Education & Litigation
RIGHT TO EDUCATION
Right to education is one of the several Economic Social & Cultural Rights recognized under International and National Laws. It is considered to be the most important ESC Right as it leads to the realization of the other Rights. It is thus important for all persons to get educated to ensure the enjoyment of the other ESC Rights however access to education is still compromised in various parts of Kenya with the marginalized groups and pastoral communities bearing the brunt of inaccessibility.
The Constitution being the supreme law of the land provides under Article 2 (5) that the General rules of international law shall form part of the law of Kenya and further under Article 2 (6) that any treaty or convention ratified by Kenya shall form part of the laws of Kenya. It’s by virtue of these Articles that Kenya is bound by international laws protecting the right to education. They include:
- the International Covenant on Economic, Social and Cultural Rights, 1966 (Articles 2 and 13; General Comment No. 13);
- International Covenant on Civil and Political Rights, 1966 (Articles 3 and 26; General Comment N°28);
- Convention on the Rights of the Child, 1989 (Articles 2, 28 and 19; General Comments No. 5 and No. 16);
- Convention on the Elimination of All forms of Discrimination against Women, 1979 (Article 2, General Comment No. 28);
- UNESCO Convention against Discrimination in Education, 1960 (Article 10); and
- ILO Convention 169: Indigenous & Tribal Peoples Convention, 1989 (Article 27).
Under National Law, the Constitution, the Basic Education Act and the Children’s Act are the laws protecting the right to education. Under the Constitution, several articles promote the right to education. Article 43 (f) provides that everyone has the right to education and Article 53 (1) (b) further provides that every child has the right to free and compulsory basic education. Article 54(1) (b) provides that a person with any disability is entitled to access educational institutions and facilities for persons with disabilities and Article 55(a) states that the state shall take measures, including affirmative action Programmes, to ensure that youth access relevant education and training and finally Article 56 (b) provides that the state shall put in place affirmative action programmes designed to ensure that minorities and the marginalized groups are provided special opportunities in educational and economic fields
The Basic Education Act under Section 29 provides that no public school shall charge or cause any parent or guardian to pay tuition. Other charges may be imposed at a public school provided that no child shall be refused to attend school because of failure to pay such charges. The persons responsible to ensure children attend school are clearly identified in the Act which provides that no person shall while admitting a child to a public school or a basic education institution collect any admission fee. Section 31 (1) of the Act provides that it shall be the responsibility of every parent or guardian to present for admission or cause to be admitted his or her child, as the case may be, to a basic education institution. Sub-section (2) further provides that where a parent or guardian defaults in the discharge of his or her responsibility such a parent or guardian shall be deemed to have committed an offence and is liable to fine not exceeding one hundred thousand or to a period not exceeding two years or to both. Section 39 further states that it shall be the duty of the Cabinet Secretary to provide free and compulsory basic education to every child and ensure compulsory admission and attendance of children.
Hakijamii is at the forefront to ensure this right protected under both national and international law is realized by all regardless of race, religion or sex.
PUBLIC INTEREST LITIGATION
This refers to proceedings initiated in the High Court for the enforcement or protection of an interest in which the rights or fundamental freedoms of the general public or class of persons or community are affected. Contrary to private or civil litigation, one of the main characteristics of Public Interest Litigation is to redress a public wrong and to uphold a public right. PIL may be more suitable in addressing situations in which it is either undesirable or impossible to limit the claims to specific members of the public. A side effect of PIL is that it often can compel unwilling authorities to finally act in compliance with their obligations by raising public awareness of implementation gaps of constitutional or human rights standards.
Hakijamii institutes and/or enjoins in PIL Cases that touch on Economic & Social Rights. Hakijamii has managed to innovatively blend its community partnership work with impact litigation aimed at expanding the opportunities for realization of ESC Rights. This approach largely succeeded when Hakijamii obtained court orders stopping evictions and securing an award of hundreds of millions of shillings as damages for the victims in Petition No. 2 of 2011, Ibrahim Sangor Osman vs The Hon Minister of State for Provincial Administration & Internal Security and 3 Others. The action helped the community in Garissa and Hakijamii’s network of communities to understand their rights in a more concrete way that cannot be achieved through human rights public information campaigns
In the event the organization during the cause of its work comes across persons whose human rights and fundamental freedom have been violated/infringed, and the said rights and freedoms do not fall under the ambit of Economic, Social and/or Cultural Rights, the organization shall establish the relevant organization whose work relates to this and inform them of the violations and advise to institute the suit. The Organization shall gladly give pro bono legal advise to the affected before referring them to the relevant body to institute the suit.
RESEARCH & PUBLICATIONS