[2013] KEHC 6002 (KLR)

MMM v Permanent Secretary, Ministry of Education & 2 others (Constitutional Petition 133 of 2013) [2013] KEHC 6002 (KLR) (Constitutional and Human Rights) (1 November 2013) (Judgment)

MMM v Permanent Secretary, Ministry of Education & 2 others [2013] eKLR

Neutral citation: [2013] KEHC 6002 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Constitutional and Human Rights

Constitutional Petition 133 of 2013

I Lenaola, J

November 1, 2013

Between

MMM

Petitioner

and

Permanent Secretary, Ministry of Education

1st Respondent

Attorney General

2nd Respondent

Cabinet Secretary, Education

3rd Respondent

States requirement to be practical in the realization of the socio-economic rights within available resources and allocation

The petition was about the realization of the right to free and compulsory secondary education. The court held that while socio-economic rights were justiciable, States were required to apply as much practicability as possible in the realization of those rights and within the available resources and allocation thereof. The court found that the respondents had failed to demonstrate concrete policy measures, guidelines and the progress made by the Government towards the realization of economic rights and particularly the right to education. The court also highlighted issues that had to be brought to the attention of the respondents while formulating policies towards the realization of the right to education.

Reported by Kakai Toili

Constitutional Law -fundamental rights and freedoms - socio­economic rights - right to education - where the petitioner argued that the respondents had an obligation of providing free and compulsory education to his son - argument by the respondents that the realization of socio-economic rights by the State was subject to the availability of resources at the State’s disposal - what was the scope of the Government’s duty of ensuring realization of socio-economic rights - Constitution of Kenya, 2010, articles 21(2), 23, 43 & 53(1)(b).Constitutional Law– fundamental rights and freedoms – enforcement of fundamental rights and freedoms - right to education – formulation of policies towards the realization of the right to education - what were the factors to consider while formulating policies towards the realization of the right to education – Constitution of Kenya, 2010, article 43(1)(f).

Brief facts The petition was about the realization of the right to free and compulsory secondary education. The petitioner complained that the respondents were determined to deny his son his right to education as provided for under article 43(1) and article 53(1)(b) of the Constitution of Kenya, 2010 and that the respondents had no interest in his socio- economic situation. He further contended that his son had a right to seek bursary from the respondents because under the Constitution and the Basic Education Act, the respondents were tasked with the responsibility of providing free and compulsory education as well as cushioning vulnerable families like his.Further, the petitioner stated that he tried to apply for a bursary from the Constituency Development Fund (CDF) in his locality but found that the kitty only offered a maximum of Kshs 4,000 per year yet his son’s school fee for the year 2013 alone was amounting to about Kshs 50,000. The petitioner added that he had used more than Kshs 30,000 so far to secure his son’s right to education and sought that the respondents pay the costs of the petition so that he could utilize the same for his son’s fees. That in the event there was another bursary kitty other than the CDF one, then the respondents ought to inform him about it and the form and manner of applying for the same. He concluded his petition stating that education was the process by which people acquired knowledge, skills, habits, values or attitudes and helped one develop an appreciation of their cultural heritage and live more satisfying lives and therefore to deny his son that right was unconstitutional, illegal and malicious.

Issues

What were the obligations of the State in providing access to socio­economic rights?

Whether the Government could rightfully rely on the issue of limited resources where a petitioner alleged that his son’s right to education had been infringed by the Government’s failure to give him adequate bursary.

What were the factors to consider while formulating policies towards the realization of the right to education?

Relevant provisions of the Law

Constitution of Kenya, 2010 Article 20(5) “In applying any right under article 43, if the State claims that it does not have the resources to implement the right, a court, tribunal or other authority shall be guided by the following principles— (a) it is the responsibility of the State to show that the resources are not available; (b) in allocating resources, the State shall give priority to ensuring the widest possible enjoyment of the right or fundamental freedom having regard to prevailing circumstances, including the vulnerability of particular groups or individuals; and (c) the court, tribunal or other authority may not interferewith a decision by a State organ concerning the allocation of available resources, solely on the basis that it would have reached a different conclusion.” Article 21(2) “(2) The State shall take legislative, policy and other measures, including the setting of standards, to achieve the progressive realization of the rights guaranteed under article 43. ” Article 43 “(1) Every person has the right — (a) to the highest attainable standard of health, which includes the right to health care services, including reproductive health care; (b) to accessible and adequate housing, and to reasonable standards of sanitation; (c) to be free from hunger, and to have adequate food of acceptable quality; (d) to clean and safe water in adequate quantities; (e) to social security; and (f ) to education. (2) A person shall not be denied emergency medical treatment. (3) The State shall provide appropriate social security to persons who are unable to support themselves and their dependants.”

