Education for all, even for children with disabilities in Kenya

Author: William Aseka
Program Assistant (Human Rights Advocacy for Children with Disabilities), Governance Consulting

There is no outright definition of what education means, however commentators such as Milter has defined it as, an act, process or experience that systematically promotes learning, knowledge and development. By the same token, writers such as Mialeret have defined education from a much narrower view than the above stated, to mean formal instruction of knowledge within recognised and well-structured system of institutions and programmes. This definition by Mialeret is also seen in the 1997 International Standard Classification of Education. Therefore, having known what education means, then the question that comes next is: what is the right to education?

General Comment No. 13 of the Committee on Economic Social and Cultural Right (CESR) defines education as both a human right itself and an indispensable means of realising other human rights. The committee goes further to state that as an empowerment right, education is the primary vehicle by which economically and socially marginalised adults and children can lift themselves out of poverty and obtain the means to participate fully in their communities. These economically and socially marginalised groups include children with disabilities in Kenya and all over the world. This essentially means that children with disabilities are well protected and are entitled to education and it is not a favour that any government would be doing to these groups.

The right to education is well provided for in a number of international treaties such as the 1948 Universal Declaration of Human Rights (UDHR) under Article 26 (though not having legal effect), 1966 International Covenant on Economic, Social and Cultural Right Article 13, United Nation Convention on the Rights of the Child Article 28, African Charter on Human and Peoples Right Article 18, African Charter on the Rights and Welfare of the Child Article 11 and Convention on Rights of People with Disabilities Article 24. All these instruments are applicable to Kenya for two main reasons:-

i.        Kenya is state party to all these instruments and

ii.        That vide Article 2(6) of the Constitution of Kenya 2010 which provides:-

‘Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution’ (Emphasis mine)

Children with disabilities are a unique group of individuals who need care and are entitled to human rights which must be guaranteed by the state, as provided under UDHR. From the above provisions in various international human rights instruments, there is no provision which states that if one is disabled then one should not be entitled to education. In fact, under Article 54 of Constitution of Kenya, discrimination on the basis of disability is prohibited. Hence it can be concluded from the above that the right to education for (disabled) children is compulsory. The concept of compulsory education has at least two main elements. Firstly, it entails that parents or guardians and the state are not entitled to consider the decision of access of a child to education as optional. Hence, it is a mandatory requirement to ensure that all children access primary education. Secondly, it implies access to education without discrimination.

Then why is that the education for children with disabilities is not guaranteed in Kenya? There are several reasons to support the above question. These range from poverty, poor planning by the government of Kenya and the most important approaching disability from a ‘medical model’ rather than a ‘social model’. The medical model presupposes that children with disabilities are a problem and they need to be ‘fixed’. In this fixing, the model says that they need to be in excluded locations and systems. On the other hand, a social model supports the notion of inclusive education. A social model further dictate that children with disabilities are not a problem and it is the environment that is a problem. Hence in trying to solve the problem, the government should fix the environment rather than excluding children from mainstream education. The social model has been closely linked with the human rights model which looks at the individual as a human being with rights and not a problem to be ‘fixed’.

The concept of inclusive education, which should be the primary way in which the Kenyan government should approach education for children with disabilities, presupposes that their education should be in mainstream schools where they and other children learn together. The approach focuses on the school environment and its barriers. It perceives the impediments in mainstream education and school environment as challenges faced by children with disabilities. It aims at identifying and eradicating such hindrances to enable all children, including children with disabilities, to attain education. Therefore, the inclusive education approach seeks to ‘fix’ the school system to accommodate the learning of children with disabilities.

International human rights norms on the right to education presuppose that the Kenyan government is obliged to make education available, accessible, acceptable and adaptable for all children. These obligations are threefold;-

i.        The obligation to respect the right to education which would, for example, require Kenya to refrain from adopting any measures that would hinder or prevent persons with disabilities from accessing education;

ii.        The obligation to protect which would, for example, require Kenya to ensure that no other actor interferes with the access of education by persons with disabilities; and

iii.        The obligation to fulfil which would, for example, require Kenya to fulfil or provide for the realisation of the right to education for children with disabilities.

It is hence prudent to note, Kenyan policy makers have since time in memorial been excluding children with disabilities from mainstream curricula despite there being a number of legislations that provide otherwise. Children with disabilities who are not in the mainstream usually feel that they are discriminated and that they feel less important. In fact a report by the World Bank states that governments should invest more towards education for children with disabilities as educating this group will make the difference in terms of the person being independent. Therefore, exclusion, which is very rampant in the Kenyan system, should be discarded and inclusive education, where children are allowed to participate, should be the way forward.

About the Author:
William Aseka Oluchina has a Bachelors of Law degree from Catholic University of Eastern Africa (CUEA). He works as a Program Assistant at Governance Consulting in charge of Human Rights Advocacy for Children with Disabilities and working as a Research Assistant at Musyoki Mogaka & Company Advocates. His research interest: human rights law in Kenya.