empowerment-in-Kenya-Kariuki-Muigua-Dec-2020.pdf. Dr. Kariuki Muigua is Kenya’s foremost Environmental Law and Natural Resources Lawyer and Scholar, Sustainable Development Advocate and Conflict Management Expert. Dr. Kariuki Muigua is a Senior Lecturer of Environmental Law and Dispute resolution at the University of Nairobi School of Law and The Center for Advanced Studies in Environmental Law and Policy (CASELAP). He has published numerous books and articles on Environmental Law, Environmental Justice Conflict Management, Alternative Dispute Resolution and Sustainable Development. Dr. Muigua is also a Chartered Arbitrator, an Accredited Mediator, the Africa Trustee of the Chartered Institute of Arbitrators and the Managing Partner of Kariuki Muigua & Co. Advocates. Dr. Muigua is recognized as one of the leading lawyers and dispute resolution experts by the Chambers Global Guide 2021. 

References

Basic Education Act, No 14 of 2013, Laws of Kenya, Government Printer, Nairobi.

Constitution of Kenya, Laws of Kenya, Government Printer, Nairobi (2010).

Higher Education Loans Board Act, No. 3 of 1995, Laws of Kenya, Government Printer, Nairobi.

Teachers Service Commission Act, No. 20 of 2012, Laws of Kenya, Government Printer, Nairobi.

Technical and Vocational Education and Training Act, No. 29 of 2013, Laws of Kenya, Government Printer, Nairobi.

SDG 4 Targets 4.1-4.7(a)(b)(c).

UNESCO, ‘The Right to Education – Law and Policy Review Guidelines’ (UNESCO, 28 July 2014),5 https://en.unesco.org/news/right-education-law-and-policy-review-guidelines (Accessed 06/12/2021).

UN Office of the Special Adviser on Africa, OSAA ‘Youth Empowerment,’ https://www.un.org/en/africa/osaa/peace/youth.shtml, (Accessed 06/12/2021).