President Uhuru Kenyatta has no authority under the Basic Education Act to direct the open-ended closure of learning institutions in Kenya, the High Court ruled on Thursday.
Justice James Makau judged that the indefinite closure of schools in Kenya is a breach of school-enrolled children and learners’ right to education.
As a consequence, the judge established that in-person learning to continue for all learners not later than 60 days from November 19, 2020.
The court also outlawed community-based learning, terming it illegal.
Further, the court affirmed the decisions of the Education Cabinet Secretary (CS) George Magoha without holding consultations with the National Education Board and respective County Education Boards as unconstitutional and a breach of the Basic Education Act.
The case was filed by a parent, Joseph Enock Aura, before Grade 4, Standard 8 and Form 4 students reopened for in-person learning
Represented by his lawyer, Harrison Kinyanjui, the parent contended that the Basic Education Act gives National Education Board powers to put in standards in place to guarantee that all children attend and remain in school to achieve basic education requirements.
According to Mr Aura, no Administrative Order was issued by the President to authorise the commanding of the open-minded closure of schools across Kenya as the State of the Nation Speech neither holds the seal nor the signature of the President compared to an Executive Order issued by the President in February.
“Hence it fell short of the constitutional threshold of a lawful decision of the President prescribed in Article 135 of the Constitution of Kenya,” stated Aura in court documents.
It was his argument that the purported justification proffered by Education CS Magoha and Health CS Mutahi Kagww of threats of covid-19 to learners to generally shut down schools across the country was unconstitutional.
“By decreeing that no person will attend educational institutions across Kenya from March 16, 2020, to January 2021 without any legally or scientifically justifiable basis, the Education CS violated the Constitution,” he claimed.
“For Education CS to now direct that these Children are to repeat their final class in the year 2021 on dubious and unsound bases is categorically unconstitutional and violation of section 7 of the Children Act,” he argued.
Additionally, the parent alleged that by arbitrarily ordering the closure of schools to an undecided time in the future, the Education CS abated the international competitiveness of Kenyan education outcomes as opposed to other countries.