On May 1, 1972, Kenya ratified the International Covenant on Economic, Social and Cultural Rights.
But the legal status of that covenant in Kenya remained vague until the passing of a new constitution in 2010 which expressly provided that any treaty or convention ratified by Kenya shall form part of the law of Kenya under the Constitution.
That is a remarkable clause that demonstrates the heavy legal impact of ratified treaties and conventions because other known sources of Kenyan law like statutes or judge-made decisions are not similarly anchored in the Constitution.
The issue of ranking of laws is an argument for another day but the point is, with the enactment of the new Constitution, ratified treaties and covenants are now sources of law in Kenya.
Therefore, the attention of the Cabinet Secretary for Education should be drawn to article 13 (2) (c) of the International Covenant on Economic, Social and Cultural Rights that provides that “Higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular, by the progressive introduction of free education”.
The proposed reduction of the Higher Education Loans Board (Helb) loans is therefore in conflict with the clause 13 (2) (c) of ICESCR in that it will make higher education inaccessible to the poor and negates the principle of progressive introduction of free higher education.
Leaving aside legal arguments, economists may argue that State support in the form of loans or subsidised fees to students pursuing higher education ought to be curtailed or should not to be a priority in a poor country like Kenya which has many contesting needs. This argument is hollow for several reasons.
High drop-out rate
The curtailing of financial support to students will impact negatively on those from poor backgrounds because higher fees may be unaffordable, thus leading to high drop-out rates. This would discourage bright, poor students in high school, hence causing an overall decline of education standards.
It would make professions that require a degree like medicine and law a preserve of the rich thus increase income disparity. Talent and expertise would be lost since such a system would have a narrow elitist pool to pick from, with the talented poor applying their best minds to crime and other underclass occupations.
The country’s stated mission of being a middle-income society by 2030 would be a mirage. Rather, Kenya would be hurtling dangerously to a class war due to unfair distribution of opportunities.
Kenya is, indeed, on a negative trajectory in the realm of Higher Education. Helb officials have said they intend to reduce loans awarded to students. Universities no longer guarantee accommodation, causing most students to rent outside campuses hence greatly increasing living expenses.
State-funded post-university professional bodies with monopolistic sway have erected barriers greatly disadvantaging the poor. For instance, the Kenya School of Law is charging students Sh195,000 excluding living costs like accommodation.
Further, disbursement of Helb loans is not timely and the criteria for awarding the loan appear unfair taking into account the many students to have lodged complaints with me.
Although many students join campus at 17, under-age students do not qualify for loans. Is this the way we want to go?