Threading the needle: assessing the balance between the state’s legal obligations and the progressive realisation of the right to education in Kenya

Abstract

This study explores the realisation of the right to education in Kenya, focusing on the challenges posed by the doctrine of separation of powers and its interaction with the political question doctrine, particularly concerning economic, social, and cultural (ESC) rights. It examines how the inclusion of ESC rights in the Bill of Rights under the Kenyan Constitution does not breach the separation of powers, despite the long-standing belief that such rights are non-justiciable due to their association with resource allocation, which traditionally falls under the purview of political actors. Through an analysis of case law, including landmark rulings like Ndoria Stephen v Minister of Education, and international frameworks such as General Comment No. 13 from the Committee on Economic, Social, and Cultural Rights (CESCR), this study scrutinises judicial remedies like structural interdicts in ensuring state accountability. A comparison of Kenya’s approach with South Africa's progressive legal framework highlights best practices for balancing immediate and long-term obligations in the right to education. South Africa’s use of minimum core obligations in education serves as a benchmark for Kenya's legal and policy reforms. The study also investigates Kenya’s historical and contemporary efforts to fulfill the right to education since independence, analysing the impact of international instruments and the 2010 Constitution. Additionally, it critiques the Kenyan government’s recurrent reliance on resource constraints as justification for inadequate educational provisions, calling for the establishment of a minimum core of immediate obligations that the state must meet regardless of financial limitations. This study underscores the need for stronger judicial oversight to ensure that the Executive is held accountable beyond policy formulation, focusing on tangible and sustainable improvements in access to quality education. Ultimately, this work aims to contribute to a more robust legal framework that promotes justice, equality, long-term sustainability, and transparency in realizing children’s right to education in Kenya, while addressing challenges related to mismanagement and corruption.