Progressive Realization of the Right to Education and the New Funding Model: Oil and Water

Despite its importance, there has been consistent regression in efforts aimed at achieving this essential human rights. This is contrary to the Constitutional promotion and protection of the right to education as per article 43(1)(f) of the Constitution of Kenya, 2010. The term progressive realization in this context refers to the duty borne by government to always put measures in place to ensure that right to education is realized in the full time. This is based on the fact that right to education is capital intensive and as such cannot be realized at once.

Accessibility of the right to education refers to both physical and economic aspects. Physically, it means that learners need not to go long distances for them to enjoy their right to education. Economically, it makes reference to the need to ensure that everyone in the society regardless of their social status can afford school fees. Additionally, right to education is inaccessible if learning materials are unavailable. To this end therefore and in so far as higher education learning is concerned, government ought to do everything within its prowess to ensure that school fees is affordable and that students do not struggle to meet accommodation fees and to achieve basic maintenance requirements while learning.

As earlier mentioned herein, the state is tasked with the progressive realization of this right. Mere allegations by the state that it cannot progressively realize the right to education cannot suffice. Per article 20(5) of the Constitution of Kenya, 2010, in the event the state claims that it does not have the resources to implement this right, it has to show that the resources are unavailable. Further, it is the duty of the state to give priority to the widest possible enjoyment of this right while allocating resources.

The new funding model erodes the efforts made towards fully realizing the right to education in that it places a huge burden on parents, guardians and learners in helping in the realization of the right to education. Essentially, the state is handing over its duty of provision of education by avoiding financial responsibility. Further, a contention that the set criteria used in placement of students into various bands is misguided cannot be further from the truth. This is because the said the factors are static and do not put into consideration the constant societal and economic factors. For instance, while undertaking primary and secondary education, students may be capable to afford school fees in high end private institutions. This, however, may drastically change as a result of unforeseen circumstances such as retrenchment of the sole bread winner.?

Further, the new model fails to look into the number of dependents before deciding the specific band that students ought to be placed in. Clearly put and in most cases, the earning power of individuals increases with age up until such a point where it reaches the climax. From the said point onwards, it diminishes. The new funding model assumes that merely because an individual has the capacity of supporting a single kid as per the individual’s income, the said individual can still support five or more kids without any supporting from the government. The net effect of such a system is exacting a lot of pressure on the said individuals with the possibility of pushing some individuals to the edge.

It is ironical that finances have never lacked for unnecessary foreign trips yet fundamental human rights such as right to education are often overlooked in budgetary allocations. It begs the question what matters most to our elected leaders. We have often been sold dreams of how education is the greatest equalizer. The new funding model, however, has the intent and purpose of dealing a huge blow to equity and equality in the education sector. The resultant effect of such a model is that classism will for remain glorified in the foreseeable future. Simply put, education will henceforth only be a preserve of the rich.

Weighing in on this topic, some people especially in the various social medias have argued that the duty of the government in the education sector is only limited to provision of basic education. This think piece maintains that that is a simplistic view of a complex situation. The truth of the matter is that such interpretation is a selective interpretation of the of the constitution which is against the spirit of the Constitution. As per article 20 as read to together with article 260 of the Constitution of Kenya, 2010 the Constitution ought to be read holistically and in a manner that favors the enjoyment of human rights to the maximum extent possible. As had been earlier stated herein, everyone is entitled to the right to education. It is noteworthy that not everyone due to factors such as age can be subjected to basic education. In any event, had the legislators intended that only basic education is the duty of the government, nothing would have been easier than to expressly state so.

What was so wrong with the old funding model that it had to be scrapped in its entirety? What is the place of public participation in this process if not a mere cosmetic venture? In conclusion, the state needs to relook the provisions of the new funding model to make it more inclusive. It should not be lost on the state as well that the it bears the duty of progressively realizing the right to education as opposed to watering down the gains made.