The relationship between government and parents in supporting the education of children requires urgent clarification, particularly on the issue of voluntary contributions in government-aided schools.
Article 34(2) of the Constitution of Uganda provides that a child is entitled to basic education, which shall be the responsibility of the state and the parents. Section 9 of the Education Act also provides for contributions from parents. However, there remains considerable uncertainty over how these constitutional and statutory responsibilities should operate in practice.
Among the Maasai people of Kenya, children are allowed to call their uncircumcised parents by name, such as Ole Ruto, without a prefix, on account of failing to fulfil a cultural obligation. Similarly, in some communities, particularly in Bugisu, parents who fail to take responsibility for the education and welfare of their children may face criticism from their children later in life.
This concern was visible during one of the school management meetings I recently attended, where children challenged their parents to take responsibility for their education by making voluntary contributions as envisaged under Article 34(2) of the Constitution and Section 9 of the Education Act.
Many times, it has been observed that when the state provides subsidies to schools, some parents abandon their responsibilities and divert resources that would otherwise have been used for education to other activities, including marriage ceremonies and alcohol consumption. The statistics emerging from the recent Parish Development Model (PDM) programme are also disturbing in this regard.
In Uganda, whereas the Constitution places a bilateral responsibility on both parents and the state to support the education of children, no statute has clearly outlined what role each party should execute or who should do what.
The state should not assume greater responsibility than parents, because doing so could create unnecessary indolence among parents.
Whereas some parents in government schools pay as much as Shs3 million in school fees, elsewhere, Annual General Meetings (AGMs) in the same government-aided schools have resolved to make voluntary contributions to support the education of their children, with some parents pledging as little as Shs50,000 per term.
This has resulted in several headteachers being arrested for receiving money, contrary to presidential directives. Such an issue should instead be referred to the Constitutional Court for interpretation rather than simply arresting headteachers. What happens if the courts ultimately provide a different interpretation?
A senior official from the Ministry of Education, who spoke to me on condition of anonymity while explaining the position of the law, said Section 9 of the Education Act allows contributions from parents and that several Parent-Teacher Associations (PTAs) have been engaging parents based on this provision.
Whereas the preamble of the Ugandan Constitution, under the National Objectives and Directive Principles of State Policy, Objective XXVIII, declares that the state shall promote free and compulsory basic education, a provision given further emphasis under Article 8A of the Constitution, Article 34(2) remains clear on the shared responsibility of the state and parents.
Article 34 deals with the rights of children, and Sub-Article 34(2) states that a child is entitled to basic education, which shall be the responsibility of the state and the parents.
Premised on this constitutional provision, the roles of the two partners are framed and allocated by the supreme law of the land. State actors should therefore not usurp the roles of parents, especially where those roles are consistent with the Constitution and international treaties to which Uganda is a signatory.
The African Charter on the Rights and Welfare of the Child and the United Nations Convention on the Rights of the Child both recognise the responsibilities of parents and the state in supporting the education and welfare of children.
Those enforcing the no-fees policy in government schools often rely on presidential directives. However, it is a longstanding principle of constitutional law that an authority granted to the President by the Constitution cannot be used to override another provision of the same Constitution.
No authority derived from the Constitution can lawfully be used to undermine the Constitution itself. Using constitutional authority to overthrow or undermine another constitutional provision would amount to an affront to constitutionalism, as envisaged under Article 3(2).
Therefore, stripping parents entirely of their constitutional role in contributing to the education of their children could be viewed as inconsistent with Article 34(2) and should be carefully examined.
The President has demonstrated on several occasions that where he has a particular interest in an issue, he can issue specific executive directives, such as those relating to charcoal in Northern Uganda.
Article 2(1) and (2) of the Constitution is also clear on constitutional supremacy. It provides that the Constitution is the supreme law of Uganda and that any other law or custom inconsistent with its provisions shall, to the extent of the inconsistency, be null and void.
The reasoning in the constitutional text is therefore clear, and no law made under the Constitution should be interpreted in a manner that defeats the intention of its provisions.
The National Objectives and Directive Principles of State Policy, under Objective XXVIII, state that the state shall promote free and compulsory basic education and take appropriate measures to afford every citizen equal opportunity to attain the highest educational standard possible.
