The Right to Education: An Overview by Arnold Ochieng Oginga

THE RIGHT TO EDUCATION: AN OVERVIEW- ARNOLD OCHIENG OGINGA

THE RIGHT TO EDUCATION: AN OVERVIEW

ARNOLD OCHIENG OGINGA

Paper Prepared on behalf of the Youth Education Trust Organization

1st November, 2016

Introduction

No precise definition exists as to what the „right to education‟ denotes. The closes definition

of the word „education‟ has perhaps been given by the Supreme Court of India in Sole

Trustee, Lok Shikshana Trust vs C.I.T.1, where the phrase was defined as the systematic

instruction given to the young in preparation for the work of life; it also connotes the whole

course of scholastic instruction which a person has received and further, that what education

connotes is the process of training and developing the knowledge, skill, mind and character of

students by formal schooling.In that context, education may be defined as formal or informal

training aimed at impacting knowledge. Over the years, the right to education has appeared in

several Constitutions and international instruments, and in addition, the topic of the right to

education has received considerable attention from various scholars. This paper gives a brief

overview of the normative content of the right to education.

International and National Recognition of the Right to Education

The right to education has been accorded recognition in various national and international

instruments, to wit:

1(1976) 1 S.C.C. 254

https://indiankanoon.org/doc/1045974/



Article 17 of the African Charter on Human and Peoples’ Rights provides that every

individual shall have the right to education.

Article 26 of the Universal Declaration of Human Rights states:

(1) Everyone has the right to education. Education shall be free, at least in the

elementary and fundamental stages. Elementary education shall be compulsory.

Technical and professional education shall be made generally available and higher

education shall be equally accessible to all on the basis of merit.

(2) Education shall be directed to the full development of the human personality and

to the strengthening of respect for human rights and fundamental freedoms. It

shall promote understanding, tolerance and friendship among all nations, racial or

religious groups, and shall further the activities of the United Nations for the

maintenance of peace.

(3) Parents have a prior right to choose the kind of education that shall be given to

their children.

Article 28 of the Convention on the Rights of the Child provides that:

(1) States Parties recognize the right of the child to education, and with a view

to achieving this right progressively and on the basis of equal opportunity,

they shall, in particular:

(a) Make primary education compulsory and available free to all;

(b) Encourage the development of different forms of secondary

education, including general and vocational education, make them

available and accessible to every child, and take appropriate

measures such as the introduction of free education and offering

financial assistance in case of need;

(c) Make higher education accessible to all on the basis of capacity by

every appropriate means;

(d) Make educational and vocational information and guidance

available and accessible to all children;

(e) Take measures to encourage regular attendance at schools and the

reduction of drop-out rates.

(2) States Parties shall take all appropriate measures to ensure that school

discipline is administered in a manner consistent with the child's human

dignity and in conformity with the present Convention.


(3) States Parties shall promote and encourage international cooperation in

matters relating to education, in particular with a view to contributing to

the elimination of ignorance and illiteracy throughout the world and

facilitating access to scientific and technical knowledge and modern

teaching methods. In this regard, particular account shall be taken of the

needs of developing countries.

Article 29 further provides that:

(1) States Parties agree that the education of the child shall be directed to:

(a) The development of the child's personality, talents

and mental and physical abilities to their fullest

potential;

(b) The development of respect for human rights and

fundamental freedoms, and for the principles

enshrined in the Charter of the United Nations;

(c) The development of respect for the child's parents,

his or her own cultural identity, language and

values, for the national values of the country in

which the child is living, the country from which

he or she may originate, and for civilizations

different from his or her own;

(d) The preparation of the child for responsible life in

a free society, in the spirit of understanding, peace,

tolerance, equality of sexes, and friendship among

all peoples, ethnic, national and religious groups

and persons of indigenous origin;

(e) The development of respect for the natural

environment.

(2)No part of the present article or article 28 shall be construed so as to interfere

with the liberty of individuals and bodies to establish and direct educational

institutions, subject always to the observance of the principle set forth in

paragraph 1 of the present article and to the requirements that the education given

in such institutions shall conform to such minimum standards as may be laid

down by the State.


Article 10 of the International Convention on the Elimination of All Forms of Racial

Discrimination2 is to the effect that:

States Parties shall take all appropriate measures to eliminate discrimination against

women in order to ensure to them equal rights with men in the field of education and

in particular to ensure, on a basis of equality of men and women:

(a) The same conditions for career and vocational guidance,

for access to studies and for the achievement of diplomas

in educational establishments of all categories in rural as

well as in urban areas; this equality shall be ensured in

pre-school, general, technical, professional and higher

technical education, as well as in all types of vocational

training;

(b) Access to the same curricula, the same examinations,

teaching staff with qualifications of the same standard and

school premises and equipment of the same quality;

(c) The elimination of any stereotyped concept of the roles of

men and women at all levels and in all forms of education

by encouraging coeducation and other types of education

which will help to achieve this aim and, in particular, by

the revision of textbooks and school programmes and the

adaptation of teaching methods;

(d) The same opportunities to benefit from scholarships and

other study grants;

(e) The same opportunities for access to programmes of

continuing education, including adult and functional

literacy programmes, particularly those aimed at

reducing, at the earliest possible time, any gap in

education existing between men and women;

(f) The reduction of female student drop-out rates and the

organization of programmes for girls and women who

have left school prematurely;

(g) The same Opportunities to participate actively in sports

and physical education;

(h) Access to specific educational information to help to

ensure the health and well-being of families, including

information and advice on family planning.

