A classroom under a tree at Konyao Dorcus Adventist Primary School in Kacheliba, West Pokot county /FILE
TWO TYPES OF RIGHTS?
There has been much debate about whether these are really different from rights such as freedom of expression, assembly, association, of movement, to life and fair trial.
This debate goes back to the era of the Cold War and of newly independent countries. The Soviet Union and many developing countries argued that traditional human rights could stand in the way of their efforts at development including education, health and so on. Some Western countries were sceptical about the idea of things like health and education being rights.
So the world ended up, in 1966 with both the International Covenant on Civil and Political Rights (ICCPR) and that on Economic Social and Cultural Rights.
This departed from the original post-WWII approach to rights – the Universal Declaration of Human Rights recognises particularly “freedom of speech and belief and freedom from fear and want”.
It has detailed provisions on the right to education and less detailed on “the right to a standard of living adequate for … health and well-being... including food, clothing, housing, medical care and necessary social services.” To this day the USA has not ratified the ICESCR, but became a party to the ICCPR in 1977.
Kenya became party to both in 1972. You can’t really divide rights like this. Freedom of expression, life and equality are meaningless for people who have no food, education, or access to health care.
Similarly, freedoms of expression, association and assembly, and fair trial may be essential for protecting other rights. And if government recognises only certain types of rights, are these really rights or the grace and favour of government?
As for supposed differences in terms of the costliness of economic, social and cultural rights, decent prisons, fair trial, even the right to life may cost government. And work by UN committees and special rapporteurs has analysed socioeconomic rights as involving first “respecting” the rights (which means not doing anything positively to breach them).
The duty of the state also involves protecting rights against violation by others (protecting by law particularly, but in other ways also). The duty involves promoting rights – which would involve things like education, persuasion and taxation. And when necessary it may involve fulfilling rights – which involve the most effort and expense, as by providing health facilities, schools etc.
Our constitution applies this idea more widely: the state must respect, protect, promote and fulfil the rights to freedom of expression, equality, fair trial and all the rights.
To put this in the constitution was made easier because South Africa had already done so.
Why am I inflicting this “socioeconomic rights 101” on you? Recently a Daily Nation article described how parents had been losing out in litigation against private schools because courts have been saying that private schools do not have any duty to provide education.
I have a sense that socioeconomic rights are still not fully understood or accepted in some quarters in Kenya.
DUTIES APPLY TO US ALL
A recent case mentioned in that newspaper article involved expulsion of children from a school because of serious tensions between the school and their father.
Interestingly, the court held that not the expulsion itself but the way the children had been treated by the school had violated Articles 28 (human dignity) and 29(d) (psychological torture).
So the court was accepting that schools are bound by these articles (RAB & RAB V Makini Schools [ 2025 ] KEHC 2475 ). What this judge, and others, have said on the right to education and private schools is more questionable.
This judge said “there is no constitutional obligation on a private education institution to provide education.” In his view the issue was one of contract between the school and the parents of the children not of the constitution.
ARTICLE 43 BINDS PRIVATE PARTIES
I sense that judges have been misled by Article 21 - saying that the state must take measures “to achieve the progressive realisation” of the Article 43 rights - to believe that those rights concern only the state and not the private education sector.
But the Supreme Court has said “private entities have the obligation, under Article 20( 1 ), not to violate Article 43 rights as non-violation of all rights in the Bill of Rights applies both horizontally and vertically and binds both the State and all persons” (Musembi v Moi Educational Centre [ 2021 ] eKLR).
That obligation is to “respect” the Article 43 rights, as the Supreme Court made clear. I agree that a private education body has no obligation to open a school where there is none.
That is the obligation of the state. I would argue that a private school should not suddenly close, leaving children without education, unless unavoidable, at least if no alternative schooling is readily available. A private developer who evicts people should not do so at exam time if children will be affected.
The Kenyan court relied heavily on a somewhat similar South African case in which the Supreme Court of Appeals had held that the matter was one of contract between parents and school. However, the Constitutional Court (ConCourt) had reversed that decision and held that the constitution did apply to private people and bodies, including schools.
The case (AB Pridwin Preparatory School [ 2020 ] ZACC 12 ) is a very useful exposition of the whole issue of “horizontal application” of rights. Doesn’t this observation by the court sound like Kenya?
“The independent school sector is now dominated by comparatively low-fee independent schools, which educate up to 73 per cent of the learners in this sector.
This change has been driven, in large part, by the fact that the public school system is, unfortunately, ailing … Children should not be excluded from this [constitutional] protection merely because parental choices or circumstances have placed them in independent schools.” [Private schools fill the gap created by the state’s failure to comply with Article 43, in Kenya.]
The ConCourt was very clear that a contract could not override the constitution.
Another point involved the “best interests of the child”. This is supposed to be “paramount” when a child is concerned (Article 53( 3 )). The Kenyan court again rejected this as irrelevant – also citing the same South African case in the SCA.
But the ConCourt said, “it is against public policy to enforce a contractual claim that infringes the constitutional rights of children who are not parties to the contract” making the point that parents make the contract, the children are those directly affected by it.
Kenyan courts are not bound to follow foreign judgments. But when the provisions of our constitution are similar to those of South Africa, and the judgment in question is from such a distinguished court, one would expect very good reason for not following it.
Here, apparently the Kenyan court was even unaware of the ConCourt decision. The SCA judgment they did know of was in 2018.
The ConCourt judgment in 2020. The Kenyan case began in 2023. How could the Kenyan lawyers, on both sides – and the judge’s researcher - be ignorant of the ConCourt decision? Worse would be deliberately concealing the ConCourt decision from the judge.
Anyway, I believe the Kenyan court could, and ought to, have reached a different conclusion on the general principles, even without the benefit of the ConCourt case.
That is not to say the decision on the facts of the particular case would have been different. My concern here is with who, under our Constitution, has the duty to respect the right to education.
