Abstract

Keywords

Armed conflict; asylum; children; Dadaab; Kakuma; refugee; right to education.

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1 Introduction

An evaluation of the sufficiency of a legal regime requires a contextualisation of the term "sufficiency". Sufficiency refers to something that is "enough to meet the needs of a situation or a proposed end." 1

 Robert Doya Nanima. LLD Public International Law (UWC) LLM International Human Rights (UWC) Dip LP (LDC) LLB (MUK). Associate Professor and Head of Department: Criminal Law and Procedure, Faculty of Law, University of the Western Cape, South Africa. Email: rnanima@uwc.ac.za. ORCiD: https://orcid.org/0000-0001-8825-3376.

1 "Sufficient" defined in the Merriam-Webster Dictionary (Merriam-Webster Dictionary date unknown https://www.merriam-webster.com/dictionary/sufficient). The legal definition in Black's Online Law Dictionary refers to the cogency of evidence to support a party's cause in a court. See Black's Law Dictionary date unknown https://thelawdictionary.org/evidence/.

The global trends on children in armed conflict show that most conflicts take place in populated areas leading to civilian casualties. 4

4 Epps 2012 Ga J Int'l & Comp L 307. Also see Amnesty International date unknown https://www.amnesty.org/en/what-we-do/armed-conflict/; UN 2018 https://www.un.org/press/en/2018/sc13560.doc.htm.

and state economies. 6

6 This is evident in most failed states, like Somalia, and the failure by some states to have effective control over insurgencies in some of their territories, for instance, the Boko Haram in Nigeria.

neighbouring Kenya, such as Somalia, Ethiopia, Sudan and South Sudan have experienced some form of armed conflict at some time. Consequently, this creates inflows by displaced persons from these countries into Kenya. 18

18 Qatamur Nexus between National Security Concerns 47, 70.

It should be recalled that the right to education is premised on the elements of availability, accessibility, acceptability and adaptability. 20

20 CESCR 1999 https://www.refworld.org/legal/general/cescr/1999/en/37937 (General Comment No 13) para 6. See also para 8.

This study evaluates the sufficiency of Kenya's legal regime regarding the protection of the right to education of refugee children. The study employs a two-staged approach. It sets the scene by offiering insights on the right to

education of refugee children in international and regional law. It then evaluates the legislative and policy regime regarding the right to education for refugee children in Kenya. The study thereafter proposes areas for reform.

2 Evaluating the international and regional position on refugees

The global position on refugees can be appreciated by looking at the international treaties and conventions that guide the way that states should deal with refugees, especially children. Kenya is a party to various instruments including the Convention Relating to the Status of Refugees (Refugee Convention), 28

28 Convention Relating to the Status of Refugees (1951) (Refugee Convention).

This contribution emphasises a discussion on the CRC, the ICESCR, and the ACRWC. By design it does not look at the Refugee Convention, the Protocol, and the OAU Convention Governing the Specific Aspects of

Refugee Problems in Africa 38

38 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa (1969). Rebecca International Human Rights 359.

2.1 Convention on the Rights of the Child

As a party to the CRC, Kenya has an obligation to accord a conducive environment for all children within her territory to enjoy their rights. 40

40 See the 6th and 7th preambular paragraph as well as Arts 20(1), 22(2), 24(2)(c) and (d), 29(1)(e), and 39 of the CRC.

2.2 International Covenant on Economic, Social and Cultural Rights

Kenya is also a party to the ICESCR. 45

45 See Art 13 of the ICESCR. Also see General Comment No 13.

state armed groups that target school buildings; violence towards education personnel and students at schools, sexual violence, abduction, and forced recruitment. 48

48 The Safe Schools Declaration outlines a set of commitments to strengthen the protection of education from attack and restrict the use of schools and universities as bases for armed forces and groups. See GCPEA date unknown https://ssd.protectingeducation.org/.

While various reports underscore the failure of children to go to school during armed conflict, 50

50 ACERWC 2016 https://www.acerwc.africa/sites/default/files/2022-09/Study_on_ the_impact_of_armed_conflict_and_crises_on_children_in_Africa_ACERWC_FINAL_ENGLISH_0.pdf; UNICEF date unknown https://www.unicef.org/children-under-attack; Human Rights Watch 2016 https://www.hrw.org/report/ 2016/06/09/education-deficit/failures-protect-and-fulfill-right-education-through-global.

children. 55

55 Machel 1996 https://childrenandarmedconflict.un.org/1996/08/1996-graca-machel-report-impact-armed-conflict-children/ para 196.