Held 1. For a very long time, socio-economic rights were regarded as secondary rights while civil and political rights were considered absolute. With the advent of various international covenants such as the International Covenant on Economic, Social and Cultural Rights, socio-economic rights became part of Kenya’s primary law through the Constitution of Kenya, 2010 and they were at par with other fundamental rights. They were thus provided for under article 43 of the Constitution.2. Article 21 of the Constitution had to guide the court while looking at the Government’s efforts in achieving the progressive realization of the socio-economic rights: legislative steps, policy and other measures and the setting of standards. While socio-economic rights were clearly justiciable, states were required to apply as much practicability as possible in the realization of those rights and within the available resources and allocation thereof.3. The respondents had failed to demonstrate concrete policy measures, guidelines and the progress made by the Government towards the realization of economic rights and particularly the right to education. While there would have been a department within the Education Ministry which handled cases of needy students, the Government had to be seen to take firm steps in achieving the right to education generally. That was despite the fact that there was a policy dubbed “the free primary education”programme which did not cover secondary education. It was important and fundamental for the Government to demonstrate its political and financial commitment in that regard and the actions taken towards the progressive realization of the right to education in a holistic manner.4. The fact that realization over time, or in other words progressively, was foreseen under the International Covenant on Economic, Social and Cultural Rights was not to be misinterpreted as depriving the obligation of all meaningful content. It was on the one hand a necessary flexibility device, reflecting the realities of the real world and the difficulties involved for any country in ensuring full realization of economic, social and cultural rights. On the other hand, the phrase had to be read in light of the overall objective of the Covenant which was to establish clear obligations for state parties in respect of the full realization of the rights in question. It thus imposed an obligation to move as expeditiously and effectively as possible towards that goal. Moreover, any deliberately retrogressive measures in that regard would require the most careful consideration and would need to be fully justified by reference to the totality of the rights provided for in the Covenant and in the context of the full use of the maximum available resources (Government of the Republic of South Africa v Grootboom CCT 11/00).5. Measuring a state’s performance in the implementation of the right to education was an onerous task in the absence of generally accepted criteria, benchmarks and methodology for evaluating the adequacy and effectiveness of steps taken towards its realization. Developing the core competence for measuring implementation was decidedly crucial considering all variables involved and the different spheres of Government involved in this determination.6. Whereas the instant case was not the right case to expound on the meaning of the right to education under article 43(1)(f ) of the Constitution, the issue was limited to the right to a bursary and the arguments made were very narrow. Therefore, the following issues had to be brought to the attention of the respondents while formulating policies towards the realization of that right; the obligation of progressive achievement existed independent of the increase in resources. That meant that the State had to effectively use the resources available and not wait for increased resources before implementing the right to education.

it was no excuse for the State to claim that one socio-­economic right was subordinated to another; for example that the right to basic education (and the laptop project for example) had to override the right to housing or that the right to basic education was more important than the right to further education. Policies had to be designed and resources applied in a meaningful, practical and result based formulae than the focus on one for political or other reasons.

there could be need for the Ministry of Education to adopt an incremental approach to implementation as was happening but it needed a structure publicised framework.

