The Basic Education Act of 2013 as a tool for advancing early childhood development and education for children with disabilities in Kenya

1 Introduction

Education is an empowerment and multiplier right. Access to quality education enables one to profit from other rights and is a prerequisite for individuals to have control over their lives.1 It is through education that individuals develop their human potential, sense of dignity and self-worth as well as their mental and physical abilities.2 Education builds a pathway for one to claim and advocate one’s rights. For instance, it facilitates the acquisition and enhancement of skills for one to enjoy one’s right to work.

Education also facilitates effective participation in political life. Furthermore, it broadens an understanding of proceedings of day-to-day activities, including information on leisure activities and norms governing society. Formal education is a systematic process where transition from one level is preceded by another. The significance of these levels is justified by skills gained at preceding stages as tools for advancing to the next level. The article focuses on one of the levels - early childhood development and education (ECDE). This level plays a crucial role in laying a foundation in education. However, the protection of early childhood development and education under both domestic and international human rights law remains uncertain.3

The article focuses on access to early childhood education by children with disabilities in Kenya. The central argument of the article is that, although early childhood education is not strongly protected in the normative international human rights framework, the Basic Education Act of 2013 provides a framework for advancing ECDE for children with disabilities in Kenya. Against this backdrop, the article attempts to answer the following questions: to what extent the Basic Education Act of 2013 provides a framework for safeguarding and promoting access to early childhood education for children with disabilities in Kenya; and what opportunities exist in Kenya’s framework, and specifically in its blue print plan Vision 2030, to make access to early childhood education by children with disabilities a living reality. The structure of the article builds on these questions, and is divided into four sections. Section one begins by operationalising key terms used in the article and providing an overview of the general normative framework on the right to education. Section two introduces the education system in Kenya and legal tools on the right to education for children with disabilities in general. The section closes with an overview of treaty bodies’ comments to Kenya on access to ECDE. Section three narrows down to the Basic Education Act of 2013. An in-depth analysis of relevant provisions on ECDE is conducted. In light of this, the section examines the way in which the relevant provisions of the law may be utilised to seek judicial remedy and to advocate access to ECDE by children with disabilities. The section goes further to examine opportunities for implementation, with a specific focus on one of the flagship projects on education under the Medium Term Plan (2013-2017).4 Section four provides a conclusion and highlights challenges that could be resolved in future research.

2 Operationalisation of terms and overview of the normative framework on the right to education - International and regional

The United Nations (UN) Educational, Scientific and Cultural Organisation (UNESCO) defines early childhood care and education as the period from birth to eight years of age.5 The UN Committee on Rights of the Child (CRC Committee) adopts a similar definition. General Comment 7 on implementing child rights in early childhood6 defines early childhood as ‘all young children at birth throughout infancy, during the preschool years as well as during the transition to school’.7 However, in its reference to ECDE as the term used in Kenya’s policies, the article narrows down to pre-primary education. The Basic Education Act of 2013 (Act) defines pre-primary school as ‘education imparted to a child of four to five years before joining level one in primary school’.8

Additionally, for clarity in understanding, the article draws a distinction between inclusive education, integrated education and special education. The CRC Committee defines inclusive education as ‘a set of values, principles and practices that seeks meaningful, effective, and quality education for all students, that does justice to the diversity of learning conditions and requirements not only of children with disabilities, but for all students’.9 General Comment 4 of the UN Committee on the Rights of Persons with Disabilities (CRPD Committee) on the right to inclusive education adopts a similar definition with additional elements.10 The CRPD Committee recognises partnership, support to teachers and monitoring as essential to inclusive education. The General Comment further defines segregated or special education as ‘provision of education in separate environments designed to respond to a particular or various impairments, in isolation from students without disabilities’.11 Integrated education is defined as ‘a process of placing persons with disabilities in existing mainstream educational institutions, and requiring them to adapt and accommodate to a pre-determined environment’.12 A common practice in integrated education includes isolated units for persons with disabilities in the mainstream school environment who transition after a certain period, depending on how they can cope with the mainstream environment.

