HISTORY
OF HIGHER EDUCATION IN KENYA
University education in Kenya can be traced to 1951 when
the Royal Technical College of East Africa was established in Nairobi. The
college opened its doors to the first students in April 1956. In 1961, the
Royal Technical College was transformed into a university under the name
University College of Nairobi giving University of London degrees. In 1970, the
University of Nairobi was established through an Act of Parliament (University
of Nairobi Act 1970). The high demand for university education in the 1980s and
1990s led to the increase in the number of universities from one public
university college in 1970 to seven public universities in 2007. Private higher
education in Kenya can be traced to the colonial period when missionaries
established schools and colleges for their converts. The first private institutions
of higher learning were the St Paul’s United Theological college (1955) and
Scott Theological College (1962). In 1970 the United States International
University (USIU) established a campus in Nairobi. These early universities
offered degrees in the name of parent universities abroad.[1]
PRIVATE
VS PUBLIC UNIVERSITIES
Quality over quantity?
After Kenya attained independence in 1963, the newly
formed government recognized the role of education in promoting economic and
social development as was spelt out in Sessional Paper No. 10 of 1965, which
was premised on African Socialism and its application to planning in Kenya.[2] This
necessitated the rapid expansion of the education system to provide qualified
persons replace the departing colonial administrators, and to undertake some
reforms to reflect the aspirations of the country as an independent state.[3]
Everything seemed to work well in the sixties,
seventies and early eighties, but since the mid 1980s government funding to
public universities declined considerably in real terms.[4]
The
shrinking allocation to public universities has led to insufficient facilities
and stalled infrastructural projects in many universities in the country.[5]
Therefore, public universities can be defined as the
institutions that depend heavily on the government for funding of their
activities. This inadequate funding has trailed enrolment growth in public
universities, compromising quality as infrastructure remained inadequate and
the number of lecturers dwindling.[6]
Another challenge facing public universities is
massification. Massification has been defined as the transformation of
previously elite systems of higher education to mass systems of higher
education as participation in postsecondary education.[7]
Private universities on the other hand can be
defined as those institutions that rely heavily on tuition and private
contributions. This subsequently means that the tuition rates are generally
higher.[8]
Is
the emergence of many private universities a good thing? What are the implications?
The growth of private universities in Kenya can be
attributed to a number of factors. First, the increase in the number of
qualified secondary school leavers seeking higher education which has been
triggered by the massive expansion of primary education.[9]
Second, most of the private universities in Kenya
are established and run by religious organisations. In Kenya 7out of the 8
private chartered universities are sponsored and managed by Christian
organisations. All the five registered universities are sponsored and managed
by Christian organisations. Most of the Christian-sponsored private
universities started by offering courses mainly geared towards training church
ministers.[10]
The implications therefore could be both positive
and negative. For instance, Private universities may be playing an important
role in absorbing demand from students who cannot get into or do not want to
attend public institutions, but the mix of courses that tends to be offered
raises questions, according to some, about their role in Africa’s wider
development.[11]
Despite the negative perception of
private institutions it can be said that the rapid expansion of private higher
education is due to the inability of governments and public universities to
provide higher education places for a population that is growing quickly and
includes an emerging middle class. (Jonathan Mba, Director
of Research and Academic Planning at the Association of African Universities)
LEGAL
FRAMEWORK
The legal framework for higher education in Kenya includes;
a) The
Universities Act, Cap 210B - This Act gives the regulations governing the advancement
of university education for instance the formation of an oversight commission
which will be discussed further.
b) Higher
Education Loans Board, Cap 213A – This Act allows the Ministry of Education to
grant education loans to students. Initially, the loan was only available for
students in public universities but this has changed in the recent years
whereby the loans are now open to those pursuing an education in private
institutions.
c) The
Council of Legal Education, Cap 16A – This Act gives the regulations governing
the legal education sector which will be covered in depth in the course of this
paper.