Article 22 of the Convention on the Protection of Refugeesprovides:

2UN General Assembly, International Convention on the Elimination of All Forms of Racial

Discrimination, 21 December 1965, United Nations, Treaty Series, vol. 660, p. 195


(1) The contracting state shall accord to refugees the same treatment as is accorded to

nationals with respect to elementary education.

(2) …With respect to education other than elementary education and, in particular, as

regards access to studies, the recognition of foreign school certificates, diplomas

and degreed, the award of scholarships.

At the national level, Article 43 of the Constitution of Kenya, 2010, provides thatevery

person has the right to education.

The Normative Content and the Obligation of States in Regard to the Right

In its General Comment No. 13 of 19993, the Committee on Economic, Social and Cultural

Rights (CESCR) observed that:

Education is both a human right in itself and an indispensable means of realizing other

human rights. As an empowerment right, education is the primary vehicle by which

economically and socially marginalized adults and children can lift themselves out of

poverty and obtain the means to participate fully in their communities. Education has

a vital role in empowering women, safeguarding children from exploitative and

hazardous labour and sexual exploitation, promoting human rights and democracy,

protecting the environment, and controlling population growth. Increasingly,

education is recognized as one of the best financial investments States can make. But

the importance of education is not just practical: a well-educated, enlightened and

active mind, able to wander freely and widely, is one of the joys and rewards of

human existence.4

Education occupies an important place in our Constitution and culture. There has been

emphasis on free and compulsory education for children in this country for a long time. There

is a very strong historical perspective.5 Education today remains liberation, a tool for the

betterment of our civil institutions, the protection of our civil liberties, and the path to an

3 UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 13: The

Right to Education (Art. 13 of the Covenant), 8 December 1999, E/C.12/1999/10, available at

<http://www.refworld.org/docid/4538838c22.html> (accessed 24 October 2016)

4Ibid.,para. 1.

5Avinash Mehrotra vs Union of India, (2009) 6 S.C.C. 398, para. 24.

http://www.refworld.org/docid/4538838c22.html



informed and questioning citizenry.6 Then as now, we recognize education's "transcendental

importance" in the lives of individuals and in the very survival of our Constitution and

Republic. Education remains essential to the life of the individual, as much as health and

dignity, and the State must provide it, comprehensively and completely, in order to satisfy its

highest duty to citizens and unlike other fundamental rights, the right to education places a

burden not only on the State, but also on the parent or guardian of every child, and on the

child herself.7 The right to education, then, is more than a human or fundamental right as it is

a reciprocal agreement between the State and the family, and it places an affirmative burden

on all participants in our civil society. In addition, the State has the right to regulate the

standard of education, but at the same time, the parents' right is also a pivotal point in the

democratic system.8

The State plays a fundamental role in ensuring the educational needs of the citizens are met.

This entails the provision of the resources necessary for the realization of the right, these may

include textbooks, employing the relevant personnel, ensuring building structures are in place

and the utilization of public lands for the purposes of setting up educational facilities and

other support facilities. It has been acknowledged that the decision of academic matters are

best left to experts who are familiar with it and Courts may not interfere with it and the State

can prescribe textbooks, the suitable curriculum based on a general consensus which accords

with classroom should be evolved and if the State, in the interest of proper and healthy

education, prescribes textbooks of high merit and excellence, it cannot be regarded as

unreasonable and when the legislature decides to adopt this course, it must necessarily entrust

6Krishnagiri District Private vs The State Of Tamil Nadu, Writ Petition Nos. 3051 to 3056, 3386,

3387, 3398, 3410, 3431, 3516, 3603 and 3982 of 2010

7 Ibid.

8 Ibid.


this task to some authority.9 Furthermore, the State can impose conditions which prescribe

syllabus, courses of study, regulations of conditions of employment of teachers etc. and the

State can make regulations with a view to achieve the goal of maintenance of excellence.10

CESCR notes that while the precise and appropriate application of the terms will depend

upon the conditions prevailing in a particular State party, education in all its forms and at all

levels is to exhibit the following interrelated and essential features:

(a) Availability - functioning educational institutions and programmes have to be

available in sufficient quantity within the jurisdiction of the State party. What they

require to function depends upon numerous factors, including the developmental

context within which they operate; for example, all institutions and programmes are

likely to require buildings or other protection from the elements, sanitation facilities

for both sexes, safe drinking water, trained teachers receiving domestically

competitive salaries, teaching materials, and so on; while some will also require

facilities such as a library, computer facilities and information technology;

(b) Accessibility - educational institutions and programmes have to be accessible to

everyone, without discrimination, within the jurisdiction of the State party.

