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Right to basic education: Reformers’ dreams unfulfilled even with 2010 Constitution
A girl does her homework.
In 2001, Parliament enacted the Children’s Act, which, among other provisions, introduced free basic and compulsory education and placed the responsibility for its implementation on both the government and parents.
Arguably, this was a major leap for Kenya in its long quest to make education accessible to all children, a goal pursued relentlessly since independence in 1963 but with mixed results. It also signalled the country’s commitment to fulfilling its obligations under global treaties such as the 1990 World Declaration on Education for All.
Based on these commitments, the National Rainbow Coalition (Narc) that came to power in 2002 introduced free primary education in 2003 and subsidised secondary education in 2009, which together, expanded enrolment and retention rates in schools.
However, it was not until the enactment of Constitution 2010 that the education sector recorded a major breakthrough. The Constitution enshrined education as a fundamental and enforceable human right, obligating the government to establish mechanisms for its realisation. Previously, education was promoted through legislation such as the Education Act (1968) and the Children Act (2001), among others, but these laws lacked constitutional imperatives and authority.
Not only did the 2010 Constitution entrench education as a human right but also broadened the liberties and guarantees associated with it. First, Article, 43 (1) (f) established that “every person has the right to education.”
Learning opportunities
Second, Article 53 (1) (b) stipulated that “every child has the right to free and compulsory basic education.” Free and compulsory basic education is globally defined as 12 years of schooling, spanning primary and secondary levels.
Furthermore, articles 54, 55 and 56 provide for the delivery of learning opportunities for the marginalised groups such as people with disabilities, youth and minorities. Concomitantly, the Constitution, under the Fourth Schedule allocates responsibilities for implementation of education programmes, inter alia, placing early childhood education and youth polytechnics under the county governments.
These provisions had far-reaching implications for the education sector. They sparked major changes in law and policy. Foremost, the Basic Education Act (No 14 of 2013) was enacted to replace the Education Act of 1968, that had largely governed the sector for decades but contained major defects such as allowing expulsion of learners from schools, thereby denying them their right to education.
Several other laws were formulated to align with the Constitution. These were: the Kenya Institute of Curriculum Development (KICD) Act; the Teachers Service Commission (TSC) Act; the Universities Act, Kenya National Examinations Council (KNEC) Act; Technical and Vocational Education and Training (TVET) Act; and Science, Technology and Innovation Act. Today, 15 years after the proclamation of the Constitution and the applicable laws on education, the country can look back and count notable achievements, as many progressive gains have been made in the education sector.
In 2016, the government introduced the competency-based curriculum, since renamed competency-based education, with the broad objective of equipping learners with practical skills for the 21st century, fostering critical thinking and creativity and promoting digital literacy and nurturing holistic learning.
Significantly, the Constitution established the TSC as an independent institution that insulated it from political and administrative machinations witnessed in the past. Since, TSC has grown in leaps and bounds, enjoying autonomy to make and implement decisions, devolving functions and broadening scope of its operations.
The Universities Act (2012) consolidated all laws on higher education, brought universities under single statute and established several entities to regulate and coordinate funding for students and the institutions. This was a major departure from the past, where universities were established under separate laws, largely imitations, but which created confusion and disharmony in the management of the institutions.
Another major achievement was devolving early childhood education and youth polytechnics to the counties. To date, the country records significant growth in ECD enrolments and in particular, improved quality arising from better coordination and focus on a sector erstwhile left on the fringe.
For example, the number of ECD centres increased from 39,758 in 2012, before the transition to counties, to 47,760 in 2024 under the devolved governments. Similarly, enrolments rose from 2.4 million in 2012 to 2.9 million in 2024. Most ECD centres currently have trained and properly paid teachers, the centres are well equipped and learners offered meals to support their physical and mental development.
Also, several technical and vocational training centres have been established in the constituencies to provide skills for young people.
However, challenges abound and the transformations envisioned have not been realised in entirety.
