EDUCATION LAW AND POLICY

MAIN EXAM 2022

19ZAD104261

QUESTION ONE
A i)
Quality refers to the notion of a product or service being exceptional, distinctive, or special. The
poor quality of education manifested in university education manifests itself in the following
ways:
1. Absent lecturers
The vast majority of lecturers miss most or all of the semester's classes. And when lecturers are
there, they merely stay for a little while to teach before leaving again. Since it is challenging to
keep up with school work when there is inconsistency in the quality of instruction or the subject
matter expertise of instructors, this has an impact on students ‘grades.
Additionally, this makes students less inclined to show up for class and disadvantages them in
the course they are taking.
2. Overcrowding
Although there have been efforts over the years to expand the public higher education system,
rapid and sustained double-digit growth in demand has consistently outpaced supply.
"Double intake" is a common policy approach used to try to handle the increased demand for
higher education. Unfortunately, this increase in enrolment leads to an influx of students into
institutions that were initially intended to hold much fewer students, which causes congestion.
Students standing inside or outside of lecture halls during lectures is an example of this
phenomena.

3. Lack of practicability
Instead of teaching students the actual skills needed in the job, institutions now just focus on
passing tests. Many students write "Mwakenyas" just to pass exams. The course material is long
forgotten when an exam is finished, and attention turns to the next one.
This creates a gap when one steps in the real world and they lack the necessary skills needed to
excel in their career.

4. Limited educational resources

Kenya’s universities are struggling to meet demand due to limited educational resources and it
has been worsened by lack of financial support for higher education from the government. In
most universities, the country’s limited number of qualified lecturers are teaching up to six times
the number of students they were originally contracted for.
The University of Nairobi is one institution that has come under scrutiny, with both staff and
students criticizing its lack of resources and overcrowding which can push class sizes over 100 in
some departments.

5. Lack of curriculum standardization

Separate content is taught to students pursuing the same degree at two different universities,
which is problematic given that they will compete for the same positions.
Additionally, there aren't any consistent procedures for evaluating students across colleges,
which results in unfair grading and subpar graduates who can't compete with their foreign peers.

A ii)
 The government is making attempts to harmonious the legal framework governing the
management of education in order to make it possible for universities, commission for
higher education, higher education loans board and other related education agencies to
operate efficiently and effectively.

 For public universities tuition fees has been capped to a certain maximum per year where
no one student should pay more than required. There has also been issuance of HELB
loans and bursaries to assist those who are not able to make fee payments

 The government is making attempts to harmonious the legal framework governing the
management of education in order to make it possible for universities, commission for
higher education, higher education loans board and other related education agencies to
operate efficiently and effectively.
B

RULE OF LAW
Academic freedom is referred to as rights of an individual professor to teach his or her
curriculum without undue interference from university officials.
Its basic elements include:
 the freedom of teachers to inquire into any subject that evokes their intellectual concern
 to present their findings to their students, colleagues, and others
 to publish their data and conclusions without control or censorship; and
 to teach in the manner they consider professionally appropriate.
Article 33(1) C of the Constitution of Kenya provides that every person has the right to academic
freedom and freedom of scientific research.
Article 32(1) of the Constitution of Kenya provides that every person has the freedom of
conscience, religion, belief and opinion.
Article 20(1) of the COK states that every person shall enjoy the rights and fundamental
freedoms in the Bill of Rights to the greatest extent consistent with the nature of the right or
fundamental freedom.
Article 32 (4) of the COK further provides that a person shall not be compelled to act, or engage
in any act, that is contrary to the person's belief or religion
Section 29(a) of the Universities Act 2012 guarantees academic freedom and states that a
University, in performing its functions shall have the right and responsibility to preserve and
promote the traditional principles of academic freedom in the conduct of its internal and external
affairs.
Section 29(b) of the Universities Act 2012 further mentions that a member of the academic staff
of a university shall have the freedom, within the law, in the member's teaching, research and
any other activities either in or outside the university, to question and test received wisdom, to
put forward new ideas and to state opinions, and shall not be disadvantaged, or subject to less
favorable treatment by the university, for the exercise of that freedom.
Article 19 of the Universal Declaration of Human Rights provides: "Everyone has the right to
freedom of opinion and expression; this right includes freedom to hold opinions without
interference and to seek, receive and impart information and ideas through any media and
regardless of frontiers. Due to the inclusion of these rights under international law in Article 19,
this states unequivocally that academic freedom is an aspect of human rights.