ESTABLISHMENT
AND ACCREDITATION OF UNIVERSITIES
Section 4 of the Universities Act No. 42 of 2012
establishes the Commission for University Education. This Act[12]
mandates the commission in section 5 (1) to do the following;
- Promote
the objectives of university education;
- Advise
the Cabinet Secretary on policy relating to university education;
- Promote,
set standards and assure relevance in the quality of university education;
- Monitor
and evaluate the state of university education systems in relation to the
national development goals;
- License
any student recruitment agencies operating in Kenya and any activities by
foreign institutions;
- Develop
policy for criteria and requirements for admission to universities;
- Recognize
and equate degrees, diplomas and certificates conferred or awarded by
foreign universities and institutions in accordance with the standards and
guidelines set by the Commission from time to time;
- Undertake
or cause to be undertaken, regular inspections, monitoring and evaluation
of universities to ensure compliance with set standards and guidelines;
- Collect,
disseminate and maintain data on university education;
- Accredit
universities in Kenya;
- Regulate
university education in Kenya;
- Accredit and
inspect university programmes in Kenya;
- Promote
quality research and innovation; and
- Perform
such other functions and exercise such other powers as the Commission may
deem necessary for the proper discharge of its mandate under the Act.
Therefore, what
amounts to accreditation in Kenya?
According to the Commission for University education
website, accreditation entails the public acceptance and confirmation evidenced
by award of a Charter, which a university meets and continues to meet the
standards of academic excellence set by the Commission.
For any institutions to be accredited, the
Commission must be satisfied that the institution concerned has adequate
physical, human, library and financial resources, viable relevant academic
programmes and sound structure of governance.
Governance
and Management of Universities
The role of education and training in the overall
development of a country's social, economic and political spheres cannot be
overemphasized. The Constitution of Kenya 2010 recognizes education as a basic
human right and offers a solid foundation for the government commitment to
education, and for extensive reforms in policy, legislation, and curriculum
aspects of the education sector.
The Constitution, 2010 under article 53 1(b) has
provided for free and compulsory basic education as a human right to every
Kenyan child. Other constitutional provisions that provide for education
include:
• Article 43 1 (f) which recognizes education as a
basic socio-economic right for every person.
• Article 54 1 (b) which provides for the rights of
persons with disability to access educational institutions and facilities
integrated into society to the extent compatible with the interests of the
person
• Article 55 1 (a) which requires the State take measures to ensure that the youth access
relevant education and training
• Article 56 1(b) which recognizes the rights of
minorities and marginalized groups to education
Kenya has experienced a phenomenal expansion of
public universities since the inauguration of the University of Nairobi in 1970
(formerly as part of the Federal University of East Africa). However, while the
universities enjoy some relative measures of autonomy, government involvement
in their governance has been a common feature. Such involvement tends to have
the adverse effect of limiting effective consultation and participation in
decision-making by the various structures of university administration and
members of the university community.
Kenya’s political environment has undoubtedly been
inimical to the development of university autonomy and academic freedom. The
universities do enjoy to some extent some degree of autonomy in student
admission and staff recruitment, government involvement in their running is
routine. For all the public universities, the President of Kenya is the
Chancellor.
In 2012 the Universities Act was revised that
brought about the break down of how universities are governed.
Public
Universities
• There is an established commission known as the
commission for higher education. It consists of a chairman and a vice chairman
that are appointed by the president. (S.3)
• Some persons are appointed by the minister to
represent areas of finance, and education. (S.4)
• There is a secretary to the Commission who shall
be appointed by the Minister and who shall be the chief executive of the Commission
responsible for the management of the Commission’s day-to-day business. (S.4)
• The Minister shall, on the advice of the
Commission, promote university education for the benefit of the people of Kenya
through the establishment and progressive development of public universities.
(S.9)
Private
Universities
• Every private university intended to be set up in
Kenya shall be established by a charter granted by the President in accordance
with the provisions of the Universities Act. (S. 11)
• Any person wishing to establish a private
university in Kenya shall make application in writing to the Commission in the
prescribed manner, for the grant of a charter setting up the private
university. S.11
• The Commission shall consider every application
made and submit it to the Minister together with its recommendations or
observations and the Minister shall submit the application to the President
together with any recommendations or observations which he may wish to make
thereon. (S.11.4)
Kenya
Universities and Colleges Central Placement Service
There is an established Kenya Universities and
colleges central placement service, it is a corporate body established under
the Universities Act 2012 to succeed the Joint Admissions Board.