In the context sketched above, it has been recommended that refugee camps should take part in appropriate educational activities for specific kinds of refugees such as young children and adolescents. 57

57 Singh et al 2021 https://pmnch.who.int/resources/publications/m/ite. Also see UNHCR 1994 https://www.refworld.org/pdfid/3ae6b3470.pdf 115.

The Committee on Economic, Social and Cultural Rights (CESCR) requires that the right to education be progressively realised. 59

59 General Comment No 13 paras 6(b)(iii), 43 and 44.

It should be recalled that the right to education is governed by the principles of availability, accessibility, acceptability and adaptability. 65

65 Paragraphs 6(1), (2), (3) and (4) of General Comment 13. See Preliminary Report of the Special Rapoprteur on the Right to Education, Ms Katarina Tomasevski UN Doc E/CN.4/1999/49 (1999) para 50, which sets out the "four essential features that primary schools should exhibit, as availability, accessibility, acceptability and adaptability." The General Comment requires that the welfare principles are the guiding feature in the application of these principles. See General Comment 13 para 7.

The question is whether the ICESCR, the CRC and the Refugee Convention provide adequate protection of the rights of refugee children who are from areas of armed conflict, tension and strife. 69

69 It is on this basis that Art 22 of the ACRWC, which points to the use of both IHL and IHRL remains a critical pillar in the promotion and protection of the rights of the child affected by armed conflict in and beyond areas of conflict, tension and strife.

through the application of humanitarian aid rather than human rights law. 72

72 For instance, the International Committee of the Red Cross (ICRC) engages humanitarian principles to a great degree in offering logical solutions to children in armed conflict. See Mack and Pejic 2008 https://www.icrc.org/ sites/default/files/topic/file_plus_list/0923-increasing_respect_for_international_humanitarian_law_in_non-international_armed_conflicts.pdf 9.

2.3 The African Charter on the Rights and Welfare of the Child

The use of complementarity between IHRL and IHL under Article 22 of the ACRWC allows for the use of the principle of the best protection of the rights of a child in instances of both humanitarian and human rights law. 78

78 See Kellenberger 2003 http://www.icrc.org/web/eng/siteengO.nsf/html/5rfgaz. See also Hathaway et al 2012 Minn L Rev 1897.

The use of both IHRL and IHL is not far-fetched as various human rights bodies recognise the vulnerable position of a child in armed conflict. 79

79 See ACERWC 2020 https://www.acerwc.africa/sites/default/files/2022-09/General-Comment-on-Article-22-of-the-ACRWC_English_Web_version_final-1.pdf.

It is expected that the trend highlighted above will gradually embrace principles of IHL, United Nations Security Resolutions, 84

84 UN Security Council Resolution 1261 UN Doc S/RES/1261 (1999); UN Security Council Resolution 1314 UN Doc S/RES/1314 (2000); UN Security Council Resolution 1379 UN Doc S/RES/1379 (2001); UN Security Council Resolution 1460 UN Doc S/RES/1460 (2003); UN Security Council Resolution 1539 UN Doc S/RES/1539 (2004); UN Security Council Resolution 1612 UN Doc S/RES/1612 (2005); UN Security Council Resolution 1882 UN Doc S/RES/1882 (2009); UN Security Council Resolution 1998 UN Doc S/RES/1998 (2011); UN Security Council Resolution 2068 UN Doc S/RES 2068 (2012).

ILO Convention 182 on the Elimination of the Worst Forms of Child Labour (ILO Convention 182). 89

89 ILO Convention 182 on the Elimination of the Worst Forms of Child Labour (1999) Arts 2 and 3.

The foregoing approaches are commendable, but they do not offer direction on how to protect the rights of a child who has migrated from a territory of armed conflict to a safer space. To illustrate this, the current scope of Article 22 relates to the need to ensure that the rights of a child are upheld during armed conflict. The extension of the application of Article 22 seems to point to suggestions that States Parties should apply it in instances of emergency or in situations that require that the rights of vulnerable children are not violated. 92

92 See comments from South Africa at the 32nd session of the ACERWC, November 2018, in Addis Ababa on the proposed extension of the application of Art 22, and measures for humanitarian situations to national emergencies: Republic of South Africa 2018 https://reporting.acerwc.africa/sites/default/files/2022-09/South%20 Africa%201st%20Periodic%20Report%20Eng.pdf.

study have been accorded to the use of the best interests principle. This, notwithstanding the author’s adoption of the interpretation of the ACERWC, which sees the best interests principle as a "gap-filling" provision that offers solutions that fill both objective and subjective gaps. 96

96 Tostensen et al Supporting Child Rights 59.

The relevant article of the ACRWC provides that "[i]n all actions concerning the child undertaken by any person or authority the best interests of the child shall be the primary consideration." 97

