Court: Uhuru order to close schools unconstitutional

Friday, November 20th, 2020 00:00 |
Justice James Makau in court. Photo/PD/PHILIP KAMAKYA

The High Court yesterday declared President Uhuru Kenyatta’s directive to close the schools in the country to contain Covid-19 pandemic as unconstitutional.

In his decision, Justice James Makau (above) said  Uhuru had no power under the Basic Education Act to order the closure of schools in Kenya as he did in March this year.

“I therefore hold that the open-ended closure of schools in Kenya was a violation of Kenya’s school enrolled children and learners’ right to education,” ruled the Judge.

On the issue on whether the president address dated March 15 directing close of schools was gazetted, the Judge found that the President is entitled to address any issue of national concern per Article 10 of the Constitution.

Class resumption

 As a result, the judge ordered in-person learning to resume for all classes not later than 60 days from November 19.

“An order is hereby issued compelling Education Cabinet Secretary George Magoha to forthwith direct the re-opening of in person learning institutions and schools in Kenya while observing the health and safety guidelines and considering safe environment commencing forthwith and not later than 60 days of this order for learning institutions and schools across the republic of Kenya so as to have all the learners in learning institutions and schools enjoy in person learning,” ruled Makau. 

The court further declared the decisions of Magoha without holding consultations with the National Education Board and respective County Education Boards as unconstitutional and a violation of the Basic Education Act.  

The decision comes in a suit filed by a parent, Joseph Enock Aura, before Grade Four, Standard Eight and Form Four students resumed in-person learning.

“l therefore find that the aspect of the petitioners ‘s case remains unchallenged and the plea to re-open in person schooling is not challenged in terms of the available evidence,” said Makau. 

The court also declared Community-Based learning which the State had attempted to roll out on September 30, as illegal. 

Makau said the state did not deny the petitioners contentions Community-Based learning programme was unilaterally commenced without consultations with stakeholders and was not relevant provision of the Basic Education Act. 

He added that there was no evidence that sixteen member committee appointed by the CS and the committee made a report on the same programme. 

Aura moved to court in August on claims that the indefinite closure of schools was affecting children, yet the government had failed to put in place measures to address the issue, since the institutions were closed in March this year. 

The father of three argued in his petition that in-person learning is the best when it comes to the education of children rather than virtual or any other method.

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