The Service is governed by the Placement Board. In
the performance of its functions, the Placement Board seeks to promote equity
and access to university and college education, by among other things,
developing criteria for affirmative action, for the marginalized, the
minorities and persons with disabilities.
The placement Board also seeks to establish a
criteria to enable students access the courses for which they applied taking
into account the students' qualifications and listed priorities.
Both the public and the private universities are
members of this service.
LEGAL EDUCATION IN
KENYA
Legal education is
preparation for the practice of law.[13] It is the education of
individuals who intend to become legal professionals or those who simply intend
to use their law degree in other related disciplines such as politics,
academics and economics. It therefore refers to experiences and training which
help different kinds of people understand and use law in society.[14]
Legal education is
aimed at making the student familiar with legal concepts and institutions and
with characteristic modes of legal reasoning. Students become acquainted with
the processes of making law, settling disputes, and regulating the legal
profession. They study the structure of government and the organization of
courts of law, including the system of appeals and other adjudicating
bodies. It ensures a comprehensive understanding of law in its social,
economic, political, and scientific contexts.[15]
In Africa legal
education has attracted and will continue to attract the attention of scholars.
The reason being that African countries have enjoyed sovereign statehood for a
comparably short time during which period transition, experiment, change and
turmoil have been features of society all of which have a profound impact on
received law.[16]
Lord Denning therefore was right in stating that the very future of law in
Africa depends on a proper system of legal education being established.[17]
In Kenya there are
various statutes that govern legal education. One of the statutes that form the
legal framework governing legal education is the Legal Education Act Number 27
of 2012 and Regulations made under the Act (Council of Legal Education
Regulations 2015). It is under Part two of the Act that the institution that regulates
legal education is established and is known as the Council of Legal Education
(CLE).[18] The functions of the council are to regulate,
license and supervise legal education providers, advise the Government on
matters relating to legal education and training, recognise and approve
qualifications obtained outside Kenya for purposes of admission to the Roll,
and to administer professional examinations as may be prescribed under section
13 of the Advocates Act.[19]
The Legal Education
(Accreditation and quality Assurance) Regulations, 2016 prescribe the licensing
process, recognition and approval of foreign qualifications credit accumulation
and credit transfers, quality standards to be satisfied by a legal education
provider for the purpose of accreditation and termination, suspension and
revocation of licenses.
Universities both
public and chartered private universities are allowed to offer degrees in law.
Institutions of higher learning may also offer diploma courses in law.
Universities and institutions of higher learning are however subject to
accreditation. Accreditation is the process by which the Council determines
whether an existing or prospective legal education provider has the wherewithal
to offer the program in question. The process is governed by the provisions of
the Legal Education Act and the Regulations made under the Act.[20]
The functions of CLE
with regards to legal education provides (universities and institutions of high
learning) are accreditation of legal education providers for the purposes of
licensing, curricula and mode of instruction, mode and quality of examinations,
harmonization of legal education programmes and monitoring and evaluation of
legal education providers and programmes.[21]
The Kenya School of
Law Act Number 26 of 2012 also forms part of the legal framework governing
legal education in Kenya. It establishes
the Kenya School of law[22] as
a public legal education provider responsible for the provision of professional
legal training as an agent of the Government.[23]
The school is
responsible for training persons to be advocates under the
Advocates Act, ensure continuing professional development for all cadres of the
legal profession, provide para-legal training, provide other specialized
training in the legal sector, develop curricular, training manuals, conduct
examinations and confer academic awards and undertake projects, research and
consultancies.[24]
The school is
responsible for the admission of any person who wishes to study any course at
the school if the person qualifies for admission for the course[25]
(especially for students who have studied in local universities). CLE however
by virtue of the Miscellaneous Amendment Act 2014 has the singular mandate to
recognize and approve legal education qualifications obtained abroad for
individuals seeking admission to the Bar Programme and/or practice law in
Kenya.[26]
In conclusion, it is
evident that legal education has legal backing in form of statute and an
oversight institution. The question that therefore remains to be addressed is the
quality question. At the fulcrum of the
CLE is the Quality Assurance, Compliance & Accreditation Department of the
Council of Legal Education is one of the key departments of the organization.
