National Council of Churches of Kenya

MEMORANDUM TO THE TASK FORCE ON THE RE ALIGNMENT OF THE EDUCATION SECTOR TO THE NEW CONSTITUTION

Introduction

Through the Special Issue of the Kenya Gazette Vol CXIII No 11 dated 28 January 2011, the Minister for Education Prof Samuel Ongeri established a Task Force on the Realignment of the Education Sector to the New Constitution. The National Council of Churches of Kenya, being an interested party in the education sector, wishes to submit this memorandum to the Task Force for consideration.

A large number of schools in Kenya were established by the churches and missionary societies. As the post independence regime took over, some of the church schools were handed over, taken over or acquiesced to the Government of Kenya by the respective churches and church related organizations. The churches who established the schools taken over wholly or partially by the Government were recognized by the Education Act of 1968 as “sponsors”.

There has also been a practice in the Ministry of Education to refer to the Church as a “stakeholder” alongside the civil society organizations most of who have never established, maintained or operated a single school. However, the church maintains that it is an owner and partner in the education sector and not a mere “stakeholder”. Due recognition and weight of the views of the church must be seen as those of the investor. Mutual respect between the church and the state will be critical for meaningful partnership in provision of education in Kenya.

Terms of Reference for the Task Force

TOR 2(a): Implication of the new Constitution of Kenya on education

The new constitution has provided a very robust Bill of Human Rights. One of these rights is the right to private property. Article 40 provides that “subject to Article 65, every person has the right to, either individually or in association with others, acquire and own property of any description; and in any part of Kenya”. Article 40(2) protects the right to property from regulatory, arbitrary or any other form of deprivation of property by the state. Where deprivation occurs, the state is obligated to make “prompt payment in full, of just compensation to the person”. In this regards, it suffices to note that the state has been gradually nationalizing and depriving the church of some of its schools. Some churches have been asked to surrender the title deeds of their properties to the state in unclear circumstances and without any compensation. This is a gross violation of the rights of the Christian community who have invested billions of shillings in the education sector. This trend must be corrected as a matter of urgency.

The provisions of the new constitution omitted a key clause that safe-guarded the church interests in the education sector in the former constitution. Section 78 of the former constitution provided that a religious community had the right to establish a place of education at their own cost and propagate their faith therein. This section that was also enshrined in the Bomas and Wako drafts was deleted by the Committee of Experts. Churches and other religious organizations established schools as part of their God-given mandate to form the character of the students as well as educate them. This basic right of religious communities to establish a place of education at their own cost and propagate their faith therein must be guaranteed in the legal framework for the education sector.

TOR 2(b)(i) Relevance to Vision 2030

Values and moral fiber of the society

Under Vision 2030, three pillars are identified as key in attaining “a globally competitive and prosperous Kenya”. The economic, social and political pillars stand on and are supported by the often invisible foundation of values, and moral fiber of Kenya. Every person knows that a house built on a shaky foundation cannot stand any disturbance.

As such, the success or failure of attaining the vision 2030 lies first and foremost on digging and building a firm foundation. It is also well known that religious communities form the core vehicles for inculcating values and morals. In this regard we propose as follows:

• That religious education is made a compulsory and examinable subject from primary to secondary levels of education.
• That a Chaplain be appointed for each education institution as a means of transmission of morals, beliefs and strengthening the moral fiber of the Kenyan society.
• Those private schools are required to have a chaplaincy service as well.

The national values generally espoused in the new constitution and particularly as outlined in Article 10 of the new constitution should be taught in all levels of the education system. A revision of the curriculum should include the character formation and inculcation of values from pre-school to the tertiary level of education.

