IS “WHEN WE CAN AFFORD IT” GOOD ENOUGH?
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.
JUBILEE LAPTOP PROJECT
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