RE: DEMAND FOR UNCONDITIONAL RE-OPENING OF IN-PERSON SCHOOLING AND OPENING OF ALL SCHOOLS AND LEARNING INSTITUTIONS IN KENYA, & VIOLATIONS OF inter alia ARTICLE 28, 29(d), 43(1)(e); 53(1)(b) AND 53(2) OF THE CONSTITUTION OF KENYA & OBJECTIONABLE ARBITRARY OPEN-ENDED CLOSURE OF SCHOOLS ACROSS KENYA BY THE CABINET SECRETARY, MINISTRY OF EDUCATION
We act for such of the parents of school-going children across Kenya seeking the forthwith and unconditional opening ofin-person schooling in Kenya, as represented by MR. AURA ENOCK, and in furtherance of their stated instructions in regard to the referenced subject, we write to you as hereunder stated.
Unconstitutionally and unlawfully, you have purported to close down education institutions/schools across Kenya operated by the Government as well as private-run educational/learning institutions in an open-ended manner from March 2020 to January 2021 (which you have stated as doubtful), without considering the gravity of the injury thereby visited and inflicted on the helpless school-going Kenyan children and learners.
It is not lost to these parents that simultaneous with your declaration of closure of schools, other adult persons in Kenya continue to enjoy the daily realization of their dreams, work schedules, business expansion, and aspirations over the same period; you have unlawfully discriminated against the voiceless school-enrolled, school-going children solely on account of their AGE.
This constitutes unconstitutional discrimination against school-going children and learners in Kenya, and in particular a gross violation of Article 27(4) of the Constitution of Kenya. You swore to uphold the Constitution of Kenya and the Rule of Law in the execution of your portfolio, which oath you have now broken, and continue to break as long as the draconian decision to close schools across Kenya continues.
Your said act has further breached Article 53(2) of the Constitution of Kenya, as read with Section 4(1) of the Children’s Act, which place the consideration of the best interests of children as of paramount imperative when making any decisions implicating Kenyan children.
It is apparent that you have no consideration for the welfare and the BEST interests of Kenyan children, and are serving foreign interests peddled by foreign entities in the name of, and to justify “Corona virus”.
Kenyans’ rights to education pursuant to Article 43(1)(p) of the Constitution has also been infringed by your unilateral edict, and continues to be infringed by the arbitrary and draconian closure of learning institutions of learners across the board.
We bring to your attention the provision of Article 2(2) of the Convention on the Rights of the Child which states that, “States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child’s parents, legal guardians, or family members.”
For the record, Kenya is a State Party to this Convention, having signed the Treaty on 26″January 1990 and acceded to the Convention on 30 July 1990. The Treaty came into force on 2 September 1990, in accordance with Article 49(1) thereof, and pursuant to Article 2(6)of the Constitution of Kenya, the provisions of this Convention are part of Kenyan law.
Indeed, in its report to the UN Committee on the Rights of the Child, the then Minister in charge under the Office of the Vice President and Ministry of Home Affairs, presented the second periodic report on Kenya’s implementation of the UN Convention on the Rights of the Child, and stated:
“The Government is committed to the provision of quality education and training as a human right for all Kenyans in accordance with international conventions, such as the EFA goal, and is developing strategies for moving the country towards the attainment of this goal.”
This undertaking is NOT what is happening currently; rather, the very opposite is what is being executed. It is untenable that the Kenyan child is as at now uninhibited, unhindered, and totally unencumbered to attend crowded open-air markets, unregulated supermarkets, open-for-all cafeterias, places of worship (which as of August 11th 2020 admits children of 6 years and over), but irrationally you have continued to discriminate against these same children blocking their attending in person schools.
You cannot rationally claim and justify the closure of schools on the ostensible risk ofour children being exposed to “Corona Virus” infections in schools as though these are special incubation points that pose a HIGHER or GREATER danger than the social points stated in the foregoing paragraph.
Neither can you claim that Kenyan children stand at a more vulnerable position to this “Covid-19” infection than children in Sweden, UK, Taiwan, Japan, Germany, France, Italy, Ivory Coast, Tanzania, DRC, Italy, Netherlands, Denmark, Uruguay, most States in the USA, and many others, all of which countries have REOPENED their learning institutions to their children for in-person schooling.
