Court orders Education Ministry to form Quality Assurance Council
Education Cabinet Secretary Julius Migos Ogamba.
What you need to know:
- In the decision, Justice Mugambi said the conscious failure to appoint the council against an express statutory provision entitles the court to review the inaction of the government.
- “In any event, I would hold that deliberate failure to enforce a specific statutory provision whose objective is clear amounts to undermining the achievement of the stated purpose to the detriment of the public,” said the judge.
The High Court has directed the Ministry of Education to set up the Education Standards and Quality Assurance Council (ESQAC) within 60 days.
Justice Lawrence Mugambi on Monday further said the ministry should appoint relevant officers to the council as required by section 64 of the Basic Education Act.
The judge said the failure of the ministry to establish the council as required by the Act was an affront to the rule of law and principles of governance.
“To allow the Executive (Ministry) to act as it wishes in the circumstances will be to diminish the authority law and to that extent that of Parliament against the Constitutional doctrine of separation of powers,” the judge said.
Justice Mugambi dismissed the argument by the ministry that Dr Christopher Galgalo Ali, who filed the case, did not demonstrate how educational standards have fallen due to the non-establishment of the ESQAC.
The court said the argument was untenable as principally what was in issue was the arbitrary refusal to implement an express statutory provision for which it has no discretion to exercise.
“Besides, it will be denying the children the benefit of getting quality education standards which is the objective behind that provision in the Basic Education Act that is geared toward ensuring that quality education standards are maintained through this structure,” said the judge.
Dr Ali, a former head of the council, moved to court in 2022 arguing that the ministry was in breach of Sections 64 and 65 of the Basic Education Act.
He said the failure to give effect to the statutory intention of a functional and operational council as stipulated by law.
Dr Ali said the continued non-operationalisation of the ESQAC and the non-appointment of the quality assurance officers amounts to psychological torture on the teachers and students, especially with the establishment of the Competence Based Curriculum (CBC).
He informed the court that the Department of Education obtained Sh40 million every year for the operationalisation of the council yet none had been established so far.
He said he had written several correspondences to the ministry yet there was no response or indication as to when it would be established.
In the decision, Justice Mugambi said the conscious failure to appoint the council against an express statutory provision entitles the court to review the inaction of the government.
“In any event, I would hold that deliberate failure to enforce a specific statutory provision whose objective is clear amounts to undermining the achievement of the stated purpose to the detriment of the public,” said the judge.
