The Right to Basic Education for Orphans and Vulnerable Children: Is Kenya Up to the Challenge?

Abstract

The right to basic education is a key component of a child’s survival, protection and development. This is particularly important with regard to Orphaned and Vulnerable Children (OVCs). It is for this reason that international human rights law encapsulated in, among others, the Universal Declaration of Human Rights (UDHR), International Covenant on Social, Economic and Cultural Rights (ICESCR), the United Nations Convention on Rights of the Child (CRC) and Convention on Elimination of All forms of Discrimination Against Women (CEDAW), maintain that states have an obligation to promote, fulfil and protect the right to basic education. Kenya is not only a signatory to all these human rights instruments but has gone further to integrate international law through its novel constitutional dispensation which came into force in 2010. In 2013, the Kenyan parliament enacted the Basic Education Act and therefore meeting its obligation under international law which required state parties to protect the right to basic education. Despite the enactment of a specific legislation to address the plight of OVCs, the country’s protection of the core content of the right to basic education in terms of adaptability, accessibility and availability has not been realised. This study postulates that this is because the right to basic education has been interpreted to be progressive which means that it can be limited anytime resources are in short supply. As a consequence, many OVCs are not able to access basic education for various reasons, including, poverty, adverse effects of HIV/AIDS, child labour, and biased cultural norms. While looking at Kenya, Canada and South Africa, the researcher interrogates the extent to which these countries have gone to address the right to basic education in their respective jurisdictions. The study contends that South Africa and Canada have made better strides in the realization of basic education for OVCs. The researcher thence suggests best practices and programmes based on a human rights approach to promote the right to basic education in Kenya. Some of the recommendations include: legislative and policy reforms; harmonization of judicial decisions; and addressing harmful cultural practices. Generally, the study evaluates the successes and challenges of these international instruments and national legislation in addressing the plight of OVCs with respect to their right to basic education and suggests recommendations for innovative policies in human rights monitoring, protection and promotion which must be adopted to protect OVCs.