This is also consistent with Article 30 of the Constitution, which recognises the right to education.
However, it is a well-established principle of jurisprudence that a constitutional preamble does not necessarily constitute an operative provision of the law.
This position was affirmed in the case of Halimali Adamji v East African Posts and Telecommunications Ltd (1975), in which the court considered the status of the preamble to the 1965 Tanzanian Constitution.
Although the decision was based on the Tanzanian constitutional framework, the broader common-law principle regarding the legal effect of constitutional preambles remains relevant to constitutional interpretation.
A mere preambular declaration cannot therefore be treated in the same manner as an operative constitutional provision unless it has been given effect through substantive legal provisions.
Recently, while attending parents’ general meetings in several schools in the Bugisu region alongside other stakeholders, I witnessed an emotional moment when children used poems to challenge their parents to pay attention to their needs, including making voluntary contributions towards school activities.
The children argued that refusing to contribute something towards supporting their schools amounted to neglecting them as parents. They even asked their parents who would look after them when they grow old if the parents were currently neglecting their needs.
It was an emotional scene.
The Attorney General, as the chief legal adviser to the government, recently provided guidance on how religious bodies should handle issues relating to fees and contributions in government-aided schools following a petition by religious leaders.
Whereas the Attorney General provided guidance on certain contributions, particularly in church-founded schools, the Permanent Secretary or Minister of Education ought to domesticate that guidance and formally communicate it to the affected schools.
Schools may not be able to effectively enforce such guidance in its present form without clear communication and direction from the Ministry of Education.
The arrest of headteachers of both primary and secondary schools over fees and contributions should therefore be carefully considered by investigators and political actors.
In many cases, school administrators are implementing decisions of Boards of Governors and Parent-Teacher Associations. These decisions are often based on Section 9 of the Education Act, which allows voluntary contributions by parents.
There has also been no clear legal challenge from parents against the provision permitting voluntary contributions.
Headteachers should, however, ensure transparency in handling any funds received from government or parents.
They should be accountable to those who make contributions and clearly communicate how much money the school receives from government and parents and how those funds are used.
Schools should also explain their official activities and expenditure to stakeholders.
This is important because headteachers have frequently been accused of misusing government grants and PTA funds to run schools.
At the same time, the Ministry of Education needs to urgently clarify its position on voluntary contributions.
I am privy to information from several headteachers who are considering early retirement. Others reportedly want to close the school term early, while some are struggling to feed teachers. Others are considering selling obsolete school items to manage the remaining days of the term.
In the Bugisu region, many headteachers have reportedly switched off their phones because of concerns surrounding the current enforcement of the no-fees position and other challenges associated with running schools.
I appeal to the government, particularly the Anti-Corruption Unit, to await formal communication from the Ministry of Education before proceeding with investigations relating to voluntary contributions.
The Ministry’s policy and guidance on whether parents should make voluntary contributions, as envisaged under Section 9 of the Education Act, is central to the question of whether headteachers should be arrested.
Those who have already been arrested should also be treated fairly and should not be subjected to harassment during investigations.
I further challenge State House teams involved in the anti-corruption campaign to remain mindful of Article 28(3)(a) of the Constitution, which guarantees a fair hearing and the presumption of innocence for every person accused of a criminal offence until proven guilty.
Article 42 is equally important as it provides for the right to just and fair treatment in administrative decisions.
Every person appearing before an administrative tribunal or authority should therefore be accorded the protections guaranteed by the Constitution.
The government and parents should be treated as partners in the education of Ugandan children, as clearly envisaged under Article 34(2) of the Constitution.
Rather than leaving schools, parents and headteachers to operate in uncertainty, the Ministry of Education should clearly pronounce itself on the legality and limits of voluntary contributions in government-aided schools.
Clear guidelines would protect parents, students, teachers and school administrators while ensuring accountability for every shilling contributed.
Uganda needs an education financing framework that respects the constitutional responsibilities of both the state and parents, while ensuring that no child is denied education because of poverty.
The writer is a legal scholar and academician from Bugisu.
