opinionBy Jill Cottrell Ghai
Joseph Kariuki's valuable and well-presented piece "One million Kenyan children still out of school - Report" in the Star of April 11 ends with a section called "Challenges facing Free Primary Education", which includes this statement: "The Free Primary Education in Kenya is not constitutionally protected." I tracked this down to a website called KSCE-Online, and the particular section to http://www.kcse-online.info/devolution/free_primary_education.html. This seems to have been produced soon after FPE was introduced in 2003, and has not been updated.
I am not writing to suggest that Star journalists should be careful about their sources (especially internet ones for which there is often little quality control). My purpose is to explain why the statement about the Constitution is wrong.
Article 53 of the Constitution (on the rights of children) shows that clearly: "53. (1) Every child has the right - ... (b) to free and compulsory basic education". And Article 43 (on socio-economic rights generally) says "Every person has the right to education".
Article 2(6) makes international treaties that Kenya has accepted "part of the law of Kenya." Kenya is a party to both the Convention on the Rights of the Child, and the International Covenant on Economic Social and Cultural Rights, which commits the country to this: "Primary education shall be compulsory and available free to all"
Kenya agreed to this in 1972, and by doing so also agreed: "... within two years, to work out and adopt a detailed plan of action for the progressive implementation, within a reasonable number of years, to be fixed in the plan, of the principle of compulsory education free of charge for all". "Free primary education" began in 2003, surely a quite unreasonable number of years later, but, as the Star article pointed out even by 2009 primary enrolment had reached only 83%.
So every Kenyan child has a right - now - to free, compulsory, basic education. It is an obligation that can if necessary be enforced through the courts. Basic education, says UNICEF, "includes literacy, numeracy and life skills". The Constitution makes everyone, not just the government, responsible for respecting rights. No-one - not even parents - can stand in the way of a child getting that education. And the State must respect, and also promote and fulfil the right: it must do what is necessary to encourage that education, and if necessary itself provide it.
The international treaty makers, and international human rights bodies, have given a lot of thought to what that education should be like. For example the socio-economic rights treaty says, "education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms ... "
And that education should be not only available and accessible, but acceptable - in terms of quality, for example - and adaptable to the lifestyles, cultures and needs of students.
It's worth remembering a few other things that the Kenya Constitution says. First of all, everyone is equal, and this means the "full and equal enjoyment of all rights" (Article 27). That child in Korogosho has the same right as the child in Muthaiga to be educated. Or as the African Committee of Experts on the Rights and Welfare of the Child said in 2001, Nubian children in Kenya have as much right to education as other children.
And more: "(b) in allocating resources, the State shall give priority to ensuring the widest possible enjoyment of the right or fundamental freedom having regard to prevailing circumstances, including the vulnerability of particular groups or individuals." (Article 20). The widest possible. Doesn't that mean that if girls in Wajir can't go to school at all, can it be justified to spend public money on laptops for children who are already in a sense privileged because they are in school at all. And the "child's best interests" are of paramount importance - the child's interests must come first.
The UN Committee on the Rights of the Child, commenting on Kenya's report in 2007 said the government should "Undertake additional efforts to ensure access to informal education to vulnerable groups, including in particular pastoralist and hunter-gatherer children, as well as street children, orphans, children with disabilities, child domestic workers, children living in conflict risk areas and refugee camps by, for example, introducing mobile schools, evening classes and eliminating indirect costs of school education".
Under the Constitution it is no excuse to say there was not money enough: this is an immediate obligation. For secondary education things are different: this is an obligation to be achieved progressively. But even here it is for the state to show that it could not afford to provide, not for the person claiming to show that it could (Article 20).