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The Constitution of Kenya, if interpreted very plainly, both permits and justifies the existence of private schools.

This is clear both from the provisions that guarantee the freedom of assembly (and to some extent the freedom to religion – I will explain).

Private schools get their anchoring from the provision on freedom of assembly and our political leadership that makes the country lean towards a liberal economy (the private schools started by individuals in their private business and commitment to education and the religious ones associated with particular religious groups). On the other hand, public schools are started by communities and or government to serve public interests.

These dichotomies are essential for purposes of helping us understand the current status of education provision (access, equity and quality) in Kenya.

Article 53(b) explicitly provides for free and compulsory basic education. It is a function vested in the National Government.

Although we may not have had a noteworthy litigious discourse of the constitutionality of private schools, there have been murmurs around how much, if any, of public resources need to find their way into private schools.

From an arbiters’ stand point, it looks like the legal shield around private schools looks invincible and it finds its strength and amour in our model of economics as a nation.

In saying private schools are legal is like saying swimming is legal. The law need not explain why it is legal. Some things are legal simply because they do no harm, at least to the person or people who choose to freely engage in them.

Other things are legal and socially beneficial. Private schools are in the second category; they complement the public interest served through public education.

The question then is, why are we currently having murmurs of utilisation of public resources in providing education in private institutions (the extensive case of providing public capitation for students admitted in private universities)?

There are those who argue that private schools serve us all whether we are patrons in them or not by offering a choice without which public institutions would then hold a monopoly in providing education.
Does the offering of choice make education competitive? Does it affect price and or fees offering? Can education be likened to a product on the market?

To paraphrase Adam Smith (1776) who wrote: “In modern times, the diligence of public school teachers is more or less corrupted by circumstances, which render them more or less independent of their success and reputation in their particular profession.” This statement largely stands for itself strongly more than 230 years since it was written.

Parents who are not able to make the financial sacrifice to opt out of a public school in the neighbourhoods have to contend with the falling standards and quality for from an economic standpoint, private offers no option.

Also, if the learning environment and facilitation is not in the best interest and welfare of the child, the family is stuck with the public option for they have no capacity to question the qualification, practice quality and conduct of teachers even though their taxes pay the teachers directly.

—The writer is an education policy expert
—[email protected]