3 Background information on persons with disabilities, the education system and general legislative framework on the right to education in Kenya

According to the World Disability Report 2011, persons with disabilities constitute 15 per cent of the general population.58 In Kenya, statistics indicate that persons with disabilities constitute 4,6 per cent of the general population, which translates to 1,7 million.59

Kenya has an 8-4-4 education system, which translates to eight years for primary school level, four years for secondary school level and four years for higher education.60 Domestically, the rights to education of persons with disabilities are embodied in both mainstream and disability-specific legislation. The Persons with Disabilities Act (PDA) safeguards the right to education and prohibits the denial of admission of a person with a disability to any course of study on the basis of a disability.61 The right to education is also recognised as a constitutional right in article 53(1)(b) of the Constitution of Kenya, which entitles every child to free and compulsory basic education. The Basic Education Act of 2013, which gives effect to article 53(1)(b) of the Constitution, explicitly provides for the rights to education of children with disabilities. An in-depth analysis of the Act is provided in the next section.

While the PDA seems to remain unclear on inclusive education62 and has been critiqued for promoting segregated education, the Constitution, the supreme law in Kenya, provides a framework that may be used to promote inclusive education. It does so, first, by prohibiting indirect or direct discrimination on the basis of disability.63 Second, it provides that persons with disabilities have a right to access educational institutions integrated in the society that are compatible to their interests.64 Third, it recognises the need for substantive equality by providing affirmative measures in education to redress historical disadvantages.65 In summary, the general framework on the rights to education of persons with disabilities in Kenya draws its strength from the robust equality and non-discrimination provisions in the Constitution of Kenya, 2010.

The actual practice, however, has little to be desired. In 2002, Kenya introduced a free primary education policy and later, in 2008, introduced free day-secondary school education.66 One of the gains of the policy is the affirmative action for children with disabilities who get extra allocation to the standard capitation for non-disabled children.67 However, this has not adequately advanced access to inclusive education by the majority of children with disabilities. In its report on access to education by children with disabilities, the Kenya National Commission on Human Rights recommended a review of the free primary education programme to meet the needs of children with disabilities. The National Commission on Human Rights reiterated:68

For these children, Free Primary Education (FPE) goes beyond the provision of desks, books and chalk to include boarding, transportation, health and specialised equipment and teaching-aids necessary to educate them effectively.

Additionally, due to existing stereotypes69 and an overemphasis on literacy and numeracy as a form of testing academic competence70 in mainstream schools, children with disabilities have been forced to go to special boarding schools.71 Statistics indicate that in total Kenya has 1 882 primary and secondary special needs schools.72 The majority of these schools are located far away from the childrens' homes, and parents are forced to pay a boarding fee.73 These extra costs have raised concerns at the treaty level with the CRC Committee, who requested Kenya to provide details of the hidden costs of education of children with disabilities.74

These challenges are further confirmed by statistics provided in Kenya’s state report to the CRPD Committee. According to the state report, only 67 per cent of persons with disabilities were reported to have achieved primary education, while only 19 per cent had secondary education, with most attending special schools at pre-school and primary level. Only 39 per cent attended regular pre-school, and 37 per cent attended regular primary school respectively.75 From these statistics it is clear that most children with disabilities lay their foundation in a segregated environment. In addition, the statistics clearly indicate that, despite affirmative action, children with disabilities are not accessing education equally to their non-disabled peers. Unequal access to services has been interpreted as indirect discrimination.

In Autism Europe v France,76 the European Committee of Social Rights observed:77

Indirect discrimination may arise by failing to take due and positive account of all relevant differences or by failing to take adequate steps to ensure that the rights and collective advantage that are open to all are genuinely accessible by and all.

Subsequently, the Committee held that the fact that the proportion of children with autism being educated in either general or specialist schools was much lower than in the case of other children constituted a violation of article 15(1) of the European Social Charter on taking necessary measures to provide education for children with disabilities. The Committee also held that there was a violation of section 17(1) of the European Social Charter regarding the provision of sufficient and adequate services, whether alone or read in combination with article E on non-discrimination of the revised European Social Charter.

Similarly, the CRPD Committee raised concern over unequal access to services. In its review of the initial state report of Denmark, for example, the Committee raised its concern over unequal access to the complaints system of children with disabilities receiving different hours of support. The CRPD Committee reiterated:78

The Committee is concerned at reports that children in need of more than 9 hours of special education per week may submit a complaint to the Special Education Board, unlike children in need of fewer than 9 hours of special education per week who cannot submit a complaint to an independent authority regarding a lack of adequate educational support.

