The International Commission of Jurists (ICJ) underlines the need for the judiciary to step in to enforce the right to education and to improve access to quality education in Kenya. In addition, and in partnership with the East African Centre for Human Rights (EACHRights), the ICJ calls on the Kenyan authorities to adopt effective measures to ensure the effective implementation of public education and regulation of private actors in education, to meet its international legal obligations.
These calls come after a workshop held in Nairobi on 9 September 2022, by the ICJ and EACHRights, which brought together various Kenyan and international organizations advocating for the realization of human rights, including the rights to health, housing, and education.
“Kenya’s Constitution guarantees a range of human rights, including the right to education. While courts have adjudicated a range of cases involving economic, social and cultural rights, especially on housing and healthcare, our local partners have identified a need to consider the option of litigation towards the enforcement of the right to education”, said Thandeka Khoza, ICJ’s Associate Legal Adviser.
Workshop participants raised a variety of concerns and challenges faced in accessing education in Kenya. These include inadequate public schools in certain areas particularly in the informal settlements; lack of access to education for children with disabilities; corruption in public administration; growing concerns regarding the competency-based curriculum (CBC) and the quality of education in Kenya; the poor infrastructure of many schools, whether public or private; and the increased trend towards commercialization of education.
“It is of serious concern that in Kenya the under-regulation of private actors in education is often reported to result in serious harms to learners’ rights. In some instances, children attending private schools have reportedly been sexually assaulted, and in other situations, school infrastructure is unsafe”, said Tim Fish Hodgson, ICJ’s Legal Adviser on ESCR.
“Kenya must take all necessary measures, as a matter of urgency, in line with international and national obligations, to ensure the comprehensive regulation of private involvement in education and access to effective remedies for those whose rights have been abused by private companies operating in the education sector”, Hodgson added.
Experiences both from within Kenya and other countries are important to Kenyan civil society and human rights lawyers in considering various avenues towards the realization of the right to education in Kenya, including strategic litigation.
Thandeka Khoza, ICJ Africa Associate Legal Adviser, e: email@example.com
Mulesa Lumina, ICJ Africa Communications & Legal Officer, e: firstname.lastname@example.org
Participants in the workshop – human rights defenders, lawyers from Kenya, Colombia and South Africa, and academic scholars – discussed the current state of access to education in Kenya, as well as lessons learned through litigating on economic, social and cultural rights in Kenya and other jurisdictions, drawing on international human rights law and standards.
In terms of international law, Kenya must ensure that education is available, accessible, adaptable and acceptable in order comply with its legal obligations under the International Covenant on Economic, Social and Cultural Rights, the Convention on the Rights of the Child and other treaties binding on Kenya, including the African Charter on the Rights and Welfare of the Child and the African Charter on Human and People’s Rights. Article 43(1)(f) of the Kenyan Constitution protects the right to education and Article 2 indicates that “any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution”.
The Abidjan Principles on the human rights obligations of States to provide public education and to regulate private involvement in education provide further clarity to States in respect of their obligation to effectively regulate private actor involvement in education.Web stories