Towards a Human Rights Approach to Realization of Free Primary Education in Kenya

Abstract

The right to free primary education is a fundamental human right entrenched in the corpus of international human rights law, the Constitution of Kenya 2010 and domestic legislation. This study critically examines the effectiveness of the legal and policy framework governing realisation of the right to free primary education in Kenya in facilitating education of children from poor and marginalised backgrounds. The study establishes the fundamental linkage between realisation of this right, poverty reduction and social justice. It further evaluates the extent of realisation of the normative elements of the right to free primary education, notably, accessibility, acceptability, availability and adaptability. It highlights the progress made by the State and non-state actors and examines the gaps in the law and policy and other factors impeding realisation of the right to free primary education by children from poor and marginalised backgrounds. The study further proposes legislative, policy, social and best practices interventions to enhance the realisation of the right. This study is largely based on the theory of distributive justice propounded by John Rawls. The study also examines criticisms and arguments projected by the opponents of this theory. The study proposes the adoption of the Rights Based Approach to poverty and inequalities reduction in facilitating realisation of the right. Underpinned by the pillars of accountability; participation; interdependence of rights; and equality and non-discrimination, this Approach resonates well with the concept of social justice. The Approach also has universally recognised benchmarks which ensure that right holders participate in prioritizing programmes that will facilitate realisation of the right. Finally, the study gives a research summary and presents conclusions drawn from the research.