APPLICATION
Mr Njogu exercised his academic freedom by writing and publishing an article about rights of
Rastafarians. By doing this he also exercised his freedom of religion.
In the case of Reed v Faulkner 842 F 2d 960 (7thCir 1988), the US Circuit Court held that
Rastafarianism was a form of religion. The court observed that the Rastafarians area religious
sect that originated among black people in Jamaica though it has adherents among black
American and that its tenets are derived by interpretation of passages in the Bible and, therefore,
Rastafarian faith was a bona fide religion for purposes of the First Amendment.
It is clear as day that Mr. Njogu’s freedom of religion was infringed since his proposal was
rejected on the grounds that it will disrupt the peace of the university despite the fact that he was
sharing his beliefs and was hindered from the latter.
Supreme Court of Canada in R v Big M Drug Mart Ltd (1985) 1 SCR 295; [1986] LRC (Const)
322); ‘’The essence of the concept of freedom of religion is the right to entertain such religious
beliefs as a person chooses, the right to declare religious beliefs openly and without fear of
hindrance or reprisal...[E]very individual [i]s free to hold whatever religious beliefs his or her
conscience dictates, provided, inter alia, only that such manifestations do not injure his or her
neighbors or their parallel rights to hold and manifest beliefs and opinions of their own.”

Mr. Njogu’s academic freedom and freedom of religion was infringed and he has the right to
seek redress from the university.
QUESTION TWO

1.
Gender disparity
For long time in Kenya, the girl child had been denied their right to education. Due to archaic
traditions, there are parents who still believe that educating a girl child is a waste of resources as
she will be married off eventually. Girls may be married at young ages due to a lack of other
alternatives, such as educational or economic opportunities. After marriage, young girls’ access
to formal and even nonformal education is severely limited because of domestic burdens,
childbearing and social norms that view marriage and schooling as incompatible.

Poverty
Without money flowing into Kenya’s economy ,it is hard to pay for a good education. In families
living below the poverty line, many children are forced into child labor in order to help their
families survive .This means that instead of going to school and getting an education for
themselves, they make money working in farms or as hawkers selling goods on the street.
Even in public schools where students don’t pay tuition fees, parents still must pay for meals, s
transportation, uniforms and other things necessary for learning,

Teenage pregnancy
Overall, more than 13,000 adolescent girls drop out of school, pushed into early motherhood
even before they are physically, emotionally or financially prepared. A number of these
pregnancies may result from sexual assault and thereby this causes a lot of strain on the student
and in turn her education too. Most underage mothers terminate their education for fear of
shame, stigmatization, and ridicule from the school and society and being rated as ill-mannered
children.
Lack of enough schools
There are not enough public secondary schools available for children to attend. This leads to
many children walking long distances to attend school. For example, in Embakasi with a
population of more than 170,000, the constituency has only two public schools - Kwa Njenga
Primary and Embakasi Girls Secondary School. In this case scenario, the boys are disadvantaged
since there is no secondary school institution for them. There are also some parents who are not
able top afford transportation money for their children therefore this causes the children to not
transition into secondary school despite possibly having met the required qualifications to join
the latter.
2.
 In order to curb teenage pregnancies which in turn assists the government in achieving
the objectives of this policy , the government in conjunction with county women
representatives should sensitize girls on the dangers of teenage pregnancies and teach
them how to keep themselves safe. Teenage mothers should also be encouraged to return
back to school as education is a human right and should be made available for all
including girls who are pregnant.

