Education Gains? The Basic Education Regulations, 2015

The past few weeks have seen matters education back in the news. I continue appreciating how much education is talked about these days. It is my belief that the more matters education make for public conversation, the more scrutiny the public exercises towards those tasked with ensuring the right to education is properly implemented, the more we begin to identify which actors in the education sector are an impediment to the provision of accessible and quality basic education, the better our education system will become.

A few months back the Cabinet Secretary Education was in trouble for abdicating his responsibilities of ensuring an adherence to law and policy on school fees. Previously the CS issued a directive putting a cap on amount of school fees to be charged by public basic education institutions but failed to have it implemented. The failure to implement meant Schools' Boards of management continued running public schools like private properties. Further, and sadly, it meant that education was becoming a preserve of the rich instead of a means of emancipation from poverty and mental slavery. Many learners were locked out of schools for lack of school fees and their positions were auctioned off.

A lot of advocacy brought these issues to the fore, made them part of public conversation, and the CS was pushed to act. Not only did he issue directives of charging of school fees, he went ahead and gazetted them - effectively giving them the force of law.

With the same energy and momentum, the CS recently had published in Legal notice No. 39, on the 8th of April, 2015, Basic Education Regulations, 2015 in line with powers conferred to the office by the Basic Education Act. This is the reason why matters education are back in the news.

Immediately the Teacher Unions were up in arms claiming that the CS was usurping powers of the Teachers Service Commission - an independent constitutionally established Commission.

Regulation 5(3) for example gives the CS the power to revoke the designation of a head of institution on the ground of impropriety. Legally, only the TSC has the mandate to hire and fire teachers. Could it however mean that the heads of institution merely lose their positions as accounting officers of the institutions without necessarily ceasing to be teachers?

In my opinion, a change in wording to read that the CS will recommend a revocation of designation of accounting officer to the TSC on the ground of impropriety would suffice to cool down the temperature as it were. This would reflect a similar provision in Regulation 5(4) where private institutions are concerned. Of course issues of impropriety where head teachers are involved are not exclusively the preserve of the TSC. The EACC can investigate a head of an institution for the same as it is a matter of public interest.

Regulation 2 defines a "head of institution". The TSC wants clarity to this. Can ANY teacher exercise delegated authority of the CS as an accounting officer? Considering the fact that the TSC Act defines the head teacher as the lead educator and administrator, is it likely to create a conflict when another teacher exercises delegated authority of the CS?

These regulations are however important and necessary. Some of the provisions are in many ways radical almost revolutionary.

For example, Regulation 15 makes it a criminal offence to send away a learner for non-payment of activity fees. This is a progressive regulation though it claws back on the Basic Education Act provisions that expressly prohibit sending a child home for lack of school fees. Of course this provision considers the fact that the state handles tuition fees for all learners. However a look at the controversial school fees structures at the beginning of the year shows several other costs imposed by the institutions not just the activity fees. Can learners be sent home for non-payment of, for example development levy? It would be prudent to define what activity fees are.

The regulations further reiterate the importance of due process and the rule of law. Regulation 21 (2) protects employees hired by the Board of Management from being dismissed without a fair hearing. In the past, such employees have suffered at the hands of the BoM and head teachers.

Regulations 22-29 expand the Basic Education Act's provision on provision of Special Needs Education. A proper implementation of these provisions would make learning much easier and learning institutions much more conducive for the education of learners with special needs.

Interestingly, boycotts and so-called unlawful demonstrations under these regulations by learners are considered mass indiscipline. Are there demonstrations in which learners could participate in that would be deemed lawful? Article 37 of the Constitution gives every person the right to assemble and demonstrate....

The Regulations address quality issues in the provision of basic education. Regulation 49 requires anyone deployed to a basic education institution of learning to have undergone training approved by the CS and registered by TSC. This addresses the issue of under qualified teachers in private schools. It however also puts pressure on government to ensure that one, schools are monitored for compliance, and two, more teachers are trained and deployed to solve the issue of teacher shortage - an excuse for schools hiring under qualified teachers.

Under these regulations, a school can no longer conveniently compel the transfer of a child on the basis of under performance so that it does not affect the school's mean score - if ranking of schools is to make a comeback.

Finally, the regulations define an institution of basic education and training. It lists what such a facility should provide. Schools should not be situated above pubs! It is hoped that the state will invest more in these institutions to bring them to these standards.  

Generally, the regulations are a step in the right direction. They are largely in the child's best interest.  Though the regulations have been tabled before the Parliamentary Committee on Delegated legislation, it is hoped that any decisions made shall be in the best interest of the child.


 *** A version of this article was published in the Sunday Nation Edition on 26th April, 2015 ***