Accessibility has three overlapping dimensions:

(i) Non-discrimination - education must be accessible to all, especially

the most vulnerable groups, in law and fact, without discrimination on

any of the prohibited grounds (see paras. 31-37 on non-discrimination);

(ii) Physical accessibility - education has to be within safe physical reach,

either by attendance at some reasonably convenient geographic

9 Ibid.

10 Ibid.


location (e.g. a neighbourhood school) or via modern technology (e.g.

access to a “distance learning” programme);

(iii) Economic accessibility - education has to be affordable to all. This

dimension of accessibility is subject to the differential wording of

article 13 (2) in relation to primary, secondary and higher education:

whereas primary education shall be available “free to all”, States

parties are required to progressively introduce free secondary and

higher education;

(c) Acceptability - the form and substance of education, including curricula and teaching

methods, have to be acceptable (e.g. relevant, culturally appropriate and of good

quality) to students and, in appropriate cases, parents; this is subject to the educational

objectives required by article 13 (1) and such minimum educational standards as may

be approved by the State (see art. 13 (3) and (4));

(d) Adaptability - education has to be flexible so it can adapt to the needs of changing

societies and communities and respond to the needs of students within their diverse

social and cultural settings.11

Primary education includes the elements of availability, accessibility, acceptability and

adaptability which are common to education in all its forms and at all levels.12

Secondary

education includes the elements of availability, accessibility, acceptability andadaptability

which are common to education in all its forms and at all levels.13

According to Article 13 (2)

(b), secondary education “shall be made generally available and accessible to all by every

appropriate means, and in particular by the progressive introduction of free education”. The

phrase “generally available” signifies, firstly, that secondary education is not dependent on a

11

Para. 6. 12

Para. 8. 13

Para. 11.


student's apparent capacity or ability and, secondly, that secondary education will be

distributed throughout the State in such a way that it is available on the same basis to all.

The phrase “every appropriate means” reinforces the point that States parties should adopt

varied and innovative approaches to the delivery of secondary education in different social

and cultural contexts.14

Progressive introduction of free education means that while States

must prioritize the provision of free primary education, they also have an obligation to take

concrete steps towards achieving free secondary and higher education.15

Higher education includes the elements of availability, accessibility, acceptability and

adaptability which are common to education in all its forms at all levels.16

According to

CESCR, while secondary education “shall be made generally available and accessible to all”,

higher education “shall be made equally accessible to all, on the basis of capacity” and it

follows therefore that higher education is not to be “generally available”, but only available

“on the basis of capacity”. The “capacity” of individuals should be assessed by reference to

all their relevant expertise and experience.17

The right to education is to be enjoyed equally by all regardless of age, sex, colour etc.

CESCR emphasizes that the enjoyment of the right to fundamental education is not limited by

age or gender; it extends to children, youth and adults, including older persons. Further that

fundamental education is an integral component of adult education and life-long learning as a

result therefore, curricula and delivery systems must be devised which are suitable for

students of all ages.18

14

Para 13. 15

Para. 14. 16

Para. 17. 17

Para. 19. 18

Para. 24.


The enjoyment of academic freedom requires the autonomy of institutions of higher

education.19

Autonomy is that degree of self-governance necessary for effective decision-

making by institutions of higher education in relation to their academic work, standards,

management and related activities. Self-governance, however, must be consistent with

systems of public accountability, especially in respect of funding provided by the State.20

Given the substantial public investments made in higher education, an appropriate balance

has to be struck between institutional autonomy and accountability and while there is no

single model, institutional arrangements should be fair, just and equitable, and as transparent

and participatory as possible.21

The foregoing has been reiterated by the Courts, for instance,

In P.M. Bhargavavs University Grants Commission22

, the Supreme Court of India was

confronted with a question which dealt with the inclusion of a subject, viz. the science of

Astrology, as a course of study in the university curriculum, the Supreme Court rendered the

position that:

…The courts are not expert in academic matters and it is not for them to decide as

what course should be taught in university and what should be their curriculum. This

caution was sounded in University of Mysore vs Govinda Rao23

wherein

Gajendragadkar,J. (as His Lordship then was) speaking for the Constitution Bench

held that it would normally be wise and safe for the courts to leave the decisions of

academic matters to experts who are more familiar with the problems they face than

the courts generally can be. ...

