Kenya: Submission to the UN Committee on Economic, Social and Cultural Rights

We write in advance of the 72nd pre-session of the Committee on Economic, Social and Cultural Rights regarding Kenya’s compliance with the International Covenant on Economic, Social and Cultural Rights. This submission includes information on teenage pregnancy and access to education, education during the Covid-19 pandemic, and the protection of education from attack.

Teenage Pregnancy and Access to Education (articles 2, 3, and 13)

From 2004 to 2020, the adolescent birth rate in Kenya was 96 per 1,000 adolescent girls and women aged 15-19.[1] This is higher than the subregional rate in East and Southern Africa and more than twice the world rate.[2] Pregnancy is both a barrier to girls continuing their education and often a consequence of girls dropping out of school. Numerous studies have shown that the longer a girl stays in school, the less likely she is to be married as a child or become pregnant during her teenage years.[3]

Kenya has a re-entry policy that allows pregnant girls to stay in school for as long as they want but prevents them from resuming studies until six months after delivery.[4]

The 2009 National School Public Health Policy states that pregnant girls should be allowed to continue with their studies for “as long as possible,” that “girls will undergo voluntary medical screening once per term,” and that schools should provide special facilities for nursing mothers at school.[5]

In 2020, Kenya adopted the National Guidelines for School Re-Entry in Early Learning and Basic Education, which provide steps to be taken by schools once a student’s pregnancy is confirmed.[6] These include, for example, informing the parent or guardian as soon as possible if s/he is not already aware, ensuring access to age-appropriate reproductive health services such as antenatal care, and requiring the pregnant student–along with parents or guardians–to sign a committal letter that she will re-enter school six months after delivery.

Human Rights Watch research shows there is weak implementation, monitoring, and enforcement of this re-entry policy. “Evelina,” 17, from Migori county, western Kenya, dropped out of the first year of lower secondary school when she got pregnant. She received no information or advice about policies that allowed her to continue going to school while she was pregnant.[7] Pregnant girls face multiple barriers to staying in school, such as accommodation for breastfeeding, childcare, stigma in schools and communities, and lack of finances.

Human Rights Watch encourages the Committee to call on the government of Kenya to:

• Adopt an unconditional continuation policy that allows students who are pregnant, mothers, and/or married to continue their education while pregnant and after giving birth, and monitor implementation.
• Address social, financial, and systemic barriers that inhibit adolescent mothers from continuing their education.
• Take steps to ensure that schools are free from stigma and discrimination.
• Ensure that adolescents have confidential access to modern forms of contraceptives and information on sexual and reproductive health rights, including through comprehensive sexuality education.

Access to Education during the Covid-19 Pandemic (article 13)

In response to the Covid-19 pandemic, Kenyan schools were fully closed for 28 weeks and partially closed for nine weeks.[8] Human Rights Watch research shows that school closures caused by the pandemic exacerbated previously existing inequalities, and that children who were already most at risk of being excluded from a quality education, such as girls and economically vulnerable children, have been most affected.

Girls faced unique barriers during distance learning in Kenya. One student in Garissa said that her school did not offer any materials or guidance on how to study during school closures. “I tried to get in touch with my teacher who was teaching mathematics, chemistry, and physics. He said he would not be able to go to anyone’s home, but they could come to his house. As girls we feared going to his house, but I hear the boys have been going.”[9] A primary school teacher in Nairobi, Kenya, said “With the lockdown, all family members are staying in the house morning to evening. I have had some of the girls call to inform me that they are harassed by their fathers or uncles.”[10]

Many girls were also unable to fully participate in distance learning because of increased responsibilities at home, such as doing chores and caring for family members. Zawadi N., 16, in Nairobi, told Human Rights Watch that she spent almost five hours a day looking after her younger siblings: “There’s much more to do with siblings because I am also acting as a teacher to the younger ones.”[11]

Children living in poverty had greater difficulty accessing an education for multiple reasons, many of which occur simultaneously, creating overlaying factors of disadvantage: they were less likely to have the necessary devices for online distance learning, more likely to find it difficult to access the internet for online distance learning due to its cost, less likely to be able to afford existing or new costs related to education, more likely to live in smaller spaces that made studying at home difficult, and their parents or guardians were less likely to have levels of education and digital literacy to equip them to act as substitute educators.