97 Article 4(1) of the ACRWC.

3 Kenya's position on refugee children's right to education

The evaluation of Kenya's position is done in four phases; the constitutional and legislative provisions, the court decisions, the national policies on education, and finally the practices that follow. 102

102 To understand the way Kenya deals with refugee children, it is important to evaluate the constitutional underpinnings of the right to education and the rights of refugees

3.1 The constitutional and legislative framework

The Constitution of Kenya, 2010 (the Constitution) provides that "every child has a right to free and compulsory basic education." 103

103 Article 53(1)(b) of the Constitution of the Republic of Kenya, 2010 (the Constitution).

The Constitution has neither a provision that grants access to education nor a provision that grants equal access to educational institutions. It should be recalled, however, that it provides for the right to equality thus:

(1) Every person is equal before the law and has the right to equal protection and equal benefit of the law.

(2) Equality includes the full and equal enjoyment of all rights and fundamental freedoms. 106

106 Article 27 of the Constitution.

This right has been interpreted to refer to all persons, including refugee children. 107

107 Samow Mumin Mohamed v Cabinet Secretary, Ministry of Interior Security and Co-Ordination [2014] eKLR 2 para 16.

The Constitution 112

112 Articles 19(3)(a) and (b) and 21(1) of the Constitution.

3.2 Kenya's Education for Sustainable Development Policy

Kenya's Education for Sustainable Development Policy does not contextualise the refugee child. 118

118 Kenya, Ministry of Education 2017 https://www.education.go.ke/sites/ default/files/2022-05/Education-for-Sustainable-Development-Policy-for-the-Education-Sector.pdf.

seen in the statistics on child enrolment. According to Kenya's Ministry of Education, the report for 2020/21 indicates that there was an increase in enrolment from 9.2 million children in 2020 to 10.3 million in 2021. 121

121 ZOE Talent Solutions 2023 https://zoetalentsolutions.com/educational-statistics-for-kenya/.

There is little guidance from the courts on how the right to education of child refugees should be handled. The author is not aware of any case that has solely and decisively dealt with the question of the quality of education that a refugee child should enjoy. A discussion of some of these cases follows.

The case of Kituo Cha Sheria v Attorney General raises the issues of the Government directive with regard to the right to freedom of movement, the prohibition of discrimination, the need to guarantee equality and effective protection before the law, and not the education of refugee children. 125

125 Kituo Cha Sheria v Attorney General [2013] eKLR 2.

and the right to a fair hearing. The case of Coalition for Reform and Democracy (CORD) v Republic of Kenya (CORD) 127

127 Coalition for Reform and Democracy v Republic of Kenya [2015] eKLR 2.

In passing, some cases have hinted at the vulnerable state of the refugee child, and the need to engage in steps that address the safety and well-being of the refugee child. 129

129 Refugee Consortium of Kenya and NT v the Attorney General, Cabinet Secretary Ministry of Interior and National Coordination, Commissioner Refugee Affairs and Cradle-Children Foundation (as an Interested Party) High Court Petition 382 of 2014 para 46, where the court reiterated the principles in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, which recognises that in addition to the difficulties that a person faces as an individual, this unfortunate position is extrapolated where the person is a child. See UNHCR 2019 https://www.unhcr.org/fr-fr/en/media/handbook-procedures-and-criteria-determining-refugee-status-under-1951-convention-and-1967.

education through teacher deployments or the use of a specialised curriculum affects the optimal enjoyment of the refugee child’s right to education. 135

135 Wanzala and Musitya 2018 https://nation.africa/kenya/newsplex/kenya-s-education-system-is-among-the-most-inclusive-of-refugees-study-shows-111172.

3.3 The nature of education in the camps

There are practical indications that the schools in the refugee camps of Kakuma and Dadaab are different from the national schools. 136

136 These differences are highlighted in the discussion that follows.

The first challenge is that the placement of a learner in a particular school, either a national or a refugee school, intensifies the child’s awareness of his/her status as a national or a refugee. 142

142 Bellino and Dryden-Peterson 2018 British Journal of Sociology of Education 222.

Consequently, she had to take on a different identity in the school setting, which resulted in her experiencing more agreeable behaviour by the other pupils. 144

144 Bellino and Dryden-Peterson 2018 British Journal of Sociology of Education 222.

The second challenge is that there is a difference in the quality of education between the classes in a refugee camp in Kenya and the national schools in terms of resources and infrastructure. 146

146 Bellino and Dryden-Peterson interviewed a refugee child who gave an account of the schools in the camps and the national schools: the classrooms in national schools were not so crowded, teachers arrived on time, and the students learned; the schools in the camps were crowded, the teachers were not motivated and as such the teaching of the children was compromised.

