Enforcement of the Right to Equal Access to Quality Basic Education

The state of public education

The introduction of free and compulsory basic education, led to an increase in school enrolment which 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 others. There are schools without proper infrastructure, desks, textbooks, and teaching materials including blackboards and chalk. Many lack the financial resources needed to run, and provide suitable conditions for learning.

Over the years there has been a deterioration in the working conditions of teachers —leading to the frequent strikes by the teachers’ union. Furthermore, the Teachers Service Commission in the year 2016 indicated that the teacher deficit was 92,000 and is estimated to rise to 116,513 by 2019.

Rights, laws and policies

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 Act states that 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 form part of Kenyan law.

The Basic Education Act of 2013 requires the state to ensure that marginalized, 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 ensure geographic access to education by nomadic communities.

The question of availability of resources

Under the Constitution and international law most economic, social and cultural rights are to be achieved only “progressively” which recognises financial constraints. Under the Constitution “free and compulsory basic education” is not to be achieved only progressively (Article 53 and Article 20(5))—in other words, it is a right to be achieved immediately. 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 obligations of the state include equality and non-discrimination in implementation of its policies and to ensure availability of functioning educational institutions —including buildings, sanitation, safe drinking water, trained teachers and teaching materials. The educational institutions must be geographically accessible to everyone and affordable. Lastly, it must be culturally acceptable and adapt to the changing needs society. Conclusion

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 Con-stitution, 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.