A pivotal ruling that could determine the future of President William Ruto’s ambitious multi-billion-shilling reform plan for public university funding is set to be delivered today.

Justice Chacha Mwita, of the Milimani Constitutional and Human Rights Division, will rule on whether the funding model, launched by President Ruto on 3 May 2023, violates the Constitution and whether the presidential directive that created it was illegal.

Justice Mwita had issued an order on 3 October 2024, barring the government from implementing the new funding model until the case was resolved. Today, he is also expected to decide whether to lift that order.

The case was brought to court by the Kenya Human Rights Commission (KHRC), the Elimu Bora Working Group, a citizen, Boaz Waruku, and the Students Caucus. who want the the judge to make a declaration that the model is unconstitutional as it is discriminatory against students from less privileged backgrounds.

The lawsuit follows nationwide protests by university students who claim that the model makes higher education inaccessible. Central to their case is the assertion that the model—which ties the allocation of loans by the Higher Education Loans Board (Helb) and scholarships to family income—excludes thousands of students from receiving essential financial aid.

“We seek a declaration that the implementation of the Variable Scholarship and Loan Funding (VSLF) model is unconstitutional, null, and void,” the petitioners argue, claiming that it would harm university and TVET students, particularly those from less privileged backgrounds.

Additionally, the petitioners argue that the president’s directive that instituted the model was unconstitutional, violating Article 94(5) of the Constitution, which gives Parliament the sole authority to make laws.

“The president has no power to make law by himself, and as such is acting ultra vires in launching a legal programme, without following the laid down legal channels,” KHRC told the judge. 

The government, represented by Education Cabinet Secretary Julius Ogamba, defends the funding model  as an equitable approach aimed at improving access to university education for vulnerable students.

Universities, through the Inter-Public Universities Council Consultative Forum, also support the model, arguing that it aligns with national development goals and ensures sustainable funding for higher education institutions.

In their submissions, the universities urged the court to lift the order blocking the funding model’s implementation, stating that it had hindered their ability to meet financial obligations, including student scholarships, staff salaries, and operational costs. “Lifting the stay order issued on October 3, 2024, is crucial to ensure the immediate disbursement of funds to public universities, enabling them to continue operations and meet their financial obligations to students and staff,” said Ruth Kirwa, the university council’s lawyer.

However, the petitioners contend that the model segments students into five financial bands, which they argue is flawed and contravenes legal provisions. .  They also claim that the system locks out brilliant students under the age of 18, from receiving funding.

“Historically, these students could use their parents’ details to access funding, but under the new model, they are now excluded due to their legal status,” Waruku told the judge in his submissions.

They further accuse the government of usurping the statutory mandate to manage university funding that is sole responsibility of the Universities Fund.

They argue that no public consultation was done, and students, parents, and guardians were not involved in the decision-making process. The petitioners also contend that the government did not give any reasons for the implementation of the model.