Thursday, July 24, 2014

School principals have no legal right to withhold certificates from graduates

Candidates in Lodwar sit for their KCSE examination in October. PHOTO | PETER WARUTUMO

Candidates in Lodwar sit their KCSE examination on 22, 2013. A policy that permits schools to decline to release such certificates would have a disproportionate impact on students from poor backgrounds. PHOTO | PETER WARUTUMO  NATION MEDIA GROUP

By KORIR SING'OEI
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High schools would like to place holds on the release of KCSE examination certificates because of students’ failure to pay fees. This position has been clearly advanced by the Knut secretary-general, who says high schools across the country are owed more than Sh14 billion in unpaid fees.

The non-payment of this sum, in his view, imperils the financial sustainability of many schools, leaving them with no choice but to withhold the certificates.

While the position held by the schools’ administrative fraternity is not without justification, it runs counter to the law and principles of justice. Section 10(1) of the Kenya National Examinations Council Act (Cap 225A), the statute that establishes Knec, is explicit in providing in part that “the functions of the Council shall be to . . . award certificates or diplomas to candidates in such examinations; such certificates or diplomas shall not be withheld from the candidate by any person or institution.”

The plain reading of this provision reveals the following. First, the KCSE certificates are awarded by, and are the property of, Knec. At no one time does the certificate belong to any of the high schools in which a candidate sat for examinations.

Second, once the certificate is issued by Knec, no person or body is authorised to withhold it from the beneficiary.

The law does not contemplate any circumstances in which a high school principal can decline to release a KCSE certificate from a graduate on account of outstanding fees.

Essentially then, high schools that withhold certificates are transforming the legal character of these certificates from documentary evidence of an individual’s academic performance to a debt instrument.

This approach is problematic because, aside from the absence of a contract by which a student commits his or her certificate as a security for any outstanding financial obligations, there are serious justice issues implied in the decision to withhold.

STUDENTS FROM POOR BACKGROUNDS

First, it must be understood that most students who are indebted to schools are from poor and disadvantaged backgrounds because their parents are unable to raise the necessary fees. After years of toil, such students hope that a good education will afford them an opportunity to break free from the poverty trap.

A policy that permits schools to decline to release such certificates would have a disproportionate impact on students from poor backgrounds whose hopes for either further education or employment remained illusory. The effect of implementing such a policy would be entrenched inequality.

Second, given the right of every child to free and compulsory basic education, any policy in favour of withholding of certificates must be viewed as a clear limitation of this right.

While the Constitution does not define what constitutes ‘basic education’, by applying this right to a ‘child’, defined as a person under 18 years, it suggests that basic education encompasses persons attending both primary and secondary schools.

This interpretation is borne out further by a reading of section 30 of the Basic Education Act which obligates a parent to ensure a child is in regular attendance at an institution offering basic education and imposes penal or pecuniary sanctions upon those parents who default from this obligation.

If a poor parent of a 16-year-old secondary school learner runs the risk of jail for a term should they be convicted of failing to ensure their child’s attendance in school, it must follow that their inability to pay fees cannot be used to later penalise their child due to financial delinquency.

When the Deputy President supported the immediate release of high school certificates to graduates notwithstanding any outstanding debt to their schools, he was propounding a policy supportable by both our Constitution and various statutory instruments.

Of course, the burden on the State to ensure the financial sustainability of schools is another challenge that must be grappled with.

Mr Sing’Oei is a legal adviser to the Deputy President

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