A teacher at a primary school in the informal settlement of Mathare in Nairobi—who described her students as “promising young boys and girls from extremely poor backgrounds”—illustrated this dynamic of multidimensional poverty during the pandemic: “Our pupils live in slums grappling with sanitization issues like lack of water. They live with siblings and extended family relatives in small houses and lack basic items like food. Most of the parents to these children have lost their sources of livelihoods due to the pandemic, making their already strained living conditions much worse.”[12]

A student from Nairobi said she prioritized the limited internet data purchased by her sister to download learning material for mathematics and science. “Subjects like Christian religious education, English, or Kiswahili language, I read from the textbooks.”[13] Another girl in Garissa said, “I do not have access to a computer, internet, or a smartphone. Because of this, I am very behind in physics which, as it is, is already difficult.”[14] Regarding access to educational support at home, Taisha S., 16, said: “I am the only person in this house that has attended school and therefore there is very little, to no, support.”[15]

Armed conflict was another major factor driving many children out of education. School dropouts was compounded by the double threat of conflict, attacks against students, teachers and schools, and pandemic-related school closures.[16] A student based in Garissa said, “This situation did not start with Covid-19. We had no lessons for three weeks because a lot of teachers were running away from North-Eastern Province due to a rise in terrorist incidents.”[17]

Students shared feelings of stress, isolation, and depression, which they linked to the lack of contact with their school community. Many received no instruction, feedback, or interaction with their teachers. Dekha A., 14, said her school sent revision papers to parents via WhatsApp just twice a month: “A marking scheme is sent once the students have made an attempt and the papers are meant to be marked by the parents… The teachers do not communicate directly with us.”[18]

Human Rights Watch encourages the Committee to ask the government of Kenya:

• How has the extent of children’s learning loss due to Covid-19 school closures been assessed?
• How will measures to remedy lost learning be applied to schools across the country, and on what timeline?
• How does the government plan to mitigate the learning inequities that resulted from disparate access to devices and internet connection between children from low-income and higher-income households?
• What resources or support has the government or education ministry provided to students and teachers following the return to in-person classes?

Human Rights Watch encourages the Committee to call on the government of Kenya to:

• Explicitly allocate educational resources strategically to vulnerable and low-income groups, children traditionally at risk of exclusion from education, and those shown to have been particularly affected in their education during the pandemic, including girls, children from low-income backgrounds, and children from rural areas.
• Adopt measures to provide affordable, reliable, quality, and accessible internet, including targeted measures to provide free, equitable access to the internet for educational content.
• Develop or expand device affordability and availability initiatives for schools and families, with support targeted at the most vulnerable children, and develop and expand initiatives to secure and equitably distribute devices for learning to schools.
• Now that schools are open, enable schools to assess students’ level of learning in each subject, and provide needed support to improve levels, including through free extra tutoring and counselling, as necessary.
• Ensure that schools support teachers to provide students with tailored support to accommodate children’s individual learning needs, as well as students’ personal circumstances, including mental health, family situation, and economic hardship.

Government-Endorsed Online Learning During the Covid-19 Pandemic (article 13)

In a global investigation of education technology (EdTech) products endorsed by the world’s most populous countries for children’s education during the pandemic, Human Rights Watch found that the Kenyan government violated children’s right to privacy and other rights.[19]

Human Rights Watch analyzed Kenya Education Cloud, an EdTech website that was used by the education ministry to deliver online education to students in pre-primary, primary, and secondary school during the pandemic.[20]

Human Rights Watch observed Kenya Education Cloud sending children’s data to Google advertising platform through ad trackers and Google Analytics’ ‘remarketing audiences’, an advertising technology (AdTech) tool that allowed Kenya Education Cloud to target its users with ads across the internet.[21]

The United Nations Committee on the Rights of the Child has emphasized that any digital surveillance of children, together with any associated automated processing of their data, should not be conducted routinely, indiscriminately, or without the child’s knowledge or, in the case of very young children, that of their parent or caregiver.[22] Moreover, it should not take place “without the right to object to such surveillance, in commercial settings and educational and care settings,” and “consideration should always be given to the least privacy-intrusive means available to fulfil the desired purpose.”[23] Any restriction upon a child’s privacy is only permissible if it meets the standards of legality, necessity, and proportionality.[24]