Similarly, in Dr. J.P. Kulshreshtha vs Chancellor, Allahabad University24

it was noted that:

While there is no absolute ban, it is a rule of prudence that courts should

hesitate to dislodge decisions of academic bodies. But university organs, for

that matter any authority in our system are bound by the rule of law and

cannot be law unto themselves. If the Chancellor or any other authority lesser

19

Para. 40. 20

Ibid. 21

Ibid. 22

(2004) 6 S.C.C. 661 23

[1964] 4 SCR 575 24

(1980) II LLJ 175 (SC)





in level decides an academic matter or an educational question, the court keeps

its hands off; but where a provision of law has to be read and understood, it is

not fair to keep the court out'.

Autonomy of learning institutions should be respected at all times and Courts should not

encroach on their mandate. The same also extends to disciplinary matters which are the

prerogative of the learning institutions and every person enrolled in such institutions is under

an obligation to abide by such laws. In the Kenyan case of Oluoch Dan Owino and 3 Others

vs Kenyatta University25

, the petitioners alleged that their right to education under Article 43

(1) (f) of the Constitution had been violated by the Respondent as a result of their suspension

from the Respondent institution following disciplinary action being taken against them. The

2nd

, 3rd

and 4th

petitioners were suspended for some time, with the right to resume their

studies after serving their periods of suspension. The Court in its decision reached the

conclusion that:

“[51]… the right to education does not denote the right to undergo a course of

education in a particular institution on one‟s terms. It is my view that an educational

institution has the right to set certain rules and regulations, and those who wish to

study in that institution must comply with such rules. One enters an educational

institution voluntarily, well aware of its rules and regulations, and in doing so

commits himself or herself to abide by its rules. Unless such rules are demonstrated to

be unreasonable and unconstitutional, to hold otherwise would be to invite chaos in

educational institutions. I can therefore find no violation of the right to education in

respect of the petitioners.

Similarly, in Eliud Nyauma Omwoyo and 2 Others vs Kenyatta University26

, the petitioners

were students at the respondent University. Prior to their graduation, it was discovered that

they had been involved in examination irregularities and so their names were taken out of the

graduation list and disciplinary action undertaken. The petitioners filed the Petition claiming

their right to property under Article 40 under the Constitution had been violated because they

paid fees to the University and actions of the respondent to deny them value for that money

25

Petition No 54 of 2014 26

Petition No. 365 of 2012


amounted to taking away their property, arbitrarily. They also claimed violation of the right

to life under Article 26 because their intended source of livelihood had allegedly been taken

away and also that their right to education under Article 43 (1) (f) of the Constitution had

been infringed. The Court in its decision rendered itself as follows:

“[50]… it is upon the petitioner to argue out their case with precision and to show the

Court the nature and extent of infringement of any constitutional right. The petitioners

have not shown how their right under Article 26 has been infringed.

[58]… that argument cannot stand and I therefore hold that their right under Article

40 was not violated. I say so because they received tuition and all other necessities

that a student is entitled to and they properly paid for the same…

[59] Article 24 thereof provides for limitation of rights while Article 25 provides for

fundamental rights and freedoms that may not be limited and the right to education is

not listed as a right that cannot be limited…

[60]… the Kenyatta University Act therefore provides for a series of examinations

that students must pass before they are awarded degrees. Failure of any person to

meet such conditions cannot per se be deemed to be a violation of the right to

education…

In Alice Njeri Ngiciri vs Kenyatta University27

, The Learned Judge pointed out that:

The first is the right of a student, who has undergone a course of study at the

Respondent University, to realize the purpose of that course of study in a timely and

efficient manner. The other relates to the interest that the University has in ensuring

that those qualifying from its academic training do so with the grades that they deserve,

and that there is no cheating or tampering with grades which would undermine the

credibility and integrity of degrees awarded by the institution.

The first troubling possibility goes to the integrity of students pursuing courses of study

at the University and the institutions own staff; that students and staff of the

Respondent are willing to reduce the award of grades and qualifying degrees to a

transactional exchange in which students‟ grades are altered to reflect better than the

students have been awarded by their Tutors. The other troubling possibility is that the

Respondent‟s examination systems are so inefficient and compromised that it cannot

27



safeguard the integrity of the grades it awards. In light of these possibilities, the Court

is called upon, in my view, to balance these competing interests while bearing in mind

the greater public interest in a system of higher education that can be relied on to help

achieve societal goals in education. I shall revert to a consideration of the issue of

greater public interest that this matter raises later in this judgment.

In Republic vs Kenyatta University and 2 Others Ex Parte Jared Juma28

, the Court

emphasized on the role of learning institutions and their disciplinary role, in the following

terms:

Discipline at the Respondent‟s University is necessarily an internal process conducted

using internal personnel. It would be impractical to sub-contract or delegate as it were,

this function to an outside agency. Most bodies established under statute also establish

disciplinary committees. Kenyatta University is no exception. The composition of the

disciplinary committee is set out in the Statute, and it comprises University officers.

The University has jurisdiction to conduct its own disciplinary proceedings. This must

necessarily be so. The suggestion that disciplinary proceedings are a matter for courts

is untenable…the existence of such a disciplinary committee has always been

recognized by the courts. The courts also recognize that their relationship with such

committees is limited to supervision.

