Explanation of the right to education as provided for in the Constitution of Kenya, 2010.
The Foundation: Article 43
Kenya Coffee School and Barista Mtaani Supports this article by conducting various coffee education activities from farm to value addition.
The primary source for the right to education in Kenya is Article 43 of the Constitution, which is part of the Bill of Rights and deals with Economic and Social Rights.
· Article 43(1)(f) states unequivocally: “Every person has the right— to education.”
This establishes education as a fundamental, justiciable right for every person in Kenya, not just a privilege or a policy goal.
Key Constitutional Provisions Elaborating on the Right
While Article 43 establishes the basic right, several other articles provide crucial context, qualifications, and implementation frameworks.
- Free and Compulsory Basic Education: Article 53
This is one of the most significant provisions, specifically addressing the rights of children.
· Article 53(1)(b) states: “Every child has the right— to free and compulsory basic education.”
This places a positive obligation on the State to ensure that every child accesses and completes basic education without cost being a barrier. It is a key driver behind the government’s policy of free primary and day secondary education.
- Inclusivity and Non-Discrimination: Article 54 & 56
The Constitution is explicit about ensuring that the right to education is enjoyed by all, especially marginalized groups.
· Article 54 (Persons with Disabilities): It mandates the State to ensure that persons with disabilities have access to educational institutions and facilities integrated into society “to the extent compatible with the interests of the person.”
· Article 56 (Minority and Marginalized Groups): It requires the State to put in place affirmative action programs to ensure that minorities and marginalized groups have reasonable access to water, health services, education, and other infrastructure.
- The Objects and Principles of Devolution: Fourth Schedule
The Fourth Schedule of the Constitution divides functions between the national and county governments. While education policy, standards, curriculum, and universities are a national function, pre-primary education, village polytechnics, and homecraft centers are devolved to the county governments.
This means county governments have a constitutional mandate to invest in and manage Early Childhood Development Education (ECDE).
- Language and Culture: Article 7, 44 & 55
The Constitution also protects cultural and linguistic rights within education.
· Article 44 grants every person the right to use the language of their choice and participate in cultural life.
· In practice, this supports the use of Mother Tongue as a language of instruction in lower primary levels and the teaching of indigenous languages.
Legislation Giving Effect to the Constitutional Right
The Constitution provides the framework, but Parliament has enacted laws to give it practical effect. The most important is:
· The Basic Education Act, 2013: This Act operationalizes Article 53. It provides the legal backbone for free and compulsory basic education, defines the structure of basic education (pre-primary, primary, and secondary), and establishes institutions like the National Education Board.
Summary of Key Features of the Right to Education in Kenya
Based on the Constitution, the right to education in Kenya is characterized as:
- A Fundamental Human Right: It is enshrined in the Bill of Rights and can be enforced in court.
- Universal: It is for “every person,” including adults (e.g., through adult literacy programs).
- Free and Compulsory for Children: The State has a specific, non-negotiable duty to provide free and compulsory basic education for every child.
- Inclusive: Special provisions exist to ensure access for children with disabilities and those from minority and marginalized communities.
- Devolved: The management of pre-primary education is a function of county governments, promoting local involvement.
- Qualified: While the right is absolute in its existence, its full realization is subject to the “progressive realization” principle for Economic and Social Rights (Article 20(5)). This means the State must take deliberate steps towards its full achievement over time and within its available resources.
Enforcement
If the State fails to uphold this right (for example, if a public school sends away a student for lack of fees), a citizen can petition the High Court to enforce it under Article 23.
In summary, the Kenyan Constitution provides a robust and progressive framework for the right to education, moving it from a government policy to an enforceable legal entitlement, with a strong emphasis on access, inclusivity, and the needs of the child.