Schools closure: Magoha overstepped his powers, says court

Education Cabinet Secretary George Magoha acted beyond his powers by prolonging the closure of schools without consulting the learners’ parents and guardians, the High Court has declared.

While ruling on a petition filed by a parent challenging closure of schools due to the Covid-19 pandemic, Justice James Makau found that the CS’s decision was beyond the powers as per section 4 (1) and section 70 of the Basic Education Act.

Justice James Makau said the CS was supposed to consult the affected learners in diverse learning institutions in conjunction with the National Education Board and respective county education boards.

The court said the open-ended closure contravened fundamental rights and freedoms of school-going children and learners.

Community learning

Further, the judge declared that the government’s idea of community-based learning as announced by the CS in July 30, this year was null and void for want of public participation and consultation with the National and County Education Boards.

The court found that community-based learning was unilaterally started as there were no consultations with stakeholders and it was not on relevant provisions of the Basic Education Act.

“There was a 16-member committee appointed by the Cabinet Minister but there is no evidence that the committee made any report on the programme,” said the judge.

He added that even if they did, since the same is not supported by any provisions of the Basic Education Act, the project would be beyond the powers of the Act.

“It is null and void for all purposes and intentions,” said the judge, adding that the Ministry was unable to demonstrate that the programme was within the law.

Justice Makau issued an order restraining Prof Magoha and the Teachers Service Commission (TSC) from undertaking or executing the planned community-based learning project.

The court directed the CS to re-open the schools for in-person learning no later than 60 days, observing the health and safety guidelines and considering safe environment.

On the phased re-opening of schools, the court noted that the Ministry has opened schools for Grade Four, Standard Eight and Form Four learners.

“It is assumed that they have put in place measures to contain the spread of Covid-19. Secondly, there is no policy in place controlling person-to-person contact in respect of the pupils who are not attending  schools but are let loose and allowed to roam anywhere anytime,” said the judge.

Children’s welfare

Justice Makau ruled that the welfare of children is better served when they are at school that when out of school without any control as regards person-to-person contact.

The parent who sued, Mr Joseph Enock Aura, had told court that the decision to close schools was draconian and a violation of learners’ rights and provisions of the Basic Education Act.

He said the open-ended closure of schools from March 16, 2020 to date is not a solution to a ‘little known public health issue classified as Covid-19’, and whose mortality rate is not certifiable to date.

“Subjecting the children to such prolonged closures from school due to unfounded reasons, there has been severity of pain and suffering on these pupils and students, in tandem with the provisions of Article 1 of the Convention against Torture,” said the parent.