Universities could be dealt another blow if a proposal by the reforms team to restrict the institutions to only offer degree courses is adopted.
The Standard has established that the Presidential Working Party on Education Reforms want all universities barred from teaching diploma and certificate courses.
It emerged that the matter has split members of the task force as some argued that certificates and diploma courses all fall under higher education.
"And these can be taught either in university or from Technical and Vocational Education and Training (TVET) colleges. What is however true is that these TVETs cannot teach degree courses," said a senior member of the taskforce.
Others also argued that most universities have middle level colleges that would fall under the TVET arm.
Education stakeholders siting at the Centre for Mathematics, Science and Technology Education in Africa (CEMSATEA) June 6, 2023 for a validation meeting said a proposal was floated to 'limit universities from offering certificates and diploma courses.
If adopted, this proposal means an amendment to the Universities Act Section 20 (1) (e) would be instituted.
And if passed in Parliament and assented to by the president, this level of academic certifications will only be taught and awarded in middle level colleges.
The proposal now renews the debate on whether universities should be allowed to teach certificates and diploma courses, a matter that was adjudicated twice in court in 2015 and 2021.
A first attempt in 2015 by the Kenya National Association of Private Colleges (Kenapco) to challenge the amendment failed at the High Court, clearing the way for universities to offer the qualifications.
Kenapco moved to the High Court claiming that they were the institutions licensed to offer diplomas, certificates and bridging courses under the Technical and Vocational Training Authority (Tiveta) Act.
The University Amendment Act of 2014 under section 20 (1) (e) states that all universities are allowed to offer diploma and certificate courses.
Under the amended law, all public and private universities were allowed to admit students to diplomas, including postgraduate diplomas and 'other academic certificates.
The institutions were also allowed to admit students to degree courses, including postgraduate degree and honorary degrees.
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These were the changes to the Universities Act 2012 that sought to clarify sections of Charter.
Section 20 of the Universities Act previously only allowed universities powers to award degrees, including honorary degrees.
In their case, Kenapco claimed that universities, which are under the authority of Commission of University Education (CUE) and the Ministry of Education, had encroached on their operation by illegally offering courses in the nature of certificates, diplomas and bridging courses.
The National Association of Private Universities of Kenya (Napuk) were enjoined in the suit.
Then education Cabinet Secretary Jacob Kaimenyi supported the plan to restrict universities to only teach Degree and Postgraduate degree programs, noting that offering of certificates and diploma courses should be left to middle level colleges.
The association in court papers argued that the amendment to the Universities Act (2012) through the Statute Law (miscellaneous amendments) Act No 18 of 2014, infringed on their rights.
Kenapco also argued that the amendments were passed and assented into law without any stakeholder consultations or involvement.
"...in particular, the amendment to section 20 (1) (e) as it was enacted without proper public participation by the people of Kenya including the petitioner...," they argued.
In their prayers, the petitioner wanted universities restrained from marketing, advertising, promoting and or offering diplomas, certificates and bridging courses.
Justice Lenaola dismissed the case filed by Kenapco, the lobby that represented more than 200 member institutions within the Republic of Kenya.
The Kenapco case was supported by CUE that argued that the 2014 law weakened its role as the regulator of university education, making it unable to effectively continue carrying out its mandate.
"The amendments were introduced on the floor of the National Assembly and immediately passed without any reference to the public as well as relevant stake holders and against the ruling of the Speaker to the contrary,'' CUE argued.
CUE also argued that the amendment amounted to discrimination against colleges and instead favoring the Universities in order to defeat the commercial viability of colleges by denying them the right to fair competition.
"The amendments have resulted in a big conflict between the Universities Act and the Technical and Vocational Training Authority Act in that the said amendments have given the universities mandate to directly offer diplomas and certificate courses which are and ought to be a preserve of Technical and Vocational Training College," CUE argued.
But this debate did not end there. In 2018, the government made frantic efforts to calm simmering tension in universities.
This was merely three years after justice Lenaola ruling.
At the time, a fresh debate was raging on whether the institutions of higher learning should offer certificate and diploma programmes.
A high-level meeting was convened in September 2018, and it heard that universities are mandated in law to teach certificates and diploma under section 20 (1) (e).
Senior officials of Kenya National Qualifications Authority (KNQA), Technical Vocational Education and Training, attended the meeting.
Also present were officials of Kenya Universities and Colleges Placement Service (KUCCPS) and Curriculum Development, Assessment and Certification Council.
It later emerged that the third push to deny universities the mandate was a result of reports that qualifications offered by some institutions were not standardised.
In fact, it emerged that some students graduating had studied for few academic hours.
Then Principal Secretary in the State Department of Vocational and Technical Education (TVET) Kevit Desai said the government has no intention to stop universities from offering the certificate and diploma qualifications.
"By law, the universities are allowed to teach diploma. But what we are insisting on is that they must be accredited by Technical Vocational Education and Training Authority (TVETA)," Desai said.
Desai however said that the programmes offered must be regulated by relevant authorities to comply with standards set by Kenya National Qualifications Authority (KNQA).
Even with these assurances by the government, a second case was filed in 2021, asking court to declare Statute Law (Miscellaneous Amendment) Act 8 of 2014 to be unconstitutional flopped.
High Court in Nairobi dismissed the case filed by Robinson Kioko which would have barred universities to teach certificates and diplomas.
Kioko, in his suit papers, argued that opening universities to offer education which ought to be taught in technical colleges and institutes does not respond to the needs of the country to have a technical workforce.
Justice James Makau in his judgment said that the law is clear on what each student should have to be enrolled for a certificate and onwards and the number of hours he or she should have learned.
According to the judge, the law does not give learning institutions leverage to dish out certificates or even allow the transition to the next level without proper qualifications and time set for each course.
"This is not intended for all purposes and intention to be used to allow Universities in Kenya to offer Bridging, or Certificate or Diploma and Certificates course contrary to clear provisions; of University Act on legibility of a student to be admitted for undergraduate, or post graduate diploma, masters and Doctorate Programme," Justice Makau ruled.
He continued: "The Statute law (Miscellaneous Amendments) Act 2014 did not in any way allow universities to offer certificates that would enable students to be admitted in the University."
Education Cabinet Secretary Prof. George Maghoha urged the court to throw out the case, arguing that it had also been determined by Justice Isaac Lenaola (now a Supreme Court Judge) in 2017.