Education - A parent has gone to the High Court to force the Ministry of Education to pay school fees for students in private schools. Retired teacher Gabriel Nyabola is suing on behalf on his 15-year-old daughter, a student at Eastmore Girls School, a private school on the outskirts of Nakuru. Last night Education PS Prof James ole Kiyiapi dismissed the move as "premature" but the suit was welcomed by both the private school and private parents associations. Nyabola argues that Article 53(b) of the new constitution guarantees "every child" the right to "free and compulsory basic education". On behalf of all parents with children in private schools, Nyabola is accusing the government of discrimination.

Through his lawyer Musembi Ndolo, Nyabola is asking Judge Anyara Emukule to declare that the government policy of free secondary education initiated on January 9, 2008 to be a violation to the constitutional rights of children in private schools as it only applies to students attending public, national and local authority schools.

"All Kenyan children are liable to equal treatment and as such should all receive the annual subsidy of tuition and activity fee amounting to Sh10,265," he says.

Nyabola wants the government to be compelled to provide teachers to private schools through the Teachers Service Commission arguing that the current arrangement where private schools source for their own teachers is against the Children's Act of 2010 and the United Nations Convention on the Rights of the Child.

He also wants government to provide children in private schools with free learning materials such as books and laboratory equipment, free sanitary towels for the girls and school support staff.

Nyabola is suing the Attorney General and the Permanent Secretary in the Ministry of Education who he says have made education unaffordable, inaccessible and inequitable through their faulty policies.

Nyabola argues that the government has previously acknowledged that it cannot accommodate all students graduating from primary schools into public secondary schools and has encouraged investment into private education. "Why then are our children made to suffer for the government's lack of a good public education policy framework?" he posed.

Nyabola is seeking orders to quash the Free Primary and Free Secondary Education policies and for them to be replaced by new policies that include equitable subsidies for children in both private and public schools. Judge Emukule has certified the matter as urgent and directed that all parties appear before him on June 9 for the hearing of the case.

Last night Education PS Kiyiapi said there is a task force reviewing the entire education system. Kiyiapi said that its terms of reference include education financing and the role of both public and private sectors. "We should therefore make suggestions to the task force so that they can develop a more comprehensive and holistic solution to the problem," Kiyiapi said. "Going to court is premature at this point given the reforms we are undertaking," he said.

However the national chairman of the Kenya Private Schools Association, John Kabue Mwai, supported the Nyabola suit. "Why should the government discriminate between children in the FPE programme on the basis of where they go to school?" Mwai said.

He argued there is a need to define who should benefit from the capitation in school funding for both primary and public day secondary schools. "As we speak today, there are some boarding schools who benefit from the day secondary school funding," Mwai said. "This parent has made a step in the right direction because every parent pays taxes to government," Mwai said.

"We might be enjoined in the matter if it focuses on how the money should be distributed to all school-going children. We have not yet filed a similar suit because our discussions have slowed down over the way we should approach the case," Mwai said.

The Kenya National Association of Parents Secretary General Musau Ndunda said under section 53 of the new constitution the government is compelled to offer free education to all children. "We don't have private children and public children. What we have are private investments," Ndunda said.

Irene Wairimu

Nairobi Star/08/06/2011