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The government has in the last week been engaged in crisis meetings after it emerged that 25,000 institutions of higher learning sponsored by the government are at risk of missing fees after the High Court declared the University Funding Model unconstitutional.

Education Cabinet Secretary Julius Migos Ogamba said they will next week appeal the ruling to have the decision to allow the government to address itself to the issues raised by judges to avert a situation where students will be unable to go back to school when the new semester commences.

Further, he said he will, from Monday next week convene a meeting with vice-chancellors to appeal to them to allow the students to continue with their studies as they try to deal with outstanding issues.

So far only Sh2.8 billion of the Sh13 billion in scholarships to the universities has been disbursed leaving universities with a balance of Sh10.2 billion.

For loans, only Sh5 billion out of the Sh16 billion earmarked for the semester has been disbursed to the universities.

The model, which was introduced in September 2023, currently supports 234,811 students admitted in 2023 and 2024. In 2023, 113,075 students applied for funding, while applications rose to 121,736 in 2024

He said: “We think this is a bad judgment and we are proceeding to appeal and have a stay on this judgment because we believe that normally when you find a programme being implemented as unconstitutional you give it a transitional period so that people can work around that issue. The import of this ruling is that if it is allowed to proceed, students will not go to school next year,” said Ogamba in an interview with PD Wikendi.

Last week the High Court declared the new University Funding Model unconstitutional and discriminatory on grounds that public participation was not done.

Justice Chacha Mwita said the model also known as Variable Scholarship and Loan Funding (VSLF) is biased as it introduces clusters based on perceived financial ability.

Under the new funding model band 1 has students whose monthly income does not exceed Sh5,995 while band 2 ranges from Sh5,995 to Sh23,670.

Students from families with a monthly income of between Sh23,671 and Sh70,000 are placed in band 3 while those between Sh70,000 and Sh119,999 are in bands 4 and 5 which receive the least funding in terms of scholarships but are high on loans for students whose families earn above Sh120,000.

“It’s unrealistic if not unfair to consider someone earning Sh70,000 per month as needy considering the level of taxation in the country,” said Mwita.

In his ruling, Mwita said every person is equal before the law and the State is prohibited from directly discriminating against any person on any grounds.

He said one’s social standing may not be a ground for treating someone differently, noting that under the old model, all students were treated equally.

“The new one has introduced clusters labelling students as needy thus creating discrimination and distinction based on ones earning,” he said.

But speaking to PD Wikendi, Ogamba termed the ruling as discriminatory, unacceptable and not well grounded and thought out as the courts should have given the government a window period to deal with issues raised.

 He claimed the understanding of the courts on the issue of banding was wrong because funding is pegged bands, on  the right to education as outlined in Article 153 of the Constitution.

The CS noted that the interpretation of the court is wrong because it gives the minister powers to come up with measures on how much should be paid as school fees while on the issue of public participation , he said the court erred as this was done. He explained the Presidential Working Sector on Education Reforms went round the country collecting views on it and thus the decision of the court is unacceptable.

President Ruto formed a 129-member team to review the model within eight weeks following the widespread opposition.

The committee chaired by Prof Japheth Micheni Ntiba, has however exceeded its eight-week timeline, with findings yet to be delivered more than 12 weeks since its launch.

CS assures parents

Ogamba however assured parents that the government will not allow students to suffer because of the ruling but will work round the clock to come up with interim measures to ensure that learning continues.

He added: “I can tell you that we have not gone for Christmas, I am still in Nairobi. As we speak, the paper work for the appeal is done. We have also scheduled meetings with universities next year because as you know the ruling came when we are on holiday. What I am sure about is that we will not allow that judgement to get in the way of learning for students, we are burning the midnight oil so that we can take away this stress from parents.”

Ogamba’s remarks came on the day Chairman of the Commission for University Education (CUE) Professor Chacha Nyaigotti-Chacha also assured that there will be no major crisis when universities resumé learning in January as the government would engage universities to allow the students back to class as it tries to resolve the current mess.

Professor Chacha  said:” I believe that if this decision is not good, the government will appeal it. The government I am sure, if granted the prayers will reorganize itself to enable it to find a practicable solution and have the students resume learning.”

Modify this model

Former Vice Chancellor and current Eldoret University Professor of Physical Chemistry Maurice Oduor although admitted that the ruling had created confusion and unrest among parents, was of the view that the government will resolve the issue amicably.

Prof Oduor  explained that the government will ensure it addresses the issues raised in the ruling as going back to the old funding model known as the Differentiated Unit Cost (DUC) is overtaken by events.

He said: “It is not clear whether we are going back to the DUC because we know that this has been overtaken by events. What we know is that the government is likely to modify this model.  If you hear the way the minister and the Principal Secretary are talking then you would know that they prefer this model and that is why we are saying that they will only limit themselves to the areas that were quashed by the court.”

On his part, Education and strategy consultant at Tathmini consulting Jonathan Wesaya said the High Court decision is not shocking as the problem with the university model is that nobody understands it except President William Ruto who also is only defending it.

Wesaya who said the model was rushed and is premature because Kenya has no adequate data at the household level, was of the view that the old model only required a few modifications to enable it work well.

He said the new model is discriminatory because it has placed poor needy students in categories where they are required to pay fees worth Sh600,000 yet they are not able to do that.

 “This new model was rushed, is premature because as of now nobody in the Ministry understands it. The model is still a mystery to the people who formulated it and it is putting them between a rock and a hard place. I can assure you that so many households are going to suffer if the government insists on going back to this model.” Wesaya said.

He added: “If the appeal the Minister said they are working on is listened to quickly then we can avert a crisis, but if the appeal is pushed on very far dates then we can comfortably say that we are going to collapse this sector.”