 The government should also seek to allocate more money to the constituency
development fund(CDF)which is a fund whose one of its mandates is building schools.
This therefore ensures schools are accessible to all regardless of their location.
QUESTION THREE

A.
Competency of trainers
The trainers’ level of qualification is critical in determining the efficiency of the training process.
A trainer should possess higher qualification to effectively execute the training duties. Most of
the trainers are either diploma holders or first-degree holders in each case thereby making the
quality of training low. This makes it difficult for trainers to move/update their knowledge or
skills with current times

Lack of resources
There are few and unevenly located technical training facilities. Kenya has more than 700
technical training facilities, including four national polytechnics, a technical teachers' college,
about 35 technical training centers, and more than 600 youth polytechnics, also known as village
polytechnics. These facilities are primarily found in counties with strong economies and are
almost nonexistent in arid and semi-arid regions.
Training centers also suffer from under-funding as there are normally no or very small
allocations of funds to technical training centers in the budget.

Biasness and stigmatization against TVET institutions by society

Society has a bias against technical courses because they believe that they are of low value than
professional courses which promise a higher paying job as well as a higher social status. For
example, one would rather be a teacher than a carpenter.
Those from TVET institutions may also face exploitation when they are taken advantage of since
it is claimed that they have less to offer compared to degree holders.

Quality of education does not match the contemporary advancements.

Current programmes are aligned on old technology and therefore produces trainees not well
suited for the market. The graduates therefore need further training in the industry which
becomes expensive for majority of the firms. For example, for a hairstylist trained in a TVET
institution, they are taught how to do say for example 30 hairstyles whilst in the hair beauty
industry there are more than one hundred hairstyles. This makes it hard for one to compete with
other more qualified counter parts.
B.
RULE OF LAW
Article 32(1) of the Constitution of Kenya provides that every person has the freedom of
conscience, religion, belief and opinion.
Article 20(1) of the COK states that every person shall enjoy the rights and fundamental
freedoms in the Bill of Rights to the greatest extent consistent with the nature of the right or
fundamental freedom.
Article 32 (4) of the COK further provides that a person shall not be compelled to act, or engage
in any act, that is contrary to the person's belief or religion.
Article 32 sub article (3) further provides that, a person may not be denied access to any
institution, employment or facility or enjoyment of any right because of the person’s belief or
religion. While Sub Article (4) states that a person should not be compelled to act or engage in
any act that is contrary to the person’s belief or religion. Article 32, therefore, guarantees the
right to manifest, observe and practice religious beliefs and prohibits actions that compel one to
act in a manner that goes against his or her religious beliefs.

APPLICATION
In the case of Reed v Faulkner 842 F 2d 960 (7thCir 1988), the US Circuit Court held that
Rastafarianism was a form of religion. The court observed that the Rastafarians area religious
sect that originated among black people in Jamaica though it has adherents among black
American and that its tenets are derived by interpretation of passages in the Bible and, therefore,
Rastafarian faith was a bona fide religion for purposes of the First Amendment.

In the case of JWM Alias P Vs Board of Management O Highschool and 2 others 2010 brought
a Rastafarian child who had been denied the right to receive education because she wears
rastas (dreadlocks) due to religious beliefs. JWM alias P, the Petitioner, is father to MNW a 15
years Rastafarian girl who was admitted to Form One at O High School, a public secondary
school, for her secondary school education in January 2019. She reported to school, paid the
required fees and was dully issued with admission Number, allocated a class and even attended
lessons. However, it was soon discovered that keeps rastas which led to her being sent home with
a warning not to return to school until she had shaved the rastas
The Petitioner felt this was discrimination and a violation of MNW’s right to education based on
her religious beliefs. He filed the petition on behalf of the minor against the Board of
Management of O High School.
The judge in the latter case ruled that:
‘The fact that MNW keeps rastas as a manifestation of her religious beliefs should not have been
the basis for excluding her from school. The school’s decision to force her to shave the hair
effectively punished the practice of her religion, degraded and devalued her and the other
followers of that religion in the eyes of other members of society. The ultimate result was to
force her to choose between adhering to her religious edicts thereby foregoing education, or
sacrifice an important aspect of her religion in order to pursue education. This is a clear
violation of the constitution and the law both of which guarantee her right to compulsory basic
education as none of the rights can give way.’
Freedom of religion is a constitutional right and should be respected by all. Mohammed’s
freedom of religion was infringed when he was suspended for violating school rules since
practicing his religion does not align with the Christian values of the school.
Mohammed has a right to seek redress from the school.