7. The respondents could avoid mass litigation by setting out clear policies that were indicative of their appreciation that socio­economic rights were there to stay. The defence of progressive realization could not be used for too long. Article 43 of the Constitution was indeed alive and had started the run towards full realisation as opposed to a slow shuffle in the name of progressive realisation.8. The only information before court was that there was a bursary fund at the national and constituency level while the petitioner stated that the CDF bursary kitty was only willing to offer Kshs 4,000 per annum. Whether that amount was reasonable enough in gearing towards the goal to attain the progressive realization of the right to education was not a question that could be answered by the court but by the relevant Ministry, because very many considerations must have gone into place to establish the criteria and that criteria had not been placed before court.9. It was the duty of the petitioner to demonstrate that his son’s right to education had been infringed in a way that would call for the express intervention of the court. That was because a constitutional petition had to state, with reasonable precision, the provisions of the Constitution which were alleged to have been contravened and the manner in which they were infringed. (Trusted Society of Human Rights Alliance v Attorney General & 2 others Petition 229 of 2012. )10. The very fact that the petitioner’s son was admitted to the school and the school indeed accepted his needy status and the fact that some money was procured from the CDF kitty could not be seen as an infringement on his right to education. However, the petitioner still deserved a remedy and under article 23 of the Constitution, the court was obligated to grant an appropriate relief where a matter deserving of it was brought to its attention.

Orders

The 1st and 3rd Respondents were ordered to file a report within 30 days indicating what measures they had taken upon the Petitioner’s application for a bursary for his son’s school fees.

The Petitioner was to file a report within 30 days indicating the responses from his local CDF on any assistance to him for purposes of paying school fees.

Final orders were to be made upon receipt of the reports.

No party had succeeded or lost and so each had to pay its own costs. Cases

Citations Cases Matthew Okwando v The Minister of Health and Medical Services (Petition No 94 of 2012) — Explained

Mumbi Ngugi, J held in Mitubell Welfare Society v The Attorney General & 2 others (Petition 164 of 2011) — Explained

Trusted Society of Human Rights Alliance v The Attorney General & 2 others (Petition No 229 of 2012) — Explained

Section 27 and 2 others v Minister for Education (Case No 24565 of 2012) — Explained

South Africa v Grootboom (CCT 11/00) — Explained

Statutes Constitution of Kenya, 2010 — article 20(5); 21(2); 23; 43(1); 53(1)(b) — Interpreted

AdvocatesMiss Mwangi for Respondent

Judgment

1. The petition herein is dated the 25/2/2013 and is supported by an affidavit sworn by the petitioner on his own behalf. The petitioner states that he is the father of one, MBM, who in February 2013 was offered a Form 1 slot to further his education at [Particulars Withheld] Boys High School.

2. The petitioner simultaneously with the petition filed an application for interim reliefs and this court ordered the respondents to ensure that the Form 1 slot for MBM was reserved for his admission later and pending inter partes hearing. After the inter partes hearing a break-down of the school fees for the 1st term was made and it was ordered that the petitioner would pay a first installment of shs 20,000 to the school by 11/3/2013 and a subsequent shs 10,000 by 11/4/2013 after which directions would be given by the Court on the 19/4/2013 the date when the issue of school fees for the year 2013 was to be settled.

3. Later, the petitioner filed an application dated 17/6/2013 and in the said application he sought that the Cabinet Secretary of Education should be enjoined in this matter, which prayer was granted by consent of parties.

4. The petitioner now contends that the Principal of [Particulars Withheld] Boys High School initially declined to admit his son for the reason that he was unable to secure the required school fees. He adds that for reasons beyond his control, his business suffered a major setback and this has impacted on his inability to raise requisite funds. The petitioner seeks the indulgence of this court to enable him organize himself as he has other school going children, but his prayer is that his own dire circumstances should not deny or affect the future of his son’s secondary education.

5. The petitioner has added that prior to moving this court, he made an effort to have this issue resolved and to that end he sought audience with the Nyeri County Director of Education, one Mr Harrison, as well as the Director of Secondary Schools based at Jogoo House, one M Masese, to no avail.

6. The petitioner also complains that the respondents are determined to deny his son his right to education as provided for in article 43(1) and article 53(1)(b) of the Constitution and he believes that the respondents have no interest in his socio-economic situation and contends that his son has a right to seek bursary from the respondents because under the Constitution and the Basic Education Act, the respondents are tasked with the responsibility of providing free and compulsory education as well as cushioning vulnerable families like his.

7. Further, that he tried to apply for a bursary from the Constituency Development Fund in his locality but found that the kitty only offered a maximum of shs 4,000 per year yet his son’s school fee for the year 2013 alone was amounting to about shs 50,000. The petitioner adds that he has used more than shs 30,000 so far to secure his son’s right to education and seeks that the respondents should pay the costs of the petition so that he may utilize the same for his son’s fees. That in the event there is another bursary kitty other than the CDF one, then the respondents ought to inform him about it and the form and manner of applying for the same.