A third challenge is the language of instruction, especially where there are no teachers for the refugee children from the country of origin. 152

152 Mendenhall et al 2015 Journal on Education in Emergencies 122.

refugee children would be impractical. Nevertheless, various issues affecting refugees in Kenya can be dealt with in a manner that points to the positive realisation of the right to education for the refugee child. 153

153 The question of the positive realisation of the right to education for children in armed conflict is an ongoing debate. Insights from the discussions at the various sessions of the African Committee indicate that the ACERWC advocates the positive rather than the progressive realisation of social and economic rights. See Nanima "Contextualising the Socio-Economic Rights of the Refugee Child" 139-164. It is right to assert that the issue of positive realisation extends to the refugee camps where these children end up.

4 Conclusion and recommendations

The Constitution and the Refugee Act provide for the right to education in a general continuum. The guarantees to the provision of this right are evident in the recognition of other rights such as the right to equality and freedom from discrimination as well as the recognition of the rights of refugees. One may question the blanket recognition of refugees' rights under the Refugee Act. 154

154 Section 16 of the Refugees Act 13 of 2006.

In addition to the above, there is a shift from the progressive to the positive realisation of the right to education for children. While progressive realisation inculcates the need for the country to report on the steps taken to improve the provision of the right to education over time, positive realisation contextualises the steps taken to improve the enjoyment of the

right through deliberate, practical steps. For instance, the use by partners such as the UNHCR of teachers who are able to provide instruction in the language that the refugee child understands is positive realisation. To this end the use of the principles of availability, accessibility, acceptability and adaptability is the framework for progressive realisation. The aforementioned four principles are not adequately realised. 158

158 Paragraphs 6(1), (2), (3) and (4) of General Comment 13. See Preliminary Report of the Special Rapoprteur on the Right to Education, Ms Katarina Tomasevski UN Doc E/CN.4/1999/49 (1999) para 50.

While the constitutional and legislative framework embraces the right to education, the practical solutions to the enjoyment of this right to education are limited by the failure in progressive realisation. As such, the lack of available, acceptable, accessible and affordable education affects the enjoyment of the right. The lack of emerging jurisprudence from the courts and the closed nature of the Education for Sustainable Development Policy do not favour refugees. 164

164 See part 3.2 above.

These include the stigmatisation that follows the identification of the learners as refugees, the poor quality of the education provided in the camps, and the pedagogical decisions taken (such as the language of instruction) in the methods and practices of teaching offered. 166

166 Bellino and Dryden-Peterson 2018 British Journal of Sociology of Education 222.

From the foregoing, it is recommended that there should be a structural integration of the right to education from the refugee camp setting to the formal setting to ensure a socio-cultural experience of identity transformation. 167

167 Bellino and Dryden-Peterson 2018 British Journal of Sociology of Education 222.

The application of the right to education should start from the deliberate effort by the Ministry of Education to monitor its implementation in the refugee camps. This is in line with Kenya's obligation to ensure the promotion and protection of the right to education for all children in its territory. The monitoring could be a dual effort with the UNHCR and other bodies that work with refugees so that this is reflected in the national annual reports. Considering the trauma that the child from armed conflict goes through, it is prudent that the government partners with NGOs and CSOs to offer counselling to help the children deal with the traumatic experiences. Due to the statistics that a refugee may stay in the host state for up to 17 years, it would be in the best interest of the refugee child that such measures are taken. To this end, an empirical study that is geared towards the identification of the needs of children in the various age brackets has to be done. 170

170 Kirollos et al 2018 https://www.savethechildren.it/sites/default/files/files/ uploads/pubblicazioni/war-children.pdf.

It is acknowledged that the shift from the progressive to the positive realisation of the right to education for children is affected by logistical challenges. At its core, progressive realisation relates to the steps that the country takes to improve rather than regress in the provision of this right. A systematic shift should start with the use of a positive realisation of the right to education in a manner that engages the principles of progressive realisation. This would be the first step to ensure the accessibility of the right, in terms of which Kenya would move from positive to progressive realisation. 171

171 See ACRWC Art 1. It does not distinguish between civil and political rights on the one hand and socio-economic rights on the other. Kenya, as a State Party, is expected to adhere to the provisions of Art 1 of the ACRWC.

Kenya should also draw insights from the African Union's use of the Peace and Security Council Disarmament, Demobilisation Reintegration Capacity (DDR) programme. 173

173 AUC 2014 http://www.peaceau.org/uploads/au-operational-guidance-note-on-children-in-ddr.pdf 9-10.

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List of Abbreviations