Public Private Partnership between the State and the Church

“Globally competitive quality, training and research for sustainable development” is the Vision 2030 goal on education. The strategic thrusts are access, quality, equity and science and technology and innovation (STI). The church, as a provider of education at all levels, is keen to partner with the state in achieving this vision through four main initiatives:

• Civic education should be included in the curriculum as a major component. It is wrong for the Government to allow foreign missions and the international community to define, fund and undertake civic education in Kenya. The government, through the education system, should teach civic education so that the future generations will understand their national values duties and rights.
• Government should provide incentives for private and church investors in the education sector.
• The church would wish to see the government recognize the ownership of the schools and negotiate mutually acceptable terms of agreement in the spirit of Vision 2030.
• Government should embrace Public Private Partnerships in the provision of education in Kenya. Such models have worked in other sectors such as the health sector partnership between the state and the church mission hospitals. For example, the construction of 560 secondary schools identified as a flagship project under vision 2030 could be undertaken through Public Private Partnership arrangement. Another example is the specific goal of raising secondary to university transition from 8 to 15 percent. Introduction of a Public Private Partnership where eligible students are issued with vouchers and are allowed to choose and pursue their education in the private schools, colleges and universities could achieve this in the medium term.

ToR 2(b)(iii) Structure of education system from Kindergarten to University

The structure of the education system requires some adjustments (Sessional Paper No 1 of 2005; 29). NCCK proposes the following changes:

Pre-school

Pre-School level of education should be made compulsory and be supported by government funding as part of basic education. Pre-school education should be provided for at least 2 years.

Primary school

Primary school education should be compulsory, supported by government funding (free primary education) and undertaken for 6 years.

Secondary education

Secondary education should be divided into two sections:

• Junior School should be undertaken for 3 years where students are exposed to all subjects in the curriculum.
• Senior School should be undertaken for another 3 years where students will be allowed to choose any of the following types of Senior Schools:  

  • Comprehensive, where students are offered all the subjects in Junior School without specialization;

  • Grammar School, where arts and humanities are emphasized;

  • Technical School, where technical subjects are emphasized; and

  • Talent School, where talents development subjects such as athletics, football and music, among others taught.
• Tertiary education should take three years where students specialize in one or more disciplines. This level will include colleges and university education.
• Adult education should be incorporated in the system from primary to university level with clear horizontal and vertical linkages. The current system where adult students learn together with younger one is not appropriate in a learning system.
• Village polytechnics should be run under the Ministry of Education and linked vertically and horizontally with the education system.
• Special needs education should be integrated and included in the education system and managed by the ministry of education
• All education institutions and processes, for both basic and higher education, should be the mandate of the Ministry of Education. The current situation where talent schools and youth polytechnics are managed by the Ministry of Youth and Sports is untenable.

ToR 2(b)(iv) Investment in education, both public and private

Government should fund all children regardless of the type of schools they attend

NCCK recommends that pupils’ or students’ education be funded by Government on a per capita basis whether the children are in private or county or national government schools. The current financing of education does not plan for any child in the private schools. However, it should be noted that there are no “private” or “public” children. Article 43(1)(f) provides that “every person has the right to education. Article 53(b) of the constitution of Kenya specifically provides that “every child has the right to free and compulsory education”. The new education system must therefore align itself to the new constitution and recognize the right of every child in Kenya to free and compulsory education. It therefore flows from this provision that the Government must provide funding of education of all children regardless of the school they choose to attend.

Government should support the private sector to invest in the education sector

The attitude of the government towards private investors in the education sector has been adverse at times. Many private education operators have had to undergo severe trials for their schools to survive the official red tape and sometimes open hostility from government officials. Due to the hostile environment for private schools, there is only a handful in Kenya. Such acts cannot help attain vision 2030.

To start with, the state should encourage the private sector to invest more in the secondary education level which has been an Achilles heel in the system. The government should provide support such as land; streamline licensing procedures, standardization and funding for the children’s education. Students from private schools have been competing for scarce opportunities in public schools. The recent introduction of equitable admission criteria in national schools was viewed by some as unlawful. Such policies should be transitional rather than permanent since they are not sustainable in the long run.

Government should respect the property rights of investors in the education sector

Private investments in the education and training sector should be protected and respected in line with the new constitution. For instance, the fact that the government or other actors have contributed financial and human resources to an Anglican school does not mean that the properties and ownership of the schools have been transferred to the Government.

