By Mohamed Billow Abdi
The enactment and suspension of Section 22 of the Election Act by Parliament appears paradoxical to the attainment of the right to education. Textually, the Constitution of Kenya provides for the right to education but the state skepticism in respect of implementation remains a bottleneck.
The justiciability of the economic, social and cultural rights is clear in terms of the specific constitutional provisions and the international human rights treaties and conventions ratified by Kenya and applicable within the meaning of Article 2(6) of the Constitution. In fact, the list of International treaties and covenants ratified by Kenya in respect of the right to education is not exhaustive; it depicts a picture of robust legal framework geared towards the realisation of the right to education.
As well, there is a symmetrical access to education and de facto inequality in the attainment of basic education. The Kenya National Bureau of Statistic 2019 census figures mirror the dire situation in respect of the attainment of the right to education in Kenya. According to the 2019 census results, only 3.5 percent of the country’s population had a university degree as the highest educational level completed in 2019. The number of persons who completed their middle level or technical training was relatively low at 7 percent. In other words, attainment of post-secondary education remains a lofty goal for the ordinary Kenyan.
Progressive realisation
While the provisions of Article 43 codify the fundamental right to education, Article 20(5) aspires for progressive realisation, imposing a positive obligation on the state in the attainment of the right to education. For a long time, the government has classified socio-economic rights as second generation rights to try and defeat the essence of the bill of rights. The recent developments in contemporary treaty making and the interpretation of the court renders the classification of human rights a sterile and outdated concept. The rigid classification of rights defeats the indivisibility and interdependence of human rights as espoused in paragraph 5 of the 1993 Vienna Declaration and Programme of Actions and the judicial pronouncements affirm the same.
In Mitubell Welfare Society vs the Attorney General & 2 others Petition No.164 of 2011, the Court affirmed that there is a constitutional obligation on the state to go beyond the usual objection and assist the court by showing if and how it is addressing or intends to address the right of the citizens to the attainment of the socio-economic rights. The constitutional obligations within the context of Article 43 and 21 require optimal realisation of the right to education with concrete policies, plans and full use of the maximum available resources.
In Michael Mutinda Mutemi vs Permanent Secretary, Ministry of Education & 2 others Petition No. 133 of 2013, the court held that the state has failed to demonstrate concrete policy, measures, guidelines and progress made toward the attainment of economic rights and particularly the right to education. The court emphasized on the need to demonstrate political and financial commitment in furtherance of the right to education. In a rather enticing view, the court asserted, “Article 43 of the constitution does not sit there like a defected football player who lost a match. It is indeed alive and has started the run towards full realisation as opposed to a slow shuffle in the name of progressive realisation.”
The sad state of affairs with respect to the realisation of socio-economic rights is a clear manifestation of the failure on the part of the state to effectively recognise and actualize the implementation of Article 43, even in the context of our bulging national budget.
Human Rights and Elections: The practicability of Section 22 of the Election Act, 2011
Section 22 of the Elections Act provides that candidates desirous of contesting for legislative seats at both levels of government shall be required to have attained a degree from a recognized university (in Kenya). The section contradicts the preamble of the Constitution, the national values and principles of governance on equality. The obvious ramifications of the section is the entrenchment of the elite’s dominance in our political affairs. Finally, the law operates in context and therefore there is need to adapt to the specific circumstances and realities of the Kenyan state such that any law that seeks to expose Kenyans to undue hardship ought to be amended.
In conclusion, the operationalisation of Section 22 of the Election Act will create differentiation that bears such a rational nexus with unfair discrimination. To that end, the academic qualifications codified under the section need to be amended so that the Act can operate in the light of the attainment of the right to education.
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