Similarly in the case of Arthur Kaindi Nzioka vs Kenyatta University29

Wendoh J stated that:

When it comes to such matters of discipline it is up to those institutions/clubs to ensure

that they strictly follow procedure that is laid down in their respective statutes… if such

institutions want the court to keep off interfering with the management of their

institutions, they have to comply with and adhere to all procedure laid down in their

respective statutes to avoid courts intervention… in the circumstances, considering the

respondent‟s total failure to comply with procedure relating to discipline, this court

cannot just sit back throw its hand up and say that it is powerless to say anything to

uphold the applicants rights.

The courts will only interfere with the decisions of learning institutions where there has been

a clear breach of the rules of natural justice and the law. That is why in Daniel Nyongesa and

Others vs Egerton University College30

Nyarangi J.A stated thus:

28

HC Misc. Civil App No. 90 of 2009 29

Misc. App No. 316 of 2007


Courts are very loathe to interfere with decisions of domestic bodies and tribunals

including college bodies. Courts in Kenya have no desire to run Universities or indeed

any other bodies. However, courts will interfere to quash decisions of any bodies when

the courts are moved to do so where it is manifest that a decision has been made

without fairly and justly hearing the person concerned or the other side, it is the duty

of the courts to curb excesses of officials and bodies who exercise administrative or

disciplinary measures. Courts are the ultimate custodians of the rights and liberties of

people. Whatever the status and there is no rule of law that courts will abdicate

jurisdiction merely because the proceedings or inquiry are of an internal disciplinary

character.

Both international and domestic law recognizes that the right to education is to be realized

progressively. In that regard, CESCR asserts that while the Covenant provides for progressive

realization and acknowledges the constraints due to the limits of available resources, it also

imposes on States parties various obligations which are of immediate effect, for instance,

States parties have the immediate obligations in relation to the right to education, such as the

“guarantee” that the right “will be exercised without discrimination of any kind” and the

obligation “to take steps” towards the full realization of article 13.31

Such steps must be

“deliberate, concrete and targeted” towards the full realization of the right to education and in

any event, the realization of the right to education over time, that is “progressively”, should

not be interpreted as depriving States parties‟ obligations of all meaningful content.

Progressive realization means that States parties have a specific and continuing obligation “to

move as expeditiously and effectively as possible” towards the full realization of article 13.32

There is a strong presumption of impermissibility of any retrogressive measures taken in

relation to the right to education, as well as other rights enunciated in the Covenant. If any

30

Civil Appeal No. 90 of 1989 31

Para. 43. 32

Para. 44.


deliberately retrogressive measures are taken, the State party has the burden of proving that

they have been introduced after the most careful consideration of all alternatives and that they

are fully justified by reference to the totality of the rights provided for in the Covenant and in

the context of the full use of the State party‟s maximum available resources.33

The ESCR has pointed out that the right to education, like all human rights, imposes three

types or levels of obligations on States parties:

(a) the obligations to respect;

(b) the obligation to protect; and

(c) the obligation to fulfil.

The obligation to fulfil incorporates both an obligation to facilitate and an obligation to

provide.34

The obligation to respect requires States parties to avoid measures that hinder or

prevent the enjoyment of the right to education. The obligation to protect requires States

parties to take measures that prevent third parties from interfering with the enjoyment of the

right to education.35

The obligation to fulfil (facilitate) requires States to take positive measures that enable and

assist individuals and communities to enjoy the right to education. Finally, States parties have

an obligation to fulfil (provide) the right to education.36

As a general rule, States parties are

obliged to fulfil (provide) a specific right in the Covenant when an individual or group is

unable, for reasons beyond their control, to realize the right themselves by the means at their

disposal.37

The Court in Michael Mutinda Mutemi vs Permanent Secretary, Ministry of

Education and 2 Others38

, addressed its mind to the obligation of the State in fulfilling this

right. Here the petitioner complained that the respondents were determined to deny his son

33

Para. 45. 34

Para. 46. 35

Ibid. 36

Para. 47. 37

Ibid. 38



his right to education as provided for in Article 43(1) and Article 53 (1) (b) and he believed

that the respondents had no interest in his socio- economic situation and contended that his

son has a right to seek bursary from them because under the Constitution and the Basic

Education Act, the respondents are tasked with the responsibility of providing free and

compulsory education as well as cushioning vulnerable families like his. Further, that he tried

to apply for a bursary from the Constituency Development Fund in his locality but found that

the kitty only offered a maximum of Kshs.4,000 per year yet his son's school fee for the year

2013 alone was amounting to about Kshs.50,000. The petitioner added that he had used more

than Kshs. 30, 000 so far to secure his son's right to education and sought that the respondents

should pay the costs of the Petition so that he may utilize the same for his son's fees. And

additionally that in the event there is another bursary kitty other than the CDF one, then the

respondents ought to inform him about it and the form and manner of applying for the same.

