THE BASIC EDUCATION ACT OF 2013: WHY IT IS ONE STEP FORWARD AND TWO STEPS BACK FOR CHILDREN WITH DISABILITIES IN KENYA

Abstract

The Basic Education Act 14 of 2013 ensures the right of all children with disabilities to free and compulsory education for the first time in Kenya. However, the Act continues to perpetuate discrimination against Kenyan children with disabilities. First, the law fails to provide reasonable accommodations in education, which amounts to disability discrimination. Second, the law fails to ensure an inclusive education system as required by article 24 of the CRPD. While there has been some debate as to whether article 24 bans all specials schools, the Basic Education Act creates a system in which all children with disabilities are required to attend separate schools, solely based on their disability. Although an inclusive education system may not be possible to achieve in Kenya overnight, the law does not do enough to promote equal educational opportunities for children with disabilities as required by the CRPD. At the very least, children with disabilities should be guaranteed the right to an education in the least restrictive environment, which, we argue, is possible to achieve immediately. The right to education in the least restrictive setting ensures that children with disabilities are provided the opportunity to learn with their non-disabled peers. However, enforcing the right to education in the least restrictive environment should not be the final goal; it is only a means that will lead towards full inclusion for all children with disabilities in Kenya, as mandated by the CRPD.