Kenya's high court sided with students and declared the recently proposed higher education funding model unconstitutional
The Kenya High Court delivered a landmark ruling on December 20, 2024, that declared the new funding model for higher education unconstitutional. The case, brought before the court by the Kenya Human Rights Commission and other organizations including the National Student Caucus, challenged the legality and fairness of the new model launched last year.
In his ruling, Justice Mwita declared the new university funding model unconstitutional for several reasons. The high court noted that it violates Section 53 of the Universities Act by introducing policies that conflict with the law. The court also found the model discriminatory, citing its unequal treatment based on financial ability, school type, age, and ambiguous criteria such as "household income," which violate Article 27 of the Constitution guaranteeing equality and freedom from discrimination. Additionally, the funding model breached students' legitimate expectations by abruptly replacing the existing framework without prior notice or consultation. Furthermore, the court ruled that the model failed to meet constitutional requirements for public participation and parliamentary oversight.
The National Student Caucus welcomed the court's decision, hailing it as a victory for students and the broader Kenyan public. In a statement, the organization said: "This pronouncement provides an opportunity for the entire country to reflect on the future of its tertiary institutions. At a time when major higher learning institutions are grappling with finances, it is urgent that the state sincerely and objectively revisits the manner in which it intends to sustain the country's higher learning processes. Isolating the youths and the general Kenyan public from university education through adverse cost adjustment is surely not one of those ways to remedy the sorry state of our universities; and the courts have naturally associated themselves with this logic."
The court's ruling resonates with the urgency and the need of adopting a more inclusive and transparent approach to policy-making in Kenya, especially given the mass protests which shook the country last year. As education is a fundamental public good, any changes to its funding must prioritize accessibility and equity for all Kenyans, and by the court ruling its clearly this was not factored. Nevertheless, it's not unusual since neoliberal policies push education as a commodity only accessed through money.
This drove thousands of students to the streets in September to protest against the new funding model, which they deemed unfair and discriminatory. The model categorizes learners based on family income, using criteria that many argued were opaque and unjust. Students pointed to the fact that the model's distribution criteria placed a significant financial burden on students from low-income families, making university education inaccessible for many. As a result, over 10,000 students appealed their funding allocations after being placed in categories where they could not afford the cost of higher education.
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Read: Kenya's students reject new funding model
In response to the ruling, the government has indicated a willingness to review and adjust the model to ensure it better serves the needs of the students, while considering the long-term viability of public universities. Students have expressed that it is imperative that any proposed model prioritizes accessibility, affordability, and inclusivity in higher education, and not further entrench the barriers that many Kenyan students already face in accessing quality education. The success of these adjustments will depend on a collaborative approach, including input from universities, students, and other stakeholders, to create a consolidated funding and a collective decision moving forward. The continuous pressure exerted by students in advocating for their right to education is necessary. It is essential that this momentum continues, and the rallying call of dismantling systemic barriers and ensuring that higher education is accessible to all, regardless of socioeconomic status.
Nicholas Mwangi is a member of the Ukombozi Library in Kenya.
