Court of Appeal reinstates university funding model

The Court of Appeal suspended a decision by the High Court that declared the new university funding model as unconstitutional and discriminatory.

Justices Patrick Kiage, Weldon Korir and Joel Ngugi directed the Attorney General, the Higher Education Loans Board (HELB), and the Trustees of the Universities Fund, Kenya, to complete and publicize, within 14 days, an appeals mechanism for students who may be aggrieved by funding decisions or their categorization for funding purposes.

The mechanism will be made available to all students and relevant stakeholders.

The judges said while the new funding model is under appeal, HELB and the Trustees of the Universities Fund, Kenya, must inform all students applying for and receiving funding that the variable scholarship loan funding model is currently being challenged in court.

The three judges said the students must be made aware that the funding model may change depending on the outcome of the ongoing appeals.

The directives follow after the state appealed against a decision issued by Justice Chacha Mwita in December last year.

Mwita in his decision cited a lack of public participation, prohibiting the government from implementing it.

The judge said the model also known as Variable Scholarship and Loan Funding (VSLF) is biased as it introduces clusters based on perceived financial ability.

“It’s unrealistic if not unfair to consider someone earning Sh70,000 per month as needy considering the level of taxation in the country,” said Mwita.

Every person, he emphasized, is equal before the law and the state is prohibited from directly discriminating against any person on any ground.

He said that one’s social standing may not be a ground for treating someone differently noting that under the old model, all students were treated equally.

“The new one has introduced clusters labelling students as needy this creating discrimination and distinction based on ones earning,” he said.

The judge said although the categorization may appear innocent, it’s not clear how it was achieved.

Under the new funding model band 1 has students whose monthly income does not exceed Sh5,995 while band two ranges from Sh5,995 to Sh23,670.
Students from families with a monthly income of between Sh23,671 and Sh70,000 are placed in band three while those between Sh70,000 and Sh119,999 are in bands four and five which receive the least funding in terms of scholarships but are high on loans for students whose families earn above Sh120,000.

The government defended the model in court saying it’s not discriminatory as argued by the petitioners on grounds that it allows all students to apply for scholarships and loans.

The application data according to the document is digitally analysed to inform scholarship and loan levels gauged by the level of need.

But the Judge in prohibiting its implementation said it is not anchored in any law and it is also not clear on who would provide loans and how.

“This funding model is not anchored on any law. Its composition and its procedure remain unknown,” he said.