The Court in its determination of the matter held:

[17] I wholly agree with the learned judge and I should now pose the question

whether the Respondents have fulfilled their obligations in accordance with Article

43and 21 of the Constitution in the context of the Petitioner's complaints in this case.

The Respondents submit that the Government is doing its best to meet its obligations

and in terms of the availability of resources they state that it has set up bursary funds

at both national and constituency levels to assist needy students like the Petitioner's

son.

[18] Sadly, the Respondents have failed to demonstrate concrete policy measures,

guidelines and the progress made by the Government towards the realization of

economic rights and particularly the right to education. While I would like to believe

that there must be a Department within the Education Ministry which handles cases of

needy students, the Government must be seen to take firm steps in achieving the right

to education generally and I say so cognizant of the fact that there is a policy dubbed

“the free primary education” programme which does not cover secondary education.

That fact notwithstanding, it is important and fundamental that the Government

demonstrates its political and financial commitment in that regard and the actions

taken towards the progressive realization of the right to education in a holistic

manner.


[20] I adopt these words as if they were mine and would add that measuring a State‟s

performance in the implementation of the right to education is an onerous task in the

absence of generally accepted criteria, benchmarks and methodology for evaluating

the adequacy and effectiveness of steps taken towards its realization. Developing the

core competence for measuring implementation is decidedly crucial considering all

variables involved and the different spheres of Government involved in this

determination.

Further, whereas this may not be the right case to extrapolate on the meaning of the

right to education under Article 43(f) (the issue here is limited to the right to a bursary

and the arguments made were very narrow), the following issues need to be brought

to the attention of the Respondents as they formulate policies towards the realisation

of that right:

i) the obligation of progressive achievement exists independently of the increase in

resources (Limburg Principles on the implementation of the International

Covenants on Economic, Social and Cultural Rights) This means that the State

must effectively use the resources available and not wait for increased resources

(the “when the funds are available” argument) before implementing the right to

education.

ii) It is no excuse for the State to claim that one socio-economic right is subordinated

to another; for example that the right to basic education (and the laptop project for

example) must override the right to housing or that the right to basic education is

more important than the right to further education. Policies must be designed and

resources applied in a meaningful, practical and result based formulae than the

focus on one for political or other reasons.

iii) there may be need for the Ministry of Education to adopt an incremental

approach to implementation as is happening now but it needs a structure,

publicised framework.

I have deliberately digressed to state the above because the Respondents can avoid an

avalanche of litigation by setting out clear policies that are indicative of their

appreciation that socio- economic rights are here to stay. The defence of progressive

realisation may not be here for too long and other judgment of this Court are clear in

that regard…

[21] Let this judgment therefore be a wake-up call to the Respondents that Article

43of the Constitution does not sit there like a defected football player who has lost a

match. It is indeed alive and has started the run towards full realisation as opposed to

a slow shuffle in the name of progressive realisation.

[22] Turning back to the present Petition, the only information i have from the

Respondents is that there is a bursary fund at the national and constituency level while

the Petitioner states that the CDF Bursary Kitty was only willing to offer Kshs.4,000


per annum. Whether this amount is reasonable enough in gearing towards the goal to

attain the progressive realization of the right to education is not a question that can be

answered by this court but by the relevant Ministry, because very many

considerations must have gone into place to establish the criteria and that criteria

has not been placed before me.

[23] I note in any event that the Petitioner is also a small scale businessman and while

his spouse is employed, they have other school going children but this is a picture

that sounds all too familiar for a majority of Kenyan families and homes today. The

Petitioner also states that he spent about Kshs.30,000 in filing this Petition, a large

sum it looked at in the context of his explained dire economic situation but perhaps it

is money well spent because the issues he has raised, albeit narrowly to his situation

have implications beyond him.

[27] However, the very fact that the Petitioner's son was admitted to the school and

the school indeed accepted his needy status and the fact that some money was

procured from the CDF kitty should not be seen as an infringement on his right to

education.

[28] Having so said and noting my sentiments above regarding the need to have the

right to education, I will not dismiss the Petition. I say so because I believe that the

Petitioner is still deserving of a remedy and under Article 23 of the Constitution, this

Court is obligated to grant “an appropriate relief” where a matter deserving of it is

brought to its attention.

[29] In the event, I will order as follows;

i) Let the 1st and 3rd Respondents within 30 days

file a report indicating what measures they have

taken upon the Petitioner‟s Application for a

bursary for his son's school fees.

ii) Let the Petitioner also file a report within 30

days indicating the responses from his local

CDF on any assistance to him for purposes of

paying school fees.

iii) Final orders will be made upon receipt of those

reports.

