The High Court has temporarily suspended the new universities and colleges’ education funding model after three organisations challenged it on grounds that it is unconstitutional and has created confusion at institutions of higher learning.
Justice Chacha Mwita directed the Ministry of Education to halt the model, known as Variable Scholarship and Loan Funding (VSLF), pending determination of the petition.
The petitioners — the Kenya Human Rights Commission (KHRC), Elimu Bora Working Group and the Students’ Caucus — argued that implementation of the model has ostensibly transferred the responsibility of providing education from the State to parents, many of whom are struggling to keep their children in school.
Further, the lobbies said there is no clarity about the selection of universities and technical and vocational and training courses, adding that eligible students face prolonged delays due to lack of clear instructions from the Kenya Universities and Colleges Central Placement Services (KUCCPS).
“Conservatory Orders are issued against the respondents, their servants, agents and employees from implementing the new education funding model, pending the hearing and determination of the petition,” Justice Mwita said.
The model was created following the recommendation of the Presidential Working Party on Education Reform.
The lobbies allege that the model was implemented hurriedly without consultation and enabling legislation.
They argue that the Higher Education Loans Board (Helb) and Universities Fund were already statutorily mandated to oversee higher education funding in the country and to follow the maximum differentiated unit cost model, established in the Universities Act.
In the model, the students have been categorised as vulnerable, extremely needy, needy and less needy. The most vulnerable receive 82 percent scholarship and an 18 percent loan, while the less needy get 38 percent scholarship and 55 percent loan, with 7 percent to be contributed by the parent or guardian.
The learners are also expected to apply individually for the loans and scholarships and the applications are considered based on a model that uses a Means Testing Instrument (MTI) to determine the student’s level of financial need.
Previously, government-sponsored students would pay Sh16,000 per year and get a loan of up to Sh60,000 yearly, under the Differentiated Unit Cots established by the Universities Act.
The three lobbies say students now have to part with an average of Sh650,000 per annum without scholarships or bursaries.
“Further, the criteria used to qualify a student for government support is yet to be determined. Knowing which student is vulnerable, very needy, needy and less needy is challenging, yet these are the government’s yardstick in assessing the level of support it will offer students,” the petition stated.
They 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.
'Frustrating brilliant students'
Further, the organisations stated that the new system has frustrated brilliant students who are under 18 from joining university and receiving funding due to their legal status as minors. Before, these students would have easily used their parents’ details to gain access in line with their right to education, Mr Malombe said.
It is also the argument of the petitioners that the directive by President William Ruto that instituted the funding model was an illegality and an attempt to usurp Parliament’s law-making role.
“This court is called upon to urgently intervene in the mater and remedy the illegalities that have been operationalised and will continue to be operationalised,” Mr Malombe added.
The organisations wants the court to declare that government contravened sections 53 and 54 of the Universities Act and therefore, unconstitutional, null and void.
They have named Attorney-General Dorcas Oduor, CS Education Migos Ogamba, Higher Education Loans Board and KUCCPS as respondents in the case.[email protected]
