The government has defended the new higher education funding model, arguing that the previous system had become ineffective over failure to consider the cost of postgraduate courses and largely generalised all universities without addressing the unique challenges face by each university.
Submitting before High Court judge Chacha Mwita on Wednesday, Attorney General Dorcas Oduor said the inefficiencies and challenges necessitated the formulation of a new funding model being the Variable Scholarship and Loan Funding Model (or New Higher Education Funding Model).
According to the AG, the new model addressed challenges experienced by extremely vulnerable and needy students who had been greatly disadvantaged by being denied funding at the expense of students whose parents or guardians could afford to pay for the education.
“Consequently, the 1st and 2nd Respondent (CS Education and AG) cannot be faulted for establishing the Variable Scholarship and Loan Funding Model, which essentially seeks to ensure that all students especially those that come from extremely vulnerable and needy backgrounds attain their right to education and hopefully attain their rich and great potentials through the necessary government funding,” she said.
Kenya Human Rights Commission (KHRC), Elimu Bora Working Group and the Students’ Caucus challenged the new model that it has transferred the responsibility of providing education from the state to the parents, many of whom are struggling to keep their children in school.
Further, the lobbies said there is also no clarity about the selecting universities and technical and vocational and training courses and eligible students face prolonged delays due to lack of clear instructions from Kenya Universities and Colleges Central Placement Services (KUCCPS).
But the government said apart from promoting and preserving the right to education, the new model was meant to ensure that sustainability in financing tertiary education was achieved by for example ensuring avoidance of uniformity in automatic government funding for all students placed by KUCCPS.
The AG said this would be achieved without the same being curtailed by a uniform and unilateral system of funding that entitled all students to funding including those that were privileged to have their education comprehensively paid for by their parents or guardians.
The Ministry of Education submitted that the model does not discriminate against certain classes of students or harm equal treatment of students in their quest for education.
The Higher Education Loans Board (Helb) and The Trustees of Universities Fund Kenya also defended the new system arguing that public participation was conducted before the government came up with New Funding Model (NFM).
On the issue of minors failing to access scholarships, the court heard that a cabinet memo was issued directing that minors be granted access to both scholarships and loans to fund their education, a directive that has since been effected.
Before the model was rolled out, the presidential working party on education reforms conducted analysis of the education sector and collected data from the public including Kenyans in the diaspora and took views in town hall meeting at county levels, the government said.
The court heard that NFM aligns with the constitutional and statutory framework governing university funding.
“The model enhances effectiveness of the Universities Fund by ensuring that funds are allocated based on differentiated unit cost model, which is designed to promote equity and transparency in higher education funding,” said the AG.
The lobbies argued that the criteria used to qualify a student for government support is yet to be determined and knowing which student is vulnerable, very needy, and needy and less needy is challenging, yet these were the government’s yardstick in assessing the level of support it will offer students.
The organisations further said that fresh students are encountering challenges with registration fees, accommodation, catering, scholarship materials and medical security during the reporting and registration phase due to lack of implementable guidelines.
The lobbies argue that the model is unconstitutional as it violates various tenets of the constitution including breach of fundamental rights and freedoms, had failed public interest test, and failed to meet legitimate expectation of students joining universities and institutions of higher education.
“The respondents have accordingly acted illegally and ultra vires in the implementation of the funding model to the detriment of hundreds of thousands of universities and TVET students and their families,” Mr Davis Malombe said in affidavit.