8. He concludes that education is the process by which people acquire knowledge, skills, habits, values or attitudes and helps one develop an appreciation of their cultural heritage and live more satisfying lives and therefore to deny his son this right is unconstitutional, illegal and malicious. It is for these reasons that the petitioner prays for the following orders:“a)That the respondents [should] award his son MBM an entire High School Education Bursary (sic)b)Costs of the suit”

The Respondents’ Case 9. The respondents state that this petition is misconceived and an abuse of court process and that it does not disclose any cause of action against the respondents and does not disclose any constitutional violation or breach by the respondents. The respondents contend that the petitioner knows the procedure of accessing a bursary for his son but has not demonstrated to this court that he has applied for one.

10. The respondents also add that the government is doing its best to meet its obligations as stipulated in article 43 of the Constitution which deals with socio-economic rights and in doing so it has set up a bursary fund at the National and Constituency level for needy students. As such the petitioner should follow the due process just like other Kenyans have done.

11. The respondents conclude that the realization of socio-economic rights by the state is subject to the availability of resources at the state’s disposal. They add that there are many parents who are struggling to keep their children in school and the petitioner should not be an exemption. The petitioner’s rely on the holding in Matthew Okwando v Minister of Health and Medical Services Petition No 94 of 2012 where the court, and of relevance to this matter stated as follows;“It is not unreasonable for the petitioner and other concerned Kenyans to demand that a concrete policy framework be rolled out and implemented to address the containment and treatment of various health afflictions. These, however, are matters of policy which the State is expected to address in light of its clear constitutional obligations. In the absence of a focused dispute for resolution by the court, i am reluctant to express myself on the broad matters raised in the Submissions unless there is sufficient material that there has been a violation of the Constitution and the court is required to act to provide the requisite relief.”

12. The respondents therefore seek that the petition be dismissed with costs.

Determination 13. For a very long time socio-economic rights were regarded as secondary rights while civil and political rights were considered absolute. With the advent of various International Covenants such as the International Covenant on Economic Social and Cultural Rights Socio-Economic Rights are now part of Kenya’s primary law through the Constitution of Kenya, 2010 and they are now at par with other fundamental rights. They are provided for in article 43 of the Constitution which states that;“Every person has the right—(a)to the highest attainable standard of health, which includes the right to health care services, including reproductive health care;(b)to accessible and adequate housing, and to reasonable standards of sanitation;(c)to be free from hunger, and to have adequate food of acceptable quality;(d)to clean and safe water in adequate quantities;(e)to social security; and(f)to education.2. A person shall not be denied emergency medical treatment.3. The State shall provide appropriate social security to persons who are unable to support themselves and their dependants.”

14. The Application of the rights provided for in article 43 of the Constitution is also articulated in article 20(5) of the Constitution which provides that;“In applying any right under article 43, if the State claims that it does not have the resources to implement the right, a court, tribunal or other authority shall be guided by the following principles—(a)it is the responsibility of the State to show that the resources are not available;(b)in allocating resources, the State shall give priority to ensuring the widest possible enjoyment of the right or fundamental freedom having regard to prevailing circumstances, including the vulnerability of particular groups or individuals; and(c)the court, tribunal or other authority may not interfere with a decision by a State organ concerning the allocation of available resources, solely on the basis that it would have reached a different conclusion.”Article 21(2) of the Constitution also provides that;“(2)The State shall take legislative, policy and other measures, including the setting of standards, to achieve the progressive realization of the rights guaranteed under article 43. ”

15. Article 21 as illustrated above draws us to look at the following in view of the Government’s efforts in achieving the progressive realization of these socio-economic rights: legislative steps, policy and other measures and the setting of standards. While socio­economic rights are therefore clearly justiciable, States are required to apply as much practicability as possible in the realization of these rights and within the available resources and allocation thereof.