In 1968 or thereabout, churches discussed with the state on the management of schools. The government assumed the management role while the schools remained owned by the churches. Churches who established the schools were referred to as “sponsors”, while the schools were referred to as “sponsored schools” and were listed in the Second Schedule of the Education Act of 1968. Since the Government started managing all sponsored schools there has been remarkable decline in the character and moral foundation of Kenya as a nation culminating in the Post Election Violence triggered by the disputed election results that occurred on 27 December 2007. Youths including some primary and secondary school students were identified as foot soldiers that raped women, sodomized men, murdered people, burnt property and caused breakdown of law and order never witnessed in Kenya before. Following the enactment of the new constitution, the church would like to re-consider the sponsored school arrangement afresh.

In principle, the NCCK proposes as follows:

• The churches that established schools that are referred to as “sponsored schools” shall assume 100 percent responsibility and management of all Schedule 2 schools under the Education Act. These schools shall be categorized as Private Not for Profit schools under the new education legal framework.
• Some of the sponsored schools that were listed under the First Schedule of the Education Act should be categorized as Private For-Profit Schools and their ownership and management reverted back to the churches that started them. These schools include Meru School, Meru Technical, and Shanzu College established by the Methodist Church, among others. These were listed as Schedule C schools during the colonial legal education laws and catered for students from European backgrounds.
• In line with the spirit of Vision 2030, the government and the church may consider entering into a Public Private Partnership (PPP) agreement concerning the education sector. The PPP would provide for a mutual understanding of obligations and contribution towards achieving the vision of the education sector for 2030 which is “to have globally competitive quality, training and research for sustainable development”.
• The PPPs would cover the following areas of cooperation:
• • Human resources such as teachers
  • Financial resources such as grants, student vouchers under per capita education financing model
  • Technical support
  • Support in learning materials

The new education framework should revise the categorization of schools

The current categories of schools should be reviewed so that it is re-aligned to the new constitution and realities. NCCK proposes the following categories of schools:

• The National Government Schools: Schools that were established and are managed with resources from the Government of Kenya. The national government should take full responsibility for such schools;
• Community Schools: Schools that were established and are managed with resources from communities they serve. Such schools will include Non Formal Education schools and other community initiated schools. The community should be clearly identified and shall be fully responsible for the school(s) they establish;
• Private For-Profit Schools: Schools that were established and are managed with resources from private persons or companies. The owners of the schools shall take full responsibility for their management and maintenance;
• Private Not-For-Profit Schools: Schools that were established by churches and other voluntary groups (Schools under the Second Schedule of the education Act). The parent church, religious or society shall take full responsibility for such schools; and
• County Government Schools: Schools established by Local Authorities under the Local Government Act in their areas of jurisdiction. Under the new constitution, the County Government should inherit, manage and maintain them accordingly.

The role of the National Government in education shall be guided by the Fourth Schedule of the Constitution of Kenya which states as follows:

“Part 1 – National Government

15. Education policy, standards, curricula, examinations and the granting of university charters.
16. Universities, tertiary educational institutions and other institutions of research and higher learning and primary schools , special education, secondary schools and special education institutions

Part 1 – County Government

• Pre-primary education, village polytechnics, home-craft centers and childcare facilities”.

However, the new constitution has provided a window that allows either level of government to legally transfer its responsibilities to the other level based on an agreement. Article 187 provides as follows:

Transfer of functions and powers between levels of government

187. (1) A function or power of government at one level may be transferred to a government at another level by agreement between the governments if—

• the function or power would be more effectively performed or exercised by the receiving government; and
• the transfer of the function or power is not prohibited by the legislation under which it is to be performed or exercised.

(2) If a function or power is transferred from a government at one level to a government at the other level—

• arrangements shall be put in place to ensure that the resources necessary for the performance of the function or exercise of the power are transferred; and
• constitutional responsibility for the performance of the function or exercise of the power shall remain with the government to which it is assigned by the Fourth Schedule.

It is therefore possible to transfer some of the powers of the national government like primary schools to the county government.