The CRPD Committee recommended amending the legislation to ensure that all children with disabilities can submit a complaint to an independent authority if they do not receive adequate educational support.79

The central argument of the article paper is that normatively, the principle of equality and non-discrimination, as embodied in both mainstream and disability-specific laws, including in the Basic Education Act, can be utilised to effectively safeguard access to early childhood education. This argument is further analysed in the next section, where the article discusses the extent to which the Act can promote access to ECDE by children with disabilities in Kenya.

4 Basic Education Act of 2013 - A new dawn?

The Basic Education Act of 2013 gives effect to article 53(1)(b) of the Constitution on free and compulsory basic education.87 Critics of the Act have described it as ‘one step forward and two steps back’, especially due to its emphasis on segregated education as opposed to inclusive education.88 However, it is to be noted, specifically with regard to access to education by persons with disabilities, that the Act is the first education statute to explicitly refer to ECDE, including access to ECDE by persons with disabilities.89 Against this background, the next section examines how the Act can facilitate access to pre-primary school by children with disabilities. It does so by examining the following main issues: definitional aspects; equality and non-discrimination as a guiding principle; implementation of the Act; and prohibition of inhumane treatment of children with disabilities in educational settings.

4.3 Implementation

In accordance with the Fourth Schedule of the Constitution of Kenya, Part III of the Act devolves pre-primary education.106 The County Education Board, together with the county government, is obliged to oversee the operation and management of pre-primary education.107 In addition, the county government is obliged to report annually to the Cabinet secretary on the progress of education.108 Part IV of the Basic Education Act obligates the Cabinet secretary to implement free and compulsory basic education, including establishing pre-primary, primary and secondary schools within a reasonably accessible distance within a county.109 The use of ‘shall‘ in both clauses places a mandatory obligation on government to provide free and compulsory education.110

Part IV further prohibits the charging of tuition fees; the denial of admission to school on different grounds, including disability; places a mandatory responsibility on parents to cause admission to a child; and criminalises the failure to fulfil this duty.111 Part VI on special needs education obligates the Cabinet secretary to establish and maintain public special schools, including pre-primary, primary and secondary schools.112

From these legislative provisions, four main observations may be made in relation to access to pre-primary education, both in special and inclusive environment. The first observation is that the Basic Education Act encourages the community-based service provision approach, which promotes social inclusion.113 This is a very positive step compared to past experiences. Kamundia observes that the lack of accessible schools in the community has forced children with disabilities to opt for boarding schools far away and being separated from their families at a tender age.114

The second observation is that the Basic Education Act safeguards choice; the law prohibits the denial of admission to any school on the basis of disability. The non-rejection clause reinforces the provisions of the CRPD115 to which Kenya is a party. The Office of High Commissioner for Human Rights (OHCHR) observes that non-rejection clauses require immediate realisation and are applicable on an individual basis and should not be subjected to reasonability tests.116 Further, the OHCHR calls for an end to the rejection of students in mainstream schools and urges states instead to provide appropriate support to facilitate their inclusion.117 In its review of Sweden, for instance, the CRPD Committee raised its concern over the refusal of admission to certain pupils with disabilities on the grounds of organisational and economic hardship.118 The Committee urged Sweden to guarantee the inclusion of all children with disabilities in the mainstream education system and to provide the necessary support.119 Similarly, in its recommendation to Kenya, the CRPD Committee urged Kenya to ‘immediately adopt a non-rejection policy for children with disabilities enrolling in regular schools and to provide reasonable accommodation’.120

The third observation is that the Basic Education Act creates a mandatory responsibility on the Cabinet secretary, in consultation with the County government, to establish pre-primary schools. This responsibility is broadly interpreted to include all the resources that ensure the efficient and effective running of a learning institution. It is to be noted, however, that these responsibilities exist in a new system of devolved government which, as alluded to earlier, has the primary responsibility of the implementation of pre-primary education. As a new regime of governance, devolution is under test. While some counties have set up structures and are effectively running, others are still struggling.121 With regard to the implementation of ECDE, the National Education Sector Plan recognises that regional inequalities have negatively impacted on universal access to ECDE with some counties, specifically those from the northern region of Kenya recording the lowest percentage.122 To close existing gaps, the National Education Sector Plan calls on counties to expand the budget allocation for ECDE, and to train parents and teachers on enhancing care and education for younger children.123 To ensure accountability and compliance, the development of a partnership with parents, civil society, in particular representative organisations of persons with disabilities and oversight authorities such as human rights institutions, is an indispensable element.