It is the largest Department and being part of the larger organization,
the Department derives its mandate from the Legal Education Act (No. 12 of
2012) and the Council of Legal Education (Licensing & Quality Assurance)
Regulations 2015.[27]
Case-Law
R
v Commission of University Education Ex Parte Soita Shitanda
Soita Shitanda was a former government official. He
went to the Business University of Costa Rica. While there he wrote to the
Commission for university education as to whether the university was
recognizable in Kenya. The Commission wrote back and indeed conformed that they
recognize the university which is pursuant to the Commission’s mandate. The
commission weeks later wrote to him again and declined that they cannot
recognize that university and therefore the degree that he had earned there would
not be recognized by them in Kenya.
He moved to the Judicial review decision citing that
there was unreasonableness in the act of the commission and that the rules of
natural justice had been violated. Justice
G.V Odunga ruled that the commission had violated the rule that the applicant
had a legitimate expectation to be heard before the decision to not recognize
the university was made. The judge therefore quashed the decision to not
recognize the university that the applicant had studied in.
The Commission in this decision has the mandate to
recognize foreign universities but this discretion is not blanket. It must be
guided by the rules of natural justice.
[1] The Growth of Private
Universities in Kenya, Jane Onsongo
[2]
The governance of Kenyan
public universities. Research in Post-secondary Education, 3(2), Sifuna, D.
(1998).
[3]
Education, society and
development: New perspectives from Kenya. Nairobi: Oxford University Press, Court,
D., & Ghai, D. (1974).
[4]
Higher Education in Kenya:
The Rising Tension between Quantity and Quality in the Post-Massification
Period, Nickanor Amwata Owuor,
[6]
Higher Education in Kenya:
The Rising Tension between Quantity and Quality in the Post-Massification
Period, Nickanor Amwata Owuor
[7]
http://monitor.icef.com/2015/06/governments-and-educators-in-kenya-struggling-to-keep-pace-with-demand-for-higher-education/; Accessed on 3rd
October, 2016
[8]
https://www.petersons.com/college-search/public-university-vs-private.aspx; Accessed on 3rd
October, 2016
[11]
https://www.timeshighereducation.com/features/africas-teaching-shops-the-rise-of-private-universities; Accessed on 3rd
October, 2016
[13]
William .P Alford, Mary Ann Glendon, Lionel Astor, Legal Education,
Encyclopedia Britannica https://www.britannica.com/topic/legal-education
accessed 30th September 2016
[14]
International Legal Centre, Legal Education in a changing world, Report of the
Committee on Legal Education in the Developing Countries, New York, 1975
[15]
William .P Alford, Mary Ann Glendon, Lionel Astor, Legal Education,
Encyclopedia Britannica https://www.britannica.com/topic/legal-education
accessed 30th September 2016
[16]
J.B Ojwang and D.R Salter, Legal Education in kenya
[17]
A.N Allot, The Future of Law in Africa, 1960
[18]
Section 4(1), Legal Education Act, No 27 of 2012
[20]
Council of Legal Education home page, Council of Legal Education, < http://www.cle.or.ke/> accessed 30th
September 2016
[21]Section
7 (2), Legal Education Act, No 27 of 2012
[22]
Section 3, Kenya School of Law Act No 26 of 2012
[23]Section
4 (1), Kenya School of Law Act No 26 of 2012
[24]
Section 4 (2)(1), Kenya School of Law Act No 26 of 2012
[25]Section
17, Kenya School of Law Act No 26 of 2012
[26]
Council of Legal Education home page, Council of Legal Education, < http://www.cle.or.ke/> accessed 30th
September 2016
[27]Council
of Legal Education, Quality Assurance, Compliance & Accreditation, < http://www.cle.or.ke/>
accessed 30th September 2016
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