The high court has declared the decision to close schools in Kenya in the wake of the threat posed by the coronavirus pandemic as unconstitutional.
In his ruling, Justice Makau said the indefinite closure of schools was a violation of the rights of children enrolled in Kenya’s school as well as their right to education.
Justice Makau also ordered in-person learning to resume for all classes within 60 days as of 19th of November 2020.
Through his lawyer, Harrison Kinyanjui, Joseph Enock Aura had petitioned against the indefinite suspension of learning arguing that the Basic Education Act confers National Education Board powers to put in place measures to ensure all children attend and remain in school to complete basic education requirements.
According to Aura, no Executive Order was issued by President Uhuru Kenyatta to validate the decree of the closure of schools across the country as the State of the Nation Address neither bears the seal nor the signature of the President, unlike the Executive Order that was 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.
Aura in his application further wanted the court to compel Health Cabinet Secretary Mutahi Kagwe to re-open all play areas and recreational centres for all children across the country.
“The oppressive psychological and mental torture inflicted on the school-going children because of the open-ended closure of schools affected by the ministry from March till now has gravely injured them,” reads the court documents.
The petitioner had argued that by arbitrarily ordering the closure of schools to an uncertain time in the future, the government diminished the international competitiveness of Kenyan education products in comparison to other countries.
The government has since announced a new academic calendar that will see basic learning resume across all schools on January 4th.
Education Cabinet Secretary announced the reviewed calendar on Monday following a meeting with education stakeholders.
The government had in October began gradual re-opening of in-person learning, with Grade 4, standard Eight and form four learners resuming classes.