16. But Mumbi Ngugi, J held in Mitubell Welfare Society v Attorney General & 2 others Petition No 164 of 2011 that;“The argument that socio-economic rights cannot be claimed at this point two years after the promulgation of the Constitution ignores the fact that no provisions of the Constitution is intended to wait until the state feels it is ready to meet its constitutional obligations. Article 21 and 43 require that there should be “progressive realization” of socio- economic rights, implying that the state must be seen to be taking steps, and I must add be seen to take steps towards realization of these rights granted also that these rights are progressive in nature, but there is a constitutional obligation on the state, when confronted with a matter such as this, to go beyond the standard objection....Its obligation requires that it assists the court by showing if, and how, it is addressing or intends to address the rights of citizens to the attainment of the socio-economic rights, and what policies, if any it has put in place to ensure that the rights are realized progressively and how the petitioners in this case fit into its policies and plans.”

17. I wholly agree with the learned judge and I should now pose the question whether the respondents have fulfilled their obligations in accordance with article 43 and 21 of the Constitution in the context of the petitioner’s complaints in this case. The respondents submit that the Government is doing its best to meet its obligations and in terms of the availability of resources they state that it has set up bursary funds at both national and constituency levels to assist needy students like the petitioner’s son.

18. Sadly, the respondents have failed to demonstrate concrete policy measures, guidelines and the progress made by the Government towards the realization of economic rights and particularly the right to education. While I would like to believe that there must be a Department within the Education Ministry which handles cases of needy students, the Government must be seen to take firm steps in achieving the right to education generally and I say so cognizant of the fact that there is a policy dubbed “the free primary education”programme which does not cover secondary education. That fact notwithstanding, it is important and fundamental that the Government demonstrates its political and financial commitment in that regard and the actions taken towards the progressive realization of the right to education in a holistic manner.

19. In the oft-quoted case South African case of Government of the Republic of South Africa v Grootboom Case CCT 11/00 it was held that;“Nevertheless, the fact that realization over time, or in other words progressively, is foreseen under the Covenant should not be misinterpreted as depriving the obligation of all meaningful content. It is on the one hand a necessary flexibility device, reflecting the realities of the real world and the difficulties involved for any country in ensuring full realization of economic, social and cultural rights. On the other hand, the phrase must be read in the light of the overall objective, indeed the raison d’tre, of the Covenant which is to establish clear obligations for States parties in respect of the full realization of the rights in question. It thus imposes an obligation to move as expeditiously and effectively as possible towards that goal. Moreover, any deliberately retrogressive measures in that regard would require the most careful consideration and would need to be fully justified by reference to the totality of the rights provided for in the Covenant and in the context of the full use of the maximum available resources”

20. I adopt these words as if they were mine and would add that measuring a State’s performance in the implementation of the right to education is an onerous task in the absence of generally accepted criteria, benchmarks and methodology for evaluating the adequacy and effectiveness of steps taken towards its realization. Developing the core competence for measuring implementation is decidedly crucial considering all variables involved and the different spheres of Government involved in this determination.Further, whereas this may not be the right case to extrapolate on the meaning of the right to education under article 43(f) (the issue here is limited to the right to a bursary and the arguments made were very narrow), the following issues need to be brought to the attention of the respondents as they formulate policies towards the realisation of that right;i)the obligation of progressive achievement exists independently of the increase in resources (Limburg Principles on the implementation of the International Covenants on Economic, Social and Cultural Rights) This means that the State must effectively use the resources available and not wait for increased resources (the “when the funds are available” argument) before implementing the right to education.ii)It is no excuse for the State to claim that one socio-economic right is subordinated to another; for example that the right to basic education (and the laptop project for example) must override the right to housing or that the right to basic education is more important than the right to further education. Policies must be designed and resources applied in a meaningful, practical and result based formulae than the focus on one for political or other reasons.iii)there may be need for the Ministry of Education to adopt an incremental approach to implementation as is happening now but it needs a structure, publicised framework.I have deliberately digressed to state the above because the Respondents can avoid an avalanche of litigation by setting out clear policies that are indicative of their appreciation that socio- economic rights are here to stay. The defence of progressive realisation may not be here for too long and other judgment of this court are clear in that regard. In South Africa for example, in the case of Section 27 and 2 others v Minister for Education, Case No 24565 of 2012, Kollapen J sitting at the High Court in South Africa at North Gauteng made declarations that included that the failure by the Limpopo Department of Education and the Department of Basic Education to provide text books to schools in Limpopo was a violation of the right to basic education, and that the two Departments should develop a ‘catch-up/remedial’ plan for affected Grade 10 learners in Limpopo. The court went even further to demand updates on how the orders would be implemented.

