Government policy of funding public secondary schools to the exclusion of private ones is not discriminatory

Gabriel Nyabola v Attorney General & 2 others

Petition No 72 of 2012

High Court of Kenya at Nairobi

 

Brief Facts

The Petitioner brought the suit challenging the Government policy of funding public secondary schools to the exclusion of private ones. He argued that the policy was discriminatory and a violation of the Constitution, the Children Act and various international instruments to which Kenya was a party; and that the right to basic education included secondary education which ought to have been enjoyed by every Kenyan child, irrespective of whether he or she attended public or private secondary school.

Issues:

        I.            What was the nature and extent of the right to education and what obligations did it place on the State?

      II.            What was the meaning of “basic education” in the context of the right to free and compulsory basic education?

    III.            What did progressive realisation of the right to education entail?

  IV.            Whether there was a contradiction in the Basic Education Act, 2013 on account of the fact that section 28(1) thereof provided for the right of every child to free and compulsory basic education whereas section 29(1) of the same Act made a provision for free tuition in public schools only

    V.            What did the principle of equality entail?

  VI.            Whether the Government’s policy confining funding and in kind support only to public secondary schools was discriminatory

Constitutional law- fundamental rights and freedoms- right to education- right to free and compulsory basic education- the nature and extent of the right to education- what obligation did the right to education place on the State?- meaning of basic education- Constitution of Kenya, 2010 articles  21(1), 43(1) (f) & 53(1)(b); Basic Education Act, 2013, sections 2 & 28

Constitutional Law –fundamental rights and freedoms – socio-economic rights – progressive realisation of socio-economic rights - right to education – claim that the State ought to ensure that the right to free basic education is enjoyed by students in both public and private secondary schools- what did progressive realisation of the right to education entail?- Constitution of Kenya, 2010, articles 21 (2) & 43 (1) (f)

Constitutional law- fundamental rights and freedoms- right to equality and freedom from discrimination- what did the principle of equality entail?- where the Government had a policy for the funding of public secondary schools- whether that policy was discriminatory of students in private schools- Constitution of Kenya, 2010, article 27

Statutes- interpretation of statutes- contradictory provisions- Basic Education Act, 2013- whether section 29(1) of the Basic Education Act, 2013 that made a provision for free tuition in public schools only contradicted section 28(1)of the same Act which provided for the right of every child to free and compulsory basic education- Basic Education Act, 2013, sections 28 (1) & 29 (1)

Held:

1.             The right to education was one of the new generation of fundamental rights protected under article 43(1) (f) the Constitution. Under the Universal Declaration of Human Rights and the International Covenant on Economic Social and Cultural Rights (ICESR), the right was recognised as having been directed to the full development of the human personality and the sense of its dignity. The Universal Declaration on Human Rights embraced education as a basic human right. Those instruments constituted part of the law of Kenya by virtue of article 2(6) of the Constitution.

2.             The right to education, like all human rights, imposed on States the obligations to respect, protect and fulfill. Article 21(1) of the Constitution enshrined those duties. The obligation to respect required States to avoid measures that hindered or prevented the enjoyment of the right to education. The obligation to fulfill incorporated both an obligation to facilitate and an obligation to provide. The obligation to protect required States to take measures that prevented third parties from interfering with the enjoyment of the right to education. The obligation to fulfill or facilitate required States to take positive measures that enabled and assisted individuals and communities to enjoy the right to education.

3.      An analysis of the provisions of the Constitution, the Children Act, Basic Education Act and the international law imposed on the State an obligation to provide free and compulsory basic education. Although the term “basic education” had not been defined in the Constitution or the Children Act, various international instruments gave an indication as to its meaning.

   

 4. The Basic Education Act, 2013 did not make a distinction between primary and secondary education. Section 2 of the Act defined “basic education” as the educational programmes offered and imparted to a person in an institution of basic education, including adult basic education and education offered in pre-primary educational institutions and centres.  

5.      The State, through the Basic Education Act, 2013, had taken a much broader approach to the definition of basic education than that obtaining in international instruments and the Children Act.  Under section 28 of the Act, every child had the right to free and compulsory basic education.  A child under the Act and under the Children Act was any person who had not attained the age of eighteen years. Therefore, every person under the age of eighteen years was entitled to primary and secondary education in Kenya that was free and compulsory.

6.     Article 21(2) of the Constitution obliged the State to take legislative, policy and other measures, including the setting of standards, to achieve the progressive realisation of the rights guaranteed under article 43.  The right to education, having been a right protected under article 43, was subject to article 21(2).

7.      The realisation of the right to education over time, that is “progressively”, ought not to have been interpreted as depriving States obligations of all meaningful content. Progressive realisation meant that States had a specific and continuing obligation to move as expeditiously and effectively as possible towards the full realisation of the right. The State was therefore obliged to take steps to the maximum of its available resources, with a view to achieving progressively the full realisation of the rights.

8.      The obligation to take reasonable steps meant steps that were based on coherent policies and programs that were reasonable both in conception and implementation (Government of the Republic of South Africa v Grootboom). As concerns the right to education, progressive realisation did not mean mere paper policies but deliberate and concrete steps taken to achieve free basic education for all on a non-discriminative basis,  deployment of maximum available resources to ensure realisation, avoid retrogressive measures and monitor enjoyment of the right.

9.      There was no contradiction or ambiguity within the Basic Education Act, 2013. Section 28(1) of the Act was clear and required no more than a literal interpretation. It imposed on the Cabinet Secretary for Education the responsibility of implementing the State’s obligation to provide free and compulsory basic education for children. The manner in which the Cabinet Secretary discharged that obligation, within the parameters set by the Constitution and the Statute, were matters within the policy discretion of the national government and the Court could not interfere in such policies unless it had been shown that the Cabinet Secretary had been in violation of the Constitution. Section 29 (1) of the Act was also clear and unambiguous in providing that public schools ought not to have charged any fee on behalf of a pupil in the school. That was a logical consequence of the State’s own undertaking to provide free and compulsory basic education.

10. While the realisation of the right to basic education might have been progressive, the right to non-discrimination was immediate. Article 27 guaranteed equality for all persons and prohibited discrimination. The term “discrimination” implied any distinction, exclusion, restriction or preference which was based on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth. In the context, it referred to any distinction, exclusion, limitation or preference based on those grounds which had the purpose of nullifying or impairing equality of treatment in education.

11. Inequality in treatment was not per se prohibited. The question as to whether discrimination was fair or unfair, hence illegal, was to be weighed against the rationality test. The aim of the inequality ought to have been aimed at achieving a certain legitimate  governmental objective.

12. All the Court needed to be satisfied of was that the object of differentiation bore a rational relationship to a legitimate government purpose compatible with the principles and values of the Constitution. Such a test maintained fidelity to the principle of separation of powers that was one of the pillars of the Constitution. The question for determination then was not merely whether the provisions were discriminatory or amounted to unequal treatment, but whether the different treatment of children in public and private schools in the circumstances of the case bore a rational connection with legitimate governmental purpose.

13. In order to have progressively realised the free secondary school education, the Government had to give priority to public schools which served the majority of students across the country.  Under article 43(3) of the Constitution, the State had the obligation to give priority to the most vulnerable and marginalized in the society. That meant that the funding of children in private schools, while a goal to be progressively realised, its immediate application would have undermined affirmative action.

14. The failure by the State to provide financial and in kind assistance to private schools was not discriminatory. The distinction between children in private and public school was intended to achieve the overall goal of progressively providing free education to all children in the future. 

Petition dismissed with no order as to costs.