Education or Exclusion? The Non-conformity of Unaffordable University Fees with the Constitution and International Law

Authored by: Samuel Kahura

When the cost of learning becomes a fortress, education turns from a right to a privilege, leaving many standing at the gates. In a country where Article 43 (f) and Article 55 of the Constitution promise access to the tool that Nelson Mandela thought to be the most powerful to change the world, unaffordable university tuition fees become a silent gatekeeper, defying the very principles espoused by the commitments Kenya has undertaken under the Constitution and the various international instruments.

An analysis of the inconsistency of unaffordable university fees with the Constitution of Kenya, 2010 begins at Article 21. Under Article 21(1) of the Constitution, it is a fundamental duty of the State and every State organ to observe, respect, protect, promote and fulfil the rights and fundamental freedoms in the Bill of Rights. Further, under Article 21(2) of the Constitution, the State is required to take legislative, policy and other measures, including the setting of standards, to achieve the progressive realisation of the rights guaranteed under Article 43.

In Mitu-Bell Welfare Society v Kenya Airports Authority & 2 others, [1] the Supreme Court stated that there is nothing wrong in making reference to the United Nations Guidelines as an interpretative tool aimed at breathing life into Article 43 of the Constitution. I shall do just that. General Comment 13 by the Committee on Economic, Social and Cultural Rights (CESCR) outlines the meaning of the obligation to respect, promote and fulfil. According to the CESCR, the obligation to respect requires states parties to avoid measures that hinder or prevent the enjoyment of the right to education, the obligation to protect requires States parties to take measures that prevent third parties from interfering with the enjoyment of the right and lastly, the obligation to fulfil (facilitate) requires States to take positive measures that enable and assist individuals and communities to enjoy the right.

Firstly, unaffordable university fees fall short of the obligation to respect the right to education. For example, the placement of students in band 4 and 5 of the new funding model without a clear cut of procedure that allows accurate filtering of those deserving to be in band 4 and 5 and those in other bands contradicts the obligation to respect the right to education since it hinders access and prevents enjoyment of the right to higher education to vulnerable students who cannot cover the household fees required under those bands. According to the CESCR, accessibility entails among others, economic accessibility. The CESCR notes that economic accessibility in relation to the right to higher education under Article 13(2) (c) of the International Covenant on Economic, Social and Cultural Rights entails progressive introduction of free higher education. Therefore, the arbitrary placement into bands that require students to pay huge sums despite their underlying complex social and family structures such as having many siblings or a parent having many dependants entails a violation of the State’s obligation to respect.

Secondly, unaffordable university fees fall short of the obligation to fulfil. This obligation entails exactly what Article 21(2) requires the state to do, that is, to take legislative, policy and other measures, including the setting of standards, to achieve the progressive realisation of the right to education. Progressive realisation of higher education according to the CESCR means moving towards introduction of free higher education. As Majanja J (as he then was) noted in Nyabola v Attorney General & another, [2] albeit in the context of basic education, progressive realisation does not mean mere paper policies, it means taking deliberate and concrete steps to achieve free basic education for all on a non-discriminative basis, deployment of maximum available resources to ensure realization, avoid retrogressive measures and monitor enjoyment of the right. This applies equally to higher education. 

The State is therefore required to be moving towards free higher-education and not regressing back to costly higher education fees. Examples of band 4 and 5 of the new funding model fall short of this goal since they are actually a regression from the earlier 20% that students were covering under the old model.

Whereas I am well aware that the fulfilment of socio-economic rights is contingent on availability of resources, in a country where the President to the lowest ranked representatives such as MCAs have a bursary fund that they use to demean the people they represent, forcing them to beg and show how poor they are to get bursaries, I am simply deaf to any arguments about unavailability of resources. In a country where corruption is recurrent expenditure and unconstitutional offices being set up everywhere, I refuse to accommodate any arguments on unavailability of resources.

In conclusion, it is clear that sky high university fees not only shut the gates of institutions of higher learning to many but also runs afoul of the promises enshrined under the Constitution and echoed in Kenya’s international law commitments. It is therefore imperative that education stakeholders engage to find solutions to align the replica American university funding model, which they have recently super imposed without consideration of our different circumstances, to the promise by the Constitution and Kenya’s duties under international law.

REFERENCES

1. [2021] eKLR

2. [2014] eKLR