The Constitution, anchored in the principle of non-discrimination, guarantees every individual the space to enjoy their rights and, where necessary, to demand them.
Dear Wakili,
My child has cerebral palsy and three schools in our area have refused to enroll her, claiming they lack facilities. Does the Constitution guarantee my daughter's right to education regardless of her disability? Are there legal steps I can take against these three schools?
Dear Worried Parent,
A nation committed to progress must safeguard the future of its people, especially its children. At the heart of this responsibility lies the right to quality and affordable education—a right that should never be compromised, regardless of the challenges families face.
The Kenyan Constitution, anchored in the principle of non-discrimination, guarantees every individual the space to enjoy their rights and, where necessary, to demand them.
Article 27 affirms that all persons are equal before the law, entitled and tied to both its protections and obligations. This equality applies to everyone—whether their health condition includes autism, cerebral palsy, epilepsy, hydrocephalus or any other; whether male, female, adult, or child. Clause 5 of Article 27 explicitly prohibits discrimination based on health status.
In addition, Articles 43, 53, and 56 collectively establish that every child has the right to education, recognising that marginalisation or health conditions must never be barriers. If health conditions or any other difficult-to-address condition so persists, then the state is obligated to take affirmative action to remedy the inequality.
When schools deny children access to education, the question must be asked, why? Section 45 of the Basic Education Act directs the Cabinet Secretary for Education to establish and regulate special schools for learners with special needs. This duty reflects Article 53(2), which requires all caregivers, organisations, and State or non-State agencies to prioritise the best interests of the child, in all child matters.
The Persons with Disabilities Act reinforces this commitment, enshrining equality, respect for difference, and acceptance of disability as part of human diversity. Section 11 guarantees every child with a disability the right to inclusive, quality education on an equal basis with others. Establishing or strengthening schools to meet these needs is therefore a constitutional obligation of government—one that cannot be delegated to communities or the private sector.
Article 10 further provides a framework of national values cited as patriotism, human dignity, equity, social justice, inclusiveness, human rights, non-discrimination, and protection of the marginalised. These values compel us to ask whether denying a child with disabilities access to education is not, in fact, an injustice. When the education system fails to uphold these rights, it exposes a deeper inability to meet the needs of vulnerable learners, which then raises a mandate accountability query. Where schools claim it is impossible to accommodate such children, remedies exist.
Education is a government function, and Article 22 of the Constitution allows individuals or groups to petition the courts when the Bill of Rights is infringed. Such a petition would rest on four key facts: Public schools are a government responsibility and must provide facilities for all learners.
Where special needs exist, the government must ensure special schools are available and affordable. Teachers and principals act as agents of the Ministry of Education. Ultimate responsibility lies with the State. Policies must be broad enough to include and cater to children with conditions such as cerebral palsy.
The case of Stephen Ndoria vs Minister for Education & 2 others (Petition 464 of 2012) [2015] KEHC 3437 illustrates how courts have addressed discrimination in education. Such petitions help citizens to appreciate how to measure the progressive realisation of fundamental rights and foster accountability across government agencies tasked with inclusive education.
Finally, the Constitution in Article 2(5) and (6) binds Kenya to international treaties it has ratified and domesticated. In Ndoria, the court reflected on Article 2(1) of the International Covenant on Economic, Social and Cultural Rights and Article 28 of the Convention on the Rights of the Child. These provisions highlight the supremacy of the government’s obligations, which cannot be obscured by appeals to “progressive realisation.”
As the petitioner rightly argued, progressive realisation does not excuse delay. The State must act expeditiously and effectively to ensure that children in marginalised areas enjoy their right to education.
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