In fact, Taiwan never officially closed schools (the only measure taken was to extend the winter break by 10 days in February 2020, solely to disinfect education facilities, distribute medical supplies, and implement new procedures for schools with confirmed coronavirus cases).
Schools in Taiwan to date do not have any social distancing or face mask measures and only conduct temperature checks, although some use plastic tabletop desk partitions to protect the children against a risk ofinfections.
Likewise, Sweden NEVER closed its schools. Denmark was at the forefront debunking the theorizing that young children stand exposed to “Covid-19” infections by re-opening its schools to young children on April 15t, 2020.
Against this backdrop, how can your Ministry speak of Kenyan education being competitive globally in the future when your Ministry irrationally and arbitrarily closes schools whereas OTHER similarly exposed, similarly standing nations of the World have OPENED and to date run their schools, without the doomsday scenarios you have incessantly painted?
By what fiat do you destroy the ambitions, dreams, and aspirations of these innocent children who have no forum, no opportunity, no chance, no window to SPEAK to you about THEIR personal suffering and acute pain? How do you convince these innocent souls that you are allegedly acting in their “best interests” when they see for themselves their Swedish compatriots, or their Tanzanian neighbours continue with their education uninterrupted?
NO State of Emergency has been declared in Kenya, pursuant to Article 58(1) of the Constitution of Kenya by the President of Kenya. It follows that no person, not even the President of the Republic of Kenya has either the Constitutional or Statutory mandate to close any school, absent an exercise of powers under the provisions of Article 58(1) of the Constitution of Kenya, which as stated has NOT been invoked to date.
Lacking legal underpinning, the bases of the open-ended closure of schools in Kenya are therefore wholly extraneous to Public Health issues, and have no rational nexus howsoever with the stated “Covid-19” justifications proffered, else in the comity of nations, Sweden would have had similar closure of schools, and Tanzania (and other countries explicated in the preceding paragraphs) would STILL have had their schools closed to date.
Section 7 of the Children‘s Act, provides that “every child shall be entitled to education, the provision of which shall be the responsibility of the Government and the parents.” The overwhelming majority of Kenyan parents are ready and willing to provide their children with education as mandated by statutory but your Ministry is the blockade irrationally standing in the way.
Article 43(1)(/) of the Constitution of Kenya equally stipulates that every person has the right to education.By decreeing that NO person will attend educational institutions across Kenya from March 2020 to January 2021 without any legally or scientifically justifiable bases, you have violated, and are violating this Constitutional imperative
The psychological and mental torture inflicted on school-going Kenyan children in consequence of the open-ended closure of schools by your edict since March 2020 to date is gravely injurious to them.
Kenya’s Children and pre-adult learners are entitled to legal protection from this psychological abuse by the State in the manner stated, in light of the fact that the Government of Kenya has totally failed to roll out programmes to alleviate hardships afflicting Kenya’s children.
Are these children being offered as sacrificial lambs for causes extraneous to FACTUAL public health concerns? Apparently.
Article 29(d) of the Constitution of Kenya forbids the subjecting of any person to torture in any manner by any other person, whether physical torture or psychological torture, yet the continued open-ended closure of schools pursuant to the Government of Kenya’s edict which you are purveying is perpetrating deep psychological torture on school-going Kenyan children, especially those who had prepared and planned to complete their primary and secondary schooling as finalists in the year 2020.
For you to now direct that these children are to REPEAT their final classes in the year 2021 on dubious and unsound bases is unconstitutional, a violation of Section 7 of the Children Act, and a violent sabotage of these children’s lives in a manner constitutive of breaches of Article 28 and 29 of the Constitution of Kenya.
Section 13(1) of the Children Act, provides that, “A child shall be entitled to protection from physical and psychological abuse, neglect, and any other form of exploitation including sale, trafficking or abduction by any person.”
Article 28 of the Constitution of Kenya stipulates that everyone has the right to dignity, and the actions of the Government of Kenya in closing schools and learning institutions in an open-ended manner as now complained of is an indignifying act against these children and learners across affected learning institutions.