The CRPD obligates states to involve and consult persons with disabilities and representative organisations in the development and implementation of legislation and policies related to their issues.124 Joint efforts between counties and representative organisations of persons with disabilities will be necessary to support the setting up of inclusive pre-primary schools. The independent monitoring framework, which includes the National Gender and Equality Commission and the Kenya National Commission on Human Rights, should also monitor the extent to which counties are complying with this obligation and identifying areas for harmonisation with universal education standards.125

The fourth observation is that the Basic Education Act creates a mandatory responsibility of parents to ensure the admission of children to schools and criminalises the failure to fulfil this duty. For many children with disabilities, this is a shield - a shield to protect them from prejudices and stereotypes propagated within the family. These stereotypes have been used to justify denying children with disabilities the right to education.126

Teachers recounted instances where they had to literally go to find children locked away by parents who saw no value in educating a child with disability. Many parents viewed such children as unproductive members of society or as ‘victims’ to be hidden.

The Act further puts a monitoring measure as a reinforcement mechanism to the mandatory responsibility of enrolling children with disabilities in school. It obligates the Cabinet secretary and the county Board on education to ensure completion and retention of children in school. It further calls for submissions of an annual report by the county governments to the national government on achievements of each academic year. The monitoring mechanism coupled with the parental responsibility to ensure admission of children with disabilities is a safeguard to keep up-to-date information on the extent to which children with disabilities are accessing education.

5 Opportunities for implementation

In 2008, Kenya adopted a blue print plan130 as a strategy towards the implementation of the Millennium Development Goals (MDGs) under three main pillars: the political pillar, the social pillar and the economic pillar. Education falls under the social pillar. Under the current medium term programme (MTP2), the mainstreaming of ECDE is under the flagship projects for implementation.131 The goals include a review of the ECDE policy framework; the establishment of ECDE resource centres in 47 counties; and the provision of capitation grants with adjustments for children with disabilities enrolled in public ECDE centres.132 Further, the Sustainable Development Goals (SDGs) represent an opportunity for implementation of inclusive ECDE for children with disabilities. The SDG message to leave no one behind seeks to ensure that the targets are met for all peoples and segments of society, including persons with disabilities. Kenya, therefore, will be required to put in place measures to ensure inclusive and equitable early childhood education.

6 Proposals for future research and conclusion

Finally, the article poses two challenges for future research: First, the Act provides that pre-primary education is education provided for children between the ages of four and five years. The standard period of early childhood development and education according to UNESCO is birth to eight years. The question of what happens to children with disabilities before four years poses the challenge of whether the age of four to five is enough for early intervention in relation to the education of children with disabilities. Of specific concern here is birth registration and how this affects subsequent stages of learning, especially because of the primacy of documentation in registering in the education system. This begs the question of what possible ways the government can use to ensure that children between the ages of birth to four are not left out in early interventions as the success of the intervention between ages four and five depends on prior interventions.

Second, how free is free education for children with disabilities at all levels? The Basic Education Act provides that no tuition fee shall be charged to any pupil. Access to education requires a multi-dimensional approach. Availability as a core element of education is a broad aspect more than just affordability and, for learners with disabilities, especially persons with high support needs, this requires taking a step further to the provision of necessary support such as assistive devices, dietary provisions and health checks, especially for children of tender age. The challenge here for pre-primary education, as enshrined in the Act, is how proper dietary provisions and early intervention measures such as rehabilitation will be achieved at school and family level, given the indirect relationship between poverty and persons with disabilities. Should the government enhance social protection programmes to families of children with disabilities?

In conclusion, the article argues that the Basic Education Act does provide a legal pathway of promoting pre-primary school for children with disabilities in Kenya. The Act and the SDGs133 reinforce one another. The Act can offer guidance for the implementation of pre-primary education for children with disabilities, while the SDGs can contribute to the realisation of this right. Moving from paper to practice, therefore, requires adequate funding which should be earmarked at county budgeting, keeping up-to-date statistics which will assist in planning and adopting universal design as a way of dealing with accessibility challenges. The effective development and implementation of ECDE will also require effective participation and the involvement of disabled persons’ organisations and representative organisations of children with disabilities, hence the need for partnership between civil society and parents. Additionally, the monitoring framework under article 33(2) of the CRPD should monitor the extent to which counties are promoting access to ECDE by children with disabilities.