Uncertainty after court declares university funding model illegal

Education Cabinet Secretary Julius Ogamba. [File, Standard]

The government suffered a major setback Friday after the court quashed the new multi-billion shilling university funding plan introduced by President William Ruto, which was expected to resolve the financing crisis in the institutions of higher learning.

The verdict by Justice Chacha Mwita of the Milimani Constitutional and Human Rights Division offers relief to parents and thousands of students who had protested their categorisation in higher bands with a heavy fee burden.

However, the court decision spells disappointment for many parents whose students were placed in lower bands with least fees obligations, benefiting from the model’s graduated support favouring the neediest families.

The funding model, unveiled by President Ruto on May 3, 2023, aimed to allocate financial aid to university and TVET students based on their household income.

The judge criticised the government’s shift of responsibility to parents, stating that it is the government’s duty to fund public universities.

Transferring this burden to parents, he added, violated the Constitution.

Justice Mwita ruled that the model was unconstitutional, lacked a legal framework, was discriminatory, and failed to meet legal requirement for public participation.

“A declaration is hereby issued that the new model is unconstitutional due to lack of public participation,” Justice Mwita stated.

The court issued an order barring Education Cabinet Secretary Julius Ogamba, the Attorney General, the Higher Education Loans Board (HELB), the Trustees of the Universities Fund Kenya, and the Kenya Universities and Colleges Central Placement Service (KUCPS) from implementing the new system until they comply with all legal requirements.

“An order is hereby issued prohibiting the government from implementing the new funding model until it meets constitutional requirements, including public participation and proper legal grounding,” Justice Mwita ruled.

The petition was filed by several petitioners, including the Kenya Human Rights Commission (KHRC), the Elimu Bora Working Group, Boaz Waruku, and the Students Caucus.

The court found that the funding model violated multiple constitutional provisions, particularly Section 53 of the Universities Act, which requires any higher education funding system to be legally grounded and developed with public participation.

“A declaration is hereby issued that the new higher education funding model, as it stands, contravenes Article 53 of the Constitution and the mandate of the Higher Education Loans Board, and is therefore unlawful,” Justice Mwita said.

The court emphasized that the government had failed to comply with necessary legal provisions when formulating the model.

“The new funding model introduces a specific allocation of higher education resources without a proper statute, creating a funding mechanism that is in direct conflict with the law,” Justice Mwita stated.

“The model, as it stands, is not anchored on any law. Its composition and its procedure remain unknown.” 

One of the key issues identified by Justice Mwita was the discriminatory nature of the model.

The system divides students into categories based on factors such as the type of school they attended, their age, and their household income. Justice Mwita also criticized the model, known as Variable Scholarship and Loan Funding (VSLF), for being biased, as it introduces classifications based on perceived financial ability

“It’s unrealistic, if not unfair, to consider someone earning Sh70,000 per month as needy, considering the level of taxation in the country,” Mwita remarked.

The court also found that these classifications violated Article 27 of the Constitution, which guarantees equality and non-discrimination before the law.

“The introduction of these arbitrary classes based on school type, age, and household income is a direct violation of the principle of equality enshrined in the Constitution. It discriminates against students and their families based on factors that should not influence access to education,” Justice Mwita explained.

Violation of rights

He emphasized that all people are equal before the law and that one’s social standing should not be used as a basis for discrimination.

Although the categorization might seem innocuous, the judge pointed out that it was unclear how it was achieved.

The model also came under scrutiny for potentially violating the rights of students who had already planned their academic paths based on the previous funding system.

The court highlighted that many students had made crucial educational and financial decisions with the understanding that they would receive support under the old model.

The sudden introduction of the new funding criteria was seen as a breach of students’ educational rights.

“The current group of students had already planned their lives and educational futures based on the previous system. The abrupt implementation of this new model is a violation of their rights to access education as guaranteed under the Constitution,” said the judge.

In addition to these constitutional violations, the court ruled that the government had failed to adhere to the principles of public participation when creating the new funding model.

“The government did not involve the public in the formulation of this model, despite its fundamental effects on the education system. The failure to engage with stakeholders, including students, parents, and educational bodies, was a clear violation of the public participation requirement,” he declared.

The court also noted that the lack of parliamentary oversight in creating the model contravened Article 95 of the Constitution, which grants Parliament the authority to scrutinize and approve laws affecting the public.

As a result, the court issued several key declarations: that the new higher education funding model violates Article 53 of the Constitution, which guarantees the right to education, and is unlawful due to its lack of statutory basis.

The court ruled that the model’s classification system, based on arbitrary factors like school type, age, and household income, was discriminatory and violated students’ legitimate expectations of equal treatment under the law.