Over the same period of the closure of schools across Kenya, Departments in the Kenya Government are callously conducting “normal business” without imposed demands to suspend them, unlike the instance and case of Kenyan schools that remain closed, with no functions of whatever kind taking place in schools, as though Kenyan school• going children have no lives, goals, or ambitions; or that the goals of these children and ambitions are of no significance, or value.
Meanwhile, and by contrast ALL recreational and outdoor play facilities for children across Kenya have remained closed since March 2020 to date, gravely hampering the physical development of children.
This cannot, and could never be in the best interests of children who are effectively in a state of LOCK UP. The Government of Kenya has PROHIBITED these children from SCHOOLING and have left them to roam free, without any care that they stand exposed to moral, spiritual and physical harm, thereby threatening their development and survival.
Section 4(1) of the Children’s Act, provides that II every child shall have an inherent right to life and it shall be the responsibility of the Government and the family to ensure the survival and development of the child.”
Your Ministry has purported to launch II online” learning programs that remain a pipe dream across Kenya. Your Ministry has to accept the harsh truth that you are injuring helpless children and in fact abusing your power to FORCE these children to stay at home against the wishes of the overwhelming MAJORITY of parents and rational stakeholders.
Of course, there are those who are paid pipers opposing the resumption of normal learning in our schools, but who fall mute when accosted by the Sweden policy of open schools. Are Swedish children more special?
The Government of Kenya allocated Ksh. 437 Billion in the 2019/2020 budgetary year for EDUCATION, and it cannot be an excuse that your Ministry has no funds to allocated to a resumption of normal learning in Kenya’s schools, considering that almost half the year schools across Kenya have remained closed.
Your Ministry is expressly mandated by Article 10(2)(a) of the Constitution of Kenya to engage parents across Kenya in applying the principles of consultations, fairness, and public participation in making decisions in ostensible furtherance of your portfolio affecting their children.
Indeed, Section 4(l) of the Basic Education Act stipulates the guiding principles in the rolling out of basic education in Kenya, which inter alia include:
“promotion of good governance, participation and inclusiveness of parents, communities, private sector and other stakeholders in the development and management of basic education;”
Your edict has caused untold losses (from financial to closure of schools) occasioned to proprietors of schools, and seeing the comparative responses from other jurisdictions, it is clear that you ought to be held liable for arising damages.
Our instructions are to demand from you, WHICH WE HEREBY DO, that you forthwith declare (and not later than August 18th, 2020) the immediate resumption of open schools and learning institutions in Kenya, which in any event should be open not be later than September 1st 2020 for the resumption of physical learning in Kenyan schools and learning institutions, and if this communication will not have been so made to the Kenyan parents, learners, school-going children and all stakeholders in the education sector, we have express instructions to lodge suit on August 19, 2020 for judicial intervention on behalf of the millions of Kenyan children whose lives you are crushing, under the yoke of your arbitrary edict of open ended school closures. They cannot breathe.
TAKE FURTHER NOTICE that such legal, and any ancillary proceedings will be lodged at the very grave risk of your having to bear arising costs, and our clients shall thence have recourse to the pursuit of Motions against you for having violated the Constitution of Kenya as against the helpless millions of school-going Kenya children, your declaration of unfitness to hold office in consequence thereof your reckless and negligent abdication of patriotism to Kenya and ceding these to foreign interests, and the perpetration of agendas alien and injurious to the best interests of the Kenyan children; all of which will be without any further or other reference to you in default of your compliance.
By a copy of this letter we hereby notify the under listed interested parties as relevant stakeholders in the event of your default in compliance as herein demanded, necessitating litigation.
2) THE CABINET SECRETARY, MINISTRY OF HEALTH
3) THE NATIONAL COUNCIL FOR CHILDREN’S SERVICES
4) THE HON. ATTORNEY GENERAL
s) TEACHERS SERVICE COMMISSION
6) KENYA PRIVATE SCHOOLS ASSOCIATION
7) KENYA PARENTS ASSOCIATION
8) KENYA SECONDARY SCHOOL HEADS ASSOCIATION
9) KENYA PRIMARY SCHOOL HEADS ASSOCIATION