GHAI: A partial, human rights audit of the education system

President William Ruto recently stressed that everyone has the right to basic education. He has also spelt out why the country cannot afford free education at all levels.

Right to education

Article 43 of the Constitution on economic, social and cultural rights simply says, “Every person has the right … (f) to education.” But the constitution is a good deal more complex than that.

Article 53 says, “Every child has the right …(b) to free and compulsory basic education.” And the language used in the constitution echoes the International Covenant on Economic Social and Cultural Rights and the Convention on the Rights of the Child. This can help us understand the Constitution.

Bringing these documents together, the constitution is saying that the state must achieve the “progressive realisation” of the rights under Article 43 (Article 21(2). It also requires the state to give priority to these rights: in allocating resources, it must give priority to achieving the widest possible application of those rights, including to certain vulnerable groups.

And under Article 20(5) it is for the state to show that resources were not available, if that is its response to claims that it is not fulfilling its responsibilities.  

The constitution recognises that Article 43 rights cannot be achieved overnight ¾ hence, “progressive realisation”. But this does not apply to Article 53. So, the right to free and compulsory basic education is not to be achieved progressively, but a right to be fulfilled now.

It is not useful to debate exactly what “basic education” means.  Even if it does not cover the whole of the schooling phase of life, there is a clear obligation to make higher levels of education as available as possible and to continue this process progressively. However, our government seems to view all schooling as “basic” - and on that basis is most clearly violating the Constitution.

Kenya is not fulfilling the right to “free” basic education, nor currently making things progressively better in education generally. Indeed, in some respects, things have been getting worse. The UN committee on socioeconomic rights does recognise that sometimes rolling back rights to some extent may be unavoidable, but governments must strive to avoid this.

Financial difficulties are real, and the need to repay past loans, not all of them well justified or appropriately used, is a significant constraint on current spending.

Is the regression in education rights the result of international issues over which we have no control or local ones such as poor planning, mismanagement, incompetence and uncontrolled corruption? Human rights can be violated not only by deliberate wrongdoing but by factors such as these.

We must ask questions like: are we spending public money on other things that ought to be spent on education? The extravagance in government on some matters is deeply depressing - indeed, a slap in the face to those children and their families who face heavy, or even unpayable, expenses for education.

Going to court may not be an appropriate approach when there is such a complicated situation that affects a whole generation of young people. A court needs to be able to make some fairly precise order - not simply “put your governmental house in order.”

Going to court is not the only, or even main, approach to accountability for rights violations. The Kenya National Commission on Human Rights pointed to a large number of issues in its State of Human Rights in Kenya report for December 2024 to December 2025. Such a report, by a body set up by the constitution, should be taken seriously, and that includes debated in Parliament.

Human rights in education

Human rights is, of course, not just a question of being physically in school. Human rights, including in international agreements that Kenya has signed, include some ideas about what education ought to be about, including learning about human rights.

But we don’t need to a treaty to tell us that the system is not performing if half the children due to move to junior secondary school cannot read or deal with numbers at the level appropriate for children three years behind them. This Usawa Agenda has recently told us ¾ not for the first time.

Arguably the most important constitutional right is in Article 27:  to equality (which includes redressing existing inequalities). The hearing children who found their KCSE exam results did not include their results in the Kenya Sign Language exam were discriminated against. Maybe the expectations and marking schemes should be different for hearing children. But presumably they were allowed to do this by their schools. And it does not make sense for only children with hearing problems to be able to learn the subject. The more people who know KSL the better - so the hearing and the deaf can communicate with each other.

There have been many comments about a system that dooms most school leavers to exam results, suggesting that they really have not learned much. About 432,000 scored D- (minus), D (plain) or D+ (plus). Not much less than twice the number who scored C (plain) or C- (minus), or those who scored enough to get to university.

I suspect one element in the marking system is the desire to have a fixed entry level for university - and not to depart too much annually from a number of students that universities can handle. But also, the appearance is of a system that fails the children, a system that simply does not fit Kenyan realities. Let’s hope that when the competency-based education generation finish school, they will leave with some results that indicate what they do know ¾  not what they don’t.

Incidentally, in England in 2024, 76 per cent of students obtained C (plain) or above in A-levels (this is across subjects; they are not aggregated as in the KSCE).

In Kenya, children who apparently find school learning hard are condemned to schools that offer fewer facilities for learning, and fewer to make learning enjoyable, but are compelled by law to go. A 2022 report by Usawa Agenda “Is our Secondary School System Inequitable by Design?” makes this clear. It is a system both irrational and fundamentally unconstitutional.

The dependence on boarding schools surely also makes education more expensive for state and families than day schools. 

The system and society

The highly stratified school system strikes an English person as rather familiar (I claim no familiarity with the Scottish or Northern Irish systems). At the top are schools modelled on what are called in England “public schools” - actually elite private schools, often with centuries of history, great facilities, and attendance at which gives students a rocket-propelled start in life.

When I was at school all of us in the state system took the 11+ exam, which determined which school we then went to. A child who passed (which depended on how many places were available as well as their competence) went to a grammar school.

The rest to a secondary modern school, where facilities were less good, and generally less money was spent on their education. And it was assumed they would be unlikely to get to university. An important difference from Kenya was that children had to go to schools close to where they lived.

That system (or systems) were closely linked to, and creative of, the class system. Now about 90 per cent of British children attend “comprehensive” state secondary schools that do not select on so[called “merit”.

While one could understand reluctance to reduce the quality offered by Kenyan, colonial, elite schools, the huge gap between what a child experiences in those schools and what many suffer in less prestigious institutions is clearly contrary to the vision of the constitution. The Kenyan system is surely creating a class system, and thus a society fundamentally departing from the vision of the constitution and Article 27.