The unprecedented, mass use of education technologies by schools during the pandemic without adequate privacy protections drastically compromised children’s right to privacy. Recognizing this, the UN special rapporteur on the right to privacy warned that, “Schools and educational processes need not and should not undermine the enjoyment of privacy and other rights, wherever or however education occurs.”[25]

Children were compelled to give up their privacy for their learning. Children who relied on Kenya Education Cloud as their primary source of education during school closures could not reasonably object to such surveillance without opting out of compulsory education and giving up on formal learning during the pandemic.

Children and their parents were denied the knowledge or opportunity to challenge these practices. The government did not provide notice of its data practices and their risks to students and teachers; similarly, Kenya Education Cloud failed to offer any privacy policy at all.

Human Rights Watch recommends that the Committee ask the government of Kenya:

• What steps did Kenya’s education ministry take to minimize child rights risks in the use of Kenya Education Cloud, or check that they were safe to use, prior to its endorsement?
• What recourse or remedy does the government provide, or is planning to provide, to children who have experienced infringements of their rights as a result of their use of Kenya Education Cloud and whose data remain at risk of misuse and exploitation?

Human Rights Watch recommends that the Committee call on the government of Kenya to:

• Incorporate and enforce comprehensive protections for children in its implementation of The Data Protection Act, 2019. Such protections should require that any processing of children’s data meet strict requirements of necessity and proportionality, regardless of consent.
• Provide remedies for children whose data were collected through their use of Kenya Education Cloud. To do so, the education ministry should:
  • Immediately remove all ad tracking technologies from Kenya Education Cloud and delete any children’s data collected during the pandemic.
  • Immediately notify and guide affected schools, teachers, parents, and children to prevent further collection and misuse of children’s data.
  • Require Google to identify and immediately delete any children’s data they received from Kenya Education Cloud during the pandemic.
• Ensure that any services that are endorsed or procured to deliver online education are safe for children. In coordination with data protection authorities and other relevant institutions, the education ministry should:
  • Require all actors providing digital educational services to children to identify, prevent, and mitigate negative impacts on children’s rights, including across their business relationships and global operations.
  • Require child data protection impact assessments of any educational technology provider seeking public investment, procurement, or endorsement.
  • Ensure that public and private educational institutions enter into written contracts with EdTech providers that include protections for children’s data.
  • Define and provide special protections for categories of sensitive personal data that should never be collected from children in educational settings.

Protection of Education from Attack (article 13)

The Safe Schools Declaration is an inter-governmental political commitment that provides countries the opportunity to express political support for the protection of students, teachers, and schools during times of armed conflict,[26] the importance of the continuation of education during armed conflict, and the implementation of the Guidelines for Protecting Schools and Universities from Military Use during Armed Conflict.[27] Kenya endorsed the Declaration in June 2015.[28]

In January 2021, the African Union began requiring countries contributing troops to its peace operations to “ensure that schools are not attacked and used for military purposes.”[29] As of September 2022, Kenya provides 250 troops to UN peacekeeping missions.[30] The 2017 Child Protection Policy of the UN Department of Peace Operations, Department of Field Support, and Department of Political Affairs notes: “United Nations peace operations should refrain from all actions that impede children’s access to education, including the use of school premises. This applies particularly to uniformed personnel. Furthermore … United Nations peace operations personnel shall at no time and for no amount of time use schools for military purposes.”[31]

Human Rights Watch recommends that the Committee pose the following questions to the government of Kenya:

• What steps has Kenya taken to implement the commitments in the Safe Schools Declaration?
• Do any Kenyan laws, policies, or trainings provide explicit protection for schools and universities from military use during armed conflict?
• Does pre-deployment training for Kenyan peacekeepers include the ban on using schools in military operations?

Human Rights Watch encourages the Committee to:

• Congratulate Kenya for endorsing the Safe Schools Declaration.
• Recommend that the government of Kenya implement the commitments of the Safe Schools Declaration and share any good practices with other countries in the African Union.