First, the competency-based education has moved in fits and starts. It is muddled with policy confusion, political intrusion and cash shortage. Structurally, the system was jolted when the Kenya Kwanza administration decreed that junior secondary school would be domiciled within primary schools, creating serious administrative and professional challenges. Poor training, inadequate staffing and resourcing combined to jeopardise the quality of education. Confusion obtains around transition from junior to secondary school given lack of clarity of career and school choices.
Lackadaisical approach
But the most troubling development is the government’s lackadaisical approach to implementing free primary and subsidised secondary education, both of which are foundational to realising the right to universal schooling. On paper, the government promises flawless implementation of free schooling as required by the Constitution. In reality, however, the programme is mismanaged and grossly underfunded, leaving schools trapped in perpetual debt.
A few weeks ago, Treasury Cabinet Secretary John Mbadi let the cat out of the bag when he declared that the government could no longer fund free schooling, stoking controversy, forcing President William Ruto to step in to calm a restive nation. Yet, beyond the podium assurances, no financial commitments followed – leaving schools at crossroads.
To be sure, the schools reopened this week without receiving any capitation grants from the government – and there is no guarantee that the funding will be disbursed any time soon. At present, secondary schools are owed Sh65 billion by the government in unremitted funding.
The harsh reality is that the government has yet to devise a practical and sustainable plan for implementing free and compulsory basic education, leaving everything to chance.
The establishment of TSC as an independent and constitutional entity was intended to give it autonomy and shield it from political interferences, but in reality, it remains an appendage of the Education Ministry that influences its critical policies and decisions.
Far from fostering stability, the teaching profession has repeatedly been thrown into turmoil, tumbling from one case of industrial unrest to another, largely driven by persistent pay disputes and unmet demands for better working conditions. These disruptions not only strain relations between teachers and the government but also disrupt learning, leaving learners and parents to bear the brunt of the conflict.
At the other level, universities have faced major impediments arising from policy flaws and poor planning. The Universities Act (2012) created independent entities to manage university funding – Higher Education Loans Board and University Funding – but their effectiveness has been undermined by poor funding and politicised decision-making.
Just as at the primary and secondary level, universities are reopening for the new academic year next week but the government is yet to send capitation for students’ loans bursaries and the tuition fees to the institutions. Cumulatively, the universities have an accumulated debt burden of Sh85 billion but there are no indications when the bills will be settled.
Although the universities have faced perpetual financial crisis since the 1990s, the situation worsened from 2017 and shows no signs of resolution. Certainly not under the current administration that thrives on deception and self-glorification.
Whereas the Universities Act established the Commission for University Education (CUE) with the mandate to regulate universities, accredit institutions and programmes, and advise on the establishment of new institutions, the body lacks effective enforcement powers.
New universities
Consequently, the creation of new universities continues haphazardly at the whims of the political class, fuelling unplanned expansion, proliferation of ethnically based institutions, acute shortages of staff and facilities, financial shortfalls, programmes duplication and weak governance structures - all undermining the quality of higher education.
For ECD, the counties take credit for expanding the institutions and enrollment but challenges persist in the quality of teachers and their remuneration, teaching and learning resources and sustainability of programmes.
Equally, although the number of technical and vocational training centres has increased, they lack adequately trained teachers, sufficient equipment, and adequate funding.
In all, the constitutional reforms opened a new chapter, broadened horizons and spurred major transformations that culminated in notable gains in the education sector.
Nevertheless, many of the reformers’ dreams remain unfulfilled. Old challenges persist, while new ones continue to emerge, creating a complex landscape that requires strong political will and a firm commitment to the spirit of constitutionalism.
As we mark 15 years of the Constitution, education stakeholders, notably, the Education ministry, civil society, faith-based organisations and the private sector, must renew their commitments and actualise the reforms envisioned for the sector.
-David Aduda is a Consulting Editor and Education Expert. [email protected]
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