21. Let this judgment therefore be a wake up call to the respondents that article 43 of the Constitution does not sit there like a defected football player who has lost a match. It is indeed alive and has started the run towards full realisation as opposed to a slow shuffle in the name of progressive realisation.

22. Turning back to the present petition, the only information i have from the respondents is that there is a bursary fund at the National and Constituency level while the Petitioner states that the CDF Bursary Kitty was only willing to offer shs 4,000 per annum. Whether this amount is reasonable enough in gearing towards the goal to attain the progressive realization of the right to education is not a question that can be answered by this court but by the relevant Ministry, because very many considerations must have gone into place to establish the criteria and that criteria has not been placed before me.

23. I note in any event that the petitioner is also a small scale businessman and while his spouse is employed, they have other school going children but this is a picture that sounds all too familiar fora majority of Kenyan families and homes today. The petitioner also states that he spent about shs 30,000 in filing this Petition, a large sum it looked at in the context of his explained dire economic situation but perhaps it is money well spent because the issues he has raised, albeit narrowly to his situation have implications beyond him.

24. But having said all the above, it is the duty of the petitioner to demonstrate that his son’s right to education has been infringed in a way that would call for the express intervention of this court. In the case of Trusted Society of Human Rights Alliance v The Attorney General & 2 othersPetition No 229 of 2012 it was held that;“This harkens to the rule of law enunciated in the famous case of Anarita Karimi Njeru v The Republic (1976-1980) 1 KLR 1272 and its progeny to the effect that a constitutional petition must state, with reasonable precision, the provisions of the Constitution which are alleged to have been contravened and the manner in which they are infringed. In that case, Justices Trevelyan and Hancox stated that: ‘We would, however, again stress that if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed’, and the manner in which they are alleged to be infringed.”The point made is that it is not enough to claim a right and alleged infringement but an obligation also exists to show with some measure of clarity that there is infringement of that right. A court cannot be left to pontificate on a theorization devoid of material particulars.

25. I say so because the evidence before this court shows that the Petitioner’s son’s slot at [Particulars Withheld] Boys High School was secured by an order of this court and subsequently I issued a further order to determine how the school fees for 2013 would be settled. When this matter came up for directions, the petitioner amended his stance and sought a full bursary for the year 2013 and the future for his son to be able to attend the said school.

26. The information before this court now shows that the petitioner in fact applied for a bursary through the Ministry of Education from the Constituency Bursary Committee on the 18/2/2013 before he moved the court. The application forms were received by the said High School with the Head teacher, a Mr Muriithi indicating that the petitioner’s son is indeed needy. It is unclear; to me what action was taken upon such determination was made.

27. However, the very fact that the petitioner’s son was admitted to the school and the school indeed accepted his needy status and the fact that some money was procured from the CDF Kitty should not be seen as an infringement on his right to education.

28. Having so said and noting my sentiments above regarding the need to have the right to education, I will not dismiss the petition. I say so because I believe that the petitioner still deserves of a remedy and under article 23 of the Constitution, this court is obligated to grant “an appropriate relief ” where a matter deserving of it is brought to its attention.

29. In the event, I will order as follows;i)Let the 1st and 3rd respondents within 30 days file a report indicating what measures they have taken upon the petitioner’s application for a bursary for his son’s school fees.ii)Let the petitioner also file a report within 30 days indicating the responses from his local CDF on any assistance to him for purposes of paying school fees.iii)Final orders will be made upon receipt of those reports.

30. No party has succeeded or lost and so each should pay its own costs.

31. Orders accordingly.

DATED, DELIVERED AND SIGNED AT NAIROBI THIS 1ST DAY OF NOVEMBER, 2013. ISAAC LENAOLAJUDGEIn the presence of:Irene – Court clerkPetitioner present in personMiss Mwangi for respondentOrderJudgment duly read.ISAAC LENAOLAJUDGEFurther OrderMention on 6/12/2013ISAAC LENAOLAJUDGE