Kenya’s education sector has experienced a massive explosion of student enrolment in primary schools since the beginning of the Free Primary Education programme in 2003, which went from 6 million in 2002 to 7.2 million pupils in 2003. As at 2014, enrolment had risen to roughly 10.2 million.

However, despite this great milestone for the education and indeed human-rights sectors, the greatest challenge in implementation has been the absence of a clearly laid down procedure on how the government should handle the increasing number of pupils in the public primary schools. The facilities existing in 2003 have so far had to cater for all the students who have enrolled since.

The influx of students into public primary schools and the resultant overstretching of facilities have led to a high number of transfers to private schools. This trend has especially been informed by a general parental perception of poor quality in public schools, mostly due to the infrastructural and staffing constraints they face.

Poor performance by the public primary schools has also contributed to the rise of enrolment in private schools. According to the Ministry of Education, the enrolment rate to private schools tripled between 2005 and 2009 from 4.4 per cent to 10.5 per cent.

The worst-case scenario has been experienced in the densely populated urban informal settlements. The perceived need by parents to transfer children from public schools has over the years created a ready market for “low cost, better quality” education.

Public schools and basic services are either inadequate to cater for the huge populations or are completely unavailable.

Research shows that because there are too few government schools in urban informal settlements to accommodate all of the children, and because quality is perceived to be better in private schools, the gap in supply and quality has led to the proliferation of low cost non-government schools whose direct fee-charges are slightly higher than those of government schools.

In large informal settlements such as those in Nairobi, Mombasa and Eldoret, more than 50 per cent of the children attend low fee non-government schools that have mushroomed to cater for the growing demand among those seeking “quality” education.

The downside to this is that the right to education has inevitably become economically inaccessible to a majority of the children in these vulnerable areas, thwarting the essential aims of free and compulsory basic education. In addition to cost, quality is also a major concern.

These low-cost schools, usually registered as “non-formal schools,” use the national curriculum taught in public schools but operate largely with limited resources and without trained teachers.

Since they are registered under different ministries and state departments such as the State Law Office and Social Services Department, they mostly go unmonitored by the Ministry of Education.

Teachers are neither hired, registered nor supervised by the National Teachers Service Commission. The Ministry of Education rarely inspects their teaching quality, infrastructure or conditions of learning. Yet somehow they are allowed by the state, either by omission or commission, to provide basic education to children.

For the middle class who can afford slightly more expensive and high-fee formal private schools, a question arises as to the existence of a real choice for the parents in preferring private schools over public schools.

Research suggests that enrolment to the more expensive formal private schools is also driven by parents’ perception that the quality of education is better in private schools than in government schools. This is especially so given that formal private schools seem to be thriving and turning in better performances in the Kenya Certificate of Primary Education examinations.

Is the public education system living up to its goals and standards, as a human right protected by the Constitution and international human-rights instruments?

The situation in Kenya seems to be that education is yet to be understood and delivered to children as a human right. It has been left to private actors to sell it to willing, albeit desperate buyers as a commodity that only those who can afford it can consume.

The result? The poor infrastructure pulling back most public primary schools, the tremendous growth of the private sector in providing basic education and the lack of proper regulation, has led to the development of three levels of basic education:

• Formal private primary schools, which offer the best quality education; with adequate facilities and infrastructure, for higher income families

• Low-cost private primary schools, which offer seemingly better quality than public schools, mostly in informal settlements; but whose standards are neither regulated nor monitored by the state.

• Public primary schools, which are funded by the state, attended by the children of low-income families, whose quality remains low due to gross under-funding.

In October last year, UN Special Rapporteur on the Right to Education Kishore Singh warned that global rise of privatisation and lack of regulation further deepens inequality in education.

In his annual report to the United Nations General Assembly, Singh emphasised that education needs to be preserved as a public good because it creates important civic and social benefits for society as a whole, and cannot be left to the market. The UN report argues that given the recent dramatic growth in private education, it may soon supplant, not supplement, public education.

Again, in November last year, on different dates, the UN Committee on the Rights of the Child (CRC) formally asked the Moroccan and Ghanaian governments to offer explanations on the growing privatisation of education in their countries and the effect the proliferation of private schools has had on the quality of education and on the realisation of the right to education for all.

The two were given a year to respond. It will not be a surprise if Kenya is also tasked to explain itself in June this year when it is next reviewed by the committee.

While private actors should be allowed to provide education, this must not be seen to replace public education. Education must first of all be a government obligation; governments must provide free and good quality basic education, and provide it as a matter of right.

The decision by a parent to take their children to a private school must never be made out of an apparent lack of choice due to unavailability of or poor quality of public education system. We need to shift our thinking in line with the new Constitution.
The first step in this direction would be for all of us to understand that the Constitution and international standards require that all children in school be seen as students, not “customers.”

Sylvia Mbataru is an advocate of the High Court who works at the Nairobi-based Economic & Social Rights Centre, Hakijamii