According to the Report of the Special Rapporteur on extreme poverty and human rights (2018) “privatization often involves the systematic elimination of human rights protections and further marginalization of the interests of low-income earners and those living in poverty.” Karl Thompson Defines Privatisation of education as a component where education services which were once owned and provided by the state are transferred to private companies, such as the transfer of educational assets and management to private companies, charities, or religious institutions.
In Kenya prior to 1990, the number of private schools was negligible. The 1980s were however characterised by reduced public expenditure on education due to the introduction of cost sharing policies instigated by the introduction of structural adjustment policies (SAPs). One of the visible outcomes of SAPs in the education sector was the reduced access to education for disadvantaged children, especially girls from the rural communities, the urban poor, and children with disabilities. This was also an era characterised by widening social and economic disparities that evidenced increasing levels of poverty.
The growth of private schools continued as a result of the introduction of free primary education (FPE) program in 2003. This increase is mostly attributed to the massive influx of students into public schools and resultant deterioration in quality due to over-burdened facilities. Other challenges experienced in public education included low teacher-pupil ratio, unavailability of learning facilities and poor learning environment especially in urban slums. Additionally, there were frequent teacher strikes, high cost (including hidden costs and additional charges and levies) of education and poor quality of education.
Of the approximately 500,000 children in Nairobi, 60% are thought to be enrolled in low-fee private schools mainly situated in informal settlements, where most households survive on less than $1 a day (Ngware, M. 2015). Similarly, in urban areas such as Nairobi, Eldoret and Mombasa, more than 50% of children attend so called “low-fee” private schools.
Between 2011 and 2017, public primary schools increased by 18.82% and public secondary schools increased by 71.54%. Conversely, private primary schools increased by 114% and secondary schools increased by 63 %. These figures do not include the large number of unregistered non-formal and informal schools, which would fall under this category as well. The analysis below by Oduor-Noah, L. (2019) clearly demonstrates the observed growth in private actors in education between 2011 and 2017.
The escalation in the number of private schools has been most severely felt in informal settlements. This is because urban informal settlements experience severe shortages in the supply of basic services including the provision of basic education services. Public schools are often found at the periphery of these settlements, making them inaccessible to especially younger children who face difficulties in navigating the long distances. Failure by the State to provide enough public primary schools has led to significant growth of low fee private schools which emerged to fill the supply gap. This sharp increase in private actors has therefore occurred without corresponding growth or improvements in public education.
The United Nations Committee on the Rights of the Child in its concluding observation on Kenya (2016) stated that “The low quality of education, and the rapid increase in private and informal schools, including those funded by foreign development aid, providing substandard education and deepening inequalities”. The growth of private actors has continued without the requisite monitoring and regulation by the state and demonstrates a tendency for inadequate planning and preparedness with the roll out of education reforms. Due to lack of adequate monitoring those who can access these schools are exposed to school environments and teaching methods of variable quality.
The lack of a stringent enforcement of the regulatory framework has left room for infringement of the right to education especially where commercial, for-profit actors are concerned. Additionally, of the over 4,000 low fee private schools in Kenya very few have been registered and are therefore operating illegally. According to stakeholders, at one point the government halted registration of APBET schools. The lack of a national database on specifically non-state schools makes it difficult for the schools to be monitored effectively. Inadequate resourcing of the APBET and quality assurance functions has led to limited enforcement of the APBET guidelines which further compounds the poor quality of education provided in APBET schools. Additionally, the state established and legitimized a 3rd tier of lower quality education without a long-term plan on how this level of schools would systematically improve in quality over a designated period. Furthermore, Kenya currently lacks guidelines around the oversight and implementation of education public private partnerships.
Types of private actors in Education in Kenya
- Low fee private schools
- Alternative Provision of Basic Education and Training (APBET)
- Community Schools
- Low fee commercial private schools
- Private schools
- Elite private schools
Regulatory Framework
In 2009 and 2016 respectively, the State launched the Alternative Provision of Basic Education and Training (APBET) Policy (2009) and Guidelines (2016) which provided for the existence of a third category of schools that would be situated in urban informal and other marginalized settlements. In February 2019, a positive step was made to revitalize this function with the mandate for regulating APBET schools moved to the National Council for Nomadic Education in Kenya (NACONEK).
The Abidjan Principles (2019) provide that “States must take all effective measures, including particularly the adoption and enforcement of effective regulatory measures, to ensure the realisation of the right to education where private actors are involved in the provision of education”. Additionally, Principle 45 states that “There is a strong presumption that retrogressive measures taken in relation to the right to public education are impermissible. If, in exceptional circumstances, retrogressive measures are taken, the State has the burden of proving that any such measure is in accordance with applicable human rights law and standard”.
