The High Court has temporarily suspended the new funding model for studies in universities and colleges after three organisations challenged it, arguing that it is unconstitutional and has created confusion in institutions of higher learning.
Justice Chacha Mwita directed the Ministry of Education to halt the Variable Scholarship and Loan Funding (VSLF) model pending the hearing and determination of the petition.
The Kenya Human Rights Commission (KHRC), the Elimu Bora Working Group and the Students’ Caucus had in their petition argued that the implementation of the model has transferred the responsibility of providing education from the State to parents, many of whom are struggling to keep their children in school.
The lobbies said there was also no clarity on selecting universities and technical and vocational and training courses, with eligible students facing long delays due to a lack of clear instructions from the Kenya Universities and Colleges Central Placement Services (KUCCPS).
“Conservatory orders are issued against the respondents, their servants, agents and employees from implementing the new education funding model, pending the hearing and determination of the petition,” Justice Mwita said.
The judge directed the case to be heard on December 16.
The model was created following a recommendation of the Presidential Working Party on Education Reform.
The lobbies argue in their petition that the model was implemented hurriedly without consultation and without enabling legislation. They say the Higher Education Loans Board and the Universities Fund were already statutorily mandated to oversee higher education funding and to follow the Maximum Differentiated Unit Cost Model, established in the Universities Act.
Under VSLF the model, students have been categorised as vulnerable, extremely needy, needy and less needy with the vulnerable receiving 82 percent scholarship and 18 percent loan, while the less needy getting 38 percent scholarship, 55 percent loan and seven percent to be contributed by the parent or guardian.
The learners are also expected to apply individually for the loans and scholarships and the applications are considered based on a model that uses a Means Testing Instrument (MTI) to determine the student’s level of financial need, so as to ensure they are supported adequately.
In the past, government-sponsored students would pay Sh16,000 per year and get a loan of up to Sh60,000 a year, under the Differentiated Unit Cots established by the Universities Act. The petitioners claim students now have to part with an average of Sh650,000 per annum without scholarships or bursaries.
“Further, the criteria used to qualify a student for government support is yet to be determined,” the petitioners say.
Thy further claim that new students face challenges with registration fees, accommodation, catering, scholarship materials and medical coverage during the reporting and registration phase due to the lack of workable guidelines.
The lobbies argue that the model violates various principles of the Constitution, including the Bill of Rights.
They say it has also failed the public interest test and has failed to meet the legitimate expectations of students enrolled in universities and colleges.
“The respondents have accordingly acted illegally and ultra vires in the implementation of the funding model to the detriment of hundreds of thousands of universities and TVET students and their families,” the petitioners say.
They add that the new system has prevented brilliant but underage students from attending university and receiving funding because of their legal status as minors. Previously, these students would have easily used their parents’ details to gain access in line with their right to education, they argue.
The petitioners further argue that the presidential directive that introduced the funding scheme was unlawful and an attempt to usurp Parliament’s legislative role.
“This court is called upon to urgently intervene in the matter and remedy the illegalities that have been operationalised and will continue to be operationalised,” they say.
The organisations want the court to declare that the government contravened sections 53 and 54 of the Universities Act and that the directive is therefore unconstitutional, null and void.
They have named Attorney-General Dorcas Oduor, Education CS Migos Ogamba, the Higher Education Loans Board and KUCCPS as respondents in the case.