TOR 2(v) Institutional Management/Governance

Until a more viable arrangements which gives churches greater control of Schedule 2 Schools is negotiated, the current powers and responsibilities of the sponsor should be safeguarded

Under the Education Act, the sponsors have certain role and powers that include and are not limited to the following:

• Consultation with regard to staffing (section 8(3));
• Representation on the school management committees (3 persons) and Board of Governors (4 persons) of sponsored schools (section 9(1)(b) and 11(c));
• Appointment of the chairperson of the Board of Governors in consultation with the Sponsor (section 10(4)(2)(a));
• Preparation and recommendation of syllabus, books and other teaching aids (section 8(3)(c));
• Supervisory and advisory services to ensure religious education is conducted in accordance with the syllabus;
• Maintenance of religious traditions in each of such schools (section 8(1)).

At the minimum, the church would like that all the above provisions and any other that is recognized in the Education Act be safeguarded in the recommendations of the Task Force.

Governance of the Schedule 2 schools will be in the hands of the church 100 percent

NCCK proposes that the current policy concerning sponsored schools as provided for in the Education Act be reviewed and reversed forthwith. Consequently, the institutional governance of the sponsored schools shall be 100 percent in the hands of the church that established that school. As such, the appointment of the whole Board of Governors and School Management Committees shall be the responsibility of the Church that established the said school. Partnership with the Government shall be guided by the Public Private Partnership agreements that may be agreed upon between the state and the church.

Education Advisory Board

The government should establish a board to be known as the Kenya National Education Advisory Board that will advise the Government on legal and policy issues relating to education. Each of the 47 county governments should also have a County Education Advisory Board that will advise the respective county governments on matters relating to education legal and policy matters. In each national or county Advisory Boards, the Christian (both Catholic and Protestants) Muslims and Hindu faiths should be represented.

TOR 2(b)(vi) human capacity in education at all levels

Human resources affect both access and quality of education. NCCK therefore proposes that:

• As envisaged in Vision 2030, Kenya needs to reduce the teacher student ratio from the current 1:47 to 1:40.
• Secondly, Vision 2030 envisages the integration of the Pre-School education into primary education. This will require employment of the pre school teachers through the Teachers Service Commission. The training of preschool teachers should also be standardized and harmonized nationally.
• There is need to deploy graduate teachers to secondary and primary schools in the long term as Kenya improves the competence of teachers handling basic education.
• Currently, any person can teach in any university and colleges in Kenya as long as they have a minimum university background. NCCK proposes that all teachers at the university and college level should undertake a mandatory minimum Diploma in Education. The Diploma will expose them to teaching philosophy, psychology, administration, methodology, and curriculum development. Teachers who are promoted from primary or secondary levels to teach in colleges and/or universities should also be retrained to equip them with skills to handle mature students.
• Chaplaincy should be recognized officially as a category of employment within the cadres of the Teachers Service Commission. A model similar to that used in the armed forces chaplaincy services.

TOR 2(b)(ix) Moulding and mentorship values

As highlighted under TOR 2(b)(i), the Vision 2030 implementation assumes that there will be a sound value and moral fiber to hold the country together. NCCK proposes that:

• The church is keen to partner with the government to offer chaplaincy, guidance and counseling services to both students and the education sector workers.
• Schools should be encouraged to have apprenticeship programs which expose the student to the market place where they are attached to role model.
• Religious education is a compulsory and examinable subject from primary to secondary levels as a transmitter of values and morals that are the bedrock of the pillars of Vision 2030. This should further be strengthened by the deployment of chaplains in all schools.
• History is equally a critical subject that will be necessary in shaping the world view of Kenyans. It should therefore be made compulsory and examinable at primary and secondary levels. It is only a people who know who they are, where they are coming from and where they are going that will succeed in the 21st century.

Conclusion

The education, training and research sector is facing numerous challenges. In these challenges, lie great opportunities towards attainment of Vision 2030 goals. Church and state partnership and mutual understanding could fast track the delivery of Vision 2030 goals on education.

SIGNED at NAIROBI this 25th day of May 2011.
 

Rev Canon Peter Karanja
General Secretary