In the case of Gabriel Nyabola vs Attorney General and 2 Others39

, the petitioner brought the

suit on his own behalf and on behalf of his child and also parents and children in private

schools in Kenya. He challenged the government policy of funding public secondary schools

39

Petition No 72 of 2012


to the exclusion of private ones. He contended that as a result education has become

unaffordable, inaccessible, and inequitable. He further argued that his daughter was being

discriminated against by the State on the ground that she is pursuing secondary education in a

private institution and it was also his argument that secondary education is part of basic

education and therefore the right to secondary education is underpinned by Article 53 (1) (b)

of the Constitution. The Court in its holding stated:

“[56] In order to progressively realize the free secondary school education, the

government must give priority to public schools which serve the majority of students

across the country. According to the Education Policy Framework Paper of 2012, “A

review of secondary educationdevelopment in Kenya indicates that the number of

secondary schools increased from 2,678 in1990 to 3,999 (11.3% private) enrolling

0.870 million students in 2003 and 4,215 (13% private)schools enrolling 1.03 million

students (10% in private schools) in 2006 and 1.7 Million in 2010(8% private).” This

shows that the majority of students in secondary schools go to public schools. Under

Article 43(3) of the Constitution, the State also has the obligation to give priority to

the most vulnerable and marginalized in the society. This means the funding of

children in private schools while a goal to be progressively realized, its application

immediately would undermine affirmative action which is also permitted under

Article 27(6) of the Constitution.

[57] I therefore find and hold that the failure by the State to provide financial and in

kind assistance to private schools is not discriminatory. The distinction between

children in private and public school is intended to achieve the overall goal of

progressively providing free education to all children in the future. My reasoning is

further buttressed by the ICESCR General Comment No. 13 on Education which

states at Para 54 that, “54. States parties are obliged to establish

“minimumeducational standards” to which all educational institutions established in

accordance with article13 (3) and (4) are required to conform. They must also

maintain a transparent and effectivesystem to monitor such standards. A State party

has no obligation to fund institutions establishedin accordance with article 13 (3) and

(4); however, if a State elects to make a financialcontribution to private educational

institutions, it must do so without discrimination on any of theprohibited grounds.

The obligation of States further includes to respect, protect and fulfil each of the “essential

features” (availability, accessibility, acceptability, adaptability) of the right to education.40

By

way of illustration, a State must respect the availability of education by not closing private

40

Para. 50.


schools; protect the accessibility of education by ensuring that third parties, including parents

and employers, do not stop girls from going to school; fulfil (facilitate) the acceptability of

education by taking positive measures to ensure that education is culturally appropriate for

minorities and indigenous peoples, and of good quality for all; fulfil (provide) the adaptability

of education by designing and providing resources for curricula which reflect the

contemporary needs of students in a changing world; and fulfil (provide) the availability of

education by actively developing a system of schools, including building classrooms,

delivering programmes, providing teaching materials, training teachers and paying them

domestically competitive salaries.41

In relation to article 13 (2) (b)-(d), a State party has an immediate obligation “to take steps”

(art. 2 (1)) towards the realization of secondary, higher and fundamental education for all

those within its jurisdiction. At a minimum, the State party is required to adopt and

implement a national educational strategy which includes the provision of secondary, higher

and fundamental education in accordance with the Covenant. This strategy should include

mechanisms, such as indicators and benchmarks on the right to education, by which progress

can be closely monitored.42

The cost of education ought to be affordable. Educational policies that reduce the costs of

education or increase the expected returns will shift household incentives away from sending

children to work and towards sending them to school.43

Making schools accessible,

improving their quality, and reducing direct schooling costs can all serve to improve

incentives.44

Education may be costly because of inaccessibility. Some children are living in

41

Ibid. 42

Para. 52. 43

Gordon Betcherman, Jean Fares, Amy Luinstra and Robert Prouty, „Child Labour, Education, and

Children‟s Rights‟ in Philip Alston and Mary Robinson (eds), Human Rights and Development

(Oxford University Press, Oxford, 2005), p. 189 44

Ibid.


remote, under-served areas and do not have reasonable access to school.45

Poor quality can be

a major issue that reduces the expected benefits of education and, thus, can be a disincentive

to schooling. Furthermore, schools in many developing regions suffer from problems such as

overcrowding, inadequate sanitation, and under-skilled or apathetic teachers.46

The extent to which a right to education has thus found recognition within a wide variety of

constitutional instruments and traditions serves to highlight the potential importance of the

experience of any country in which the right has been taken seriously in terms of public

advocacy, national constitutional arrangements and international supervision of treaty

undertaking.47

The emphasis on treating education as a right brings two important dimensions

which are all too often downplayed in the context of other approaches to education policy,

namely, they are empowerment and accountability.48

In terms of empowerment, the

recognition of a right to education, and the adoption of an approach to education policy which

accords some prominence to that dimension, serves to emphasize that the individual holder of

the right is entitled to make certain demands, not only upon a Government, but perhaps more

importantly upon the right holder‟s immediate community.49

Despite positive developments in the field of human rights, a lack of political will to devote

needed resources and implement infrastructural change in order to protect and advance

economic, social and cultural rights remains apparent today.50

Within the international

system, and at domestic levels, the eloquent statement made by the United Nations General

