Government must secure the right to equal access to quality basic education

The education sector has been a focus of much attention recently.

First there has been the Ministry of Education presenting its plans for significant changes in the education curriculum: From what is called the 8-4-4 system to the new 2-6-3-3-3 system.

And, during the elections of August and October, the media – both social and mainstream — were awash with photos of schools being used as polling stations, which demonstrated the dilapidated state of many of our public schools.

Underlying the policy shift, the anxiety and uncertainties of the new changes in the curriculum, is the not much discussed topic of the state of public education. The new curriculum is applaudable as its focus is on skill-based approaches in teaching and the learners’ needs and interests. Another positive change is the distribution of textbooks for free to children in public schools. However, more must be done by the government to ensure realisation of the right to quality basic education for all, especially marginalised communities and those in informal settlements.

The earlier introduction of free and compulsory basic education led to an increase in school enrolment. This has largely been a success. However, certain segments of society are yet to benefit from it fully due to chronic congestion, shortage of teachers, challenges in geographical accessibility to schools amongst other challenges. There are schools without proper buildings, toilets, desks, textbooks, and teaching materials, including blackboards and chalk. Many lack the money needed to run, and provide suitable conditions for learning. We are seeing serious discrepancies — let us be frank and say discrimination — between the situation of boys and girls, between the residents of informal settlements and others, and between some parts of the country and others.

The number of students is not the same as quality of education. There is a great deal of evidence that students emerging from our schools, public schools especially, simply have not acquired the knowledge and skills they need. They do not have the skills employers want, nor those that enable them to lead satisfying lives or to develop curiosity about the world, or the means to satisfy that curiosity. Some research shows most expansion in pupil enrolment since 2002 has been in private not public schools — because parents lack faith in the latter.

Among the reasons are the deterioration in the working conditions of teachers — leading to the frequent strikes by Knut. Furthermore, the Teachers Service Commission in 2016 indicated the teacher deficit was 92,000 and is estimated to rise to 116,513 by 2019.



International and Kenyan laws require the state to take steps to ensure realisation of the right to education. Article 43( 1 )(f) of the Constitution guarantees this right to everyone. Article 53 and the Children’s Act say the government must undertake all necessary steps to make free basic — and compulsory — education available to every child. The African Charters on the Welfare and Rights of the Child, and on Human and Peoples Rights, the Convention on the Rights of the Child and the International Covenant on Economic, Social and Cultural Rights all recognise the rights of the child to education. Under Article 2( 5 ) and 2( 6 ) of the Constitution, these are all part of Kenyan law.

The Basic Education Act of 2013 says the state must ensure the marginalised, the vulnerable and disadvantaged children are not discriminated against in provision of education. The government also has to provide human resources, including adequate teaching and non-teaching staff, infrastructure necessary for schools, including learning and teaching equipment and appropriate financial resources, and ensure provision of quality basic education.

The Ministry of Education in its policies notes the difficulties faced by those in arid and semi-arid land areas. It is on this basis that the National Council for Nomadic Education in Kenya was established with the core function of initiating development of policies on nomadic education and to ensure geographic access to education by nomadic communities.

Vision 2030 and the numerous policies by the Ministry of Education, on Education and Training, Science Technology and Innovation, and Nomadic Education, try to address the challenges faced in the education sector. Despite all these, there has not really been enough positive changes in the education sector.


Under the Constitution and international law, most economic, social and cultural rights are to be achieved only “progressively”, which recognises financial constraints. But under the Constitution, “free and compulsory basic education” is not something to be achieved only progressively (Article 53 and Article 20( 5 ) — in other words, it should be achieved now. However, even if the government does give the excuse of lack of finances for failure to fulfil these rights, it must prove that the resources are not available. In allocating resources, it must give priority to ensuring the widest possible enjoyment of the right, including taking account of the vulnerability of particular groups or individuals: Special attention must be paid, and resources devoted, to those most in need.

The United Nations Committee on Economic, Social and Cultural Rights, which monitors states’ performance under the Covenant, has explained the obligation of states (in its General Comments 1 and 13 ). The obligations include equality and non-discrimination in the way the state implements rights. Specifically in connection with the right to education, the state must ensure enough functioning educational institutions — including buildings, sanitation, safe drinking water, trained teachers and teaching materials. Secondly, those educational institutions must be accessible to everyone — this includes physical accessibility, affordability and no discrimination. Third, education must be acceptable, including culturally, and, finally, it must be adaptable to the needs of students and to changes in society.



The Vision 2030 policy on education (equipping “citizens with understanding and knowledge that enables them to make informed choices about their lives and those facing Kenyan society”) and the laptop project are positive steps towards enhancing access to quality education. However, limited access to electricity in rural areas, power disruptions, expensive internet, high costs associated with information and communications technology — such as computers and other equipment — buildings and support costs create serious challenges. Many teachers also have inadequate capacity to use ICT in teaching, maintain the equipment, and to monitor utilization in schools.

The laptop for primary schools project was intended to be a tool to transform education and address issues of access, quality, relevance and equity. Technology would ensure education was accessible, and reduce costs such as for textbooks, teachers, and transport, and enhance geographic accessibility. However, implementation has not given priority to the greatest need. Many children, especially in marginalised areas, are yet to be reached. Implementing it in an equitable manner, giving priority to those who have been under-served, would go a long way towards making the education system much fairer, giving a chance to pupils in marginalised areas and informal settlements to learn at the same pace as others in better-resourced areas.

In reality, at present, we can see great inequalities with some pupils having laptops, and others lacking even chairs, desks and blackboards — sometimes school roofs.



It is often said that education is the fastest route up the social ladder and an equaliser. Access to basic education should be seen as the primary driver of transformation, especially for the vulnerable groups, who particularly need, and deserve, constitutional protection. The inclusion of economic, social and cultural rights in the Constitution, including the right to education, is part of the transformative nature of the Constitution. It seeks to address inequalities through equitable distribution of resources, with special consideration being given to historically marginalised communities. Instead, if government does not take urgent steps to address the challenges facing public schools, education will be the driver of inequality.

Rotich is an associate advocate at MMC Africa Law


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