Assembly in 1948, that economic, social, cultural, civil and political rights are indivisible and

45

Ibid. 46

Ibid. 47

Philip Alston and Nehal Bhhuta, „Human Rights and Public Goods: Education as a Fundamental

Right in India‟ in Philip Alston and Mary Robinson (eds), Human Rights and Development (Oxford

University Press, Oxford, 2005), pp. 249-250. 48

Ibid., p. 262. 49

Ibid. 5050

Isfahan Merali and Valerie Oosterveld (eds), Giving Meaning to Economic, Social and Cultural

Rights (University of Pennsylvania Press, Philadelphia, 2001), p.1


interrelated, has not yet translated into reality.51

There is therefore still a need to look beyond

the bare words of the Universal Declaration of Human Rights and the International Covenant

on Economic, Social and Cultural Rights to give true meaning to these rights.52

Conclusion

One of the major distinction between economic, social and cultural rights and civil and

political rights is that obligations in relation to the former are limited to steps that can be

taken within „available resources‟, however, no equivalent limitation is mentioned in relation

to the latter.53

Although formal tuition fees have been abolished in many countries,

particularly in Africa since 2000, the associated costs of education, books, uniforms, supplies,

transportation, are still extremely common and prohibitively expensive for many families in

many countries where formal fees have been lifted without an effective re-allocation of

resources.54

Local schools have imposed additional „informal‟ fees to make up for the lost

income and in such cases, the financial burden falls upon children and their families.55

As this paper has shown, international law guarantees the right to education and as regards

higher education, the Universal Declaration of Human Rights makes the same a right

accessible to all on merit. The law however also recognizes other forms of training through

technical institutions and polytechnics. The law contemplates that education ought to be

directed to the full development of the human personality and parents and guardians have the

discretion to choose the kind of education to be given to their children or persons under their

guardianship. The various international instruments and domestic laws recognize the need of

ensuring equality in the realization of the right and as such, prohibitions have been placed

51

Ibid. 52

Ibid. 53

Henry J. Steiner, Philip Alston, Ryan Goodman, International Human Rights in Context: Law,

Politics, Morals (Oxford University Press, Oxford, 1996), p. 295. 54

Ibid., p. 297. 55

Ibid.


against any actions according differential treatment in regard to the realization of the right.

Additionally, education ought to be directed to the development of personality, and the

development of respect for human rights and fundamental freedoms and the principles

enshrined in the United Nations Charter.

In order to ensure the effective realisation of the right to education, the State must consider

all reasonable educational alternatives, this means that possibilities should be explored on

how people can receive education in the language of their choice, rather than the foreign

languages that were instituted during the colonial era.56

The praxis of practicing and

promoting human rights entails entrepreneurship in raising material resources, including

funding, from a whole variety of governmental, inter-governmental, international and

philanthropic sources.57

Protection and promotion of human rights is an enterprise that entails

access to organized networks of support, consumer loyalty, efficient internal management of

mass media and public relations and careful crafting of mandates.58

It therefore follows that

for the effective realization of the right, Governments should call for cooperation with

various stakeholders and organizations to promote the realization of the right among others.

56

Morris KiwindaMbondenyi, International Human Rights and their Enforcement in Africa

(LawAfrica Publishers, Nairobi, 2011), p. 199. 57

UpendraBaxi, The Future of Human Rights Oxford University Press, Oxford, 2002), p. 123. 58

Ibid., p. 125.


References

1. Gordon Betcherman, Jean Fares, Amy Luinstra and Robert Prouty, „Child Labour,

Education, and Children‟s Rights‟ in Philip Alston and Mary Robinson (eds), Human

Rights and Development (Oxford University Press, Oxford, 2005)

2. Henry J. Steiner, Philip Alston, Ryan Goodman, International Human Rights in

Context: Law, Politics, Morals (Oxford University Press, Oxford, 1996)

3. Isfahan Merali and Valerie Oosterveld (eds), Giving Meaning to Economic, Social

and Cultural Rights (University of Pennsylvania Press, Philadelphia, 2001)

4. Morris Kiwinda Mbondenyi, International Human Rights and their Enforcement in

Africa (LawAfrica Publishers, Nairobi, 2011)

5. Philip Alston and Nehal Bhhuta, „Human Rights and Public Goods: Education as a

Fundamental Right in India‟ in Philip Alston and Mary Robinson (eds), Human

Rights and Development (Oxford University Press, Oxford, 2005), pp. 249-250

6. Upendra Baxi, The Future of Human Rights Oxford University Press, Oxford, 2002)

The Right to Education: An Overview by Arnold Ochieng Oginga

Law

Transcript of The Right to Education: An Overview by Arnold Ochieng Oginga