President Uhuru Kenyatta has no power under the Basic Education Act to order the open-ended closure of schools in the country, the High Court ruled on Thursday.
Justice James Makau held that the indefinite closure of schools in Kenya is a violation of school-enrolled children and learners' right to education.
As a result, the judge ordered in-person learning to resume for all classes not later than 60 days from November 19, 2020.
The court also banned community-based learning, declaring it illegal.
Further, the court declared 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 violation of the Basic Education Act.
The suit was filed by a parent, Joseph Enock Aura, before Grade Four, Standard Eight and Form Four students resumed in-person learning
Through his lawyer, Harrison Kinyanjui, the parent argued that the Basic Education Act confers National Education Board powers to put in measures in place to ensure all children attend and remain in school to complete basic education requirements.
According to Aura, no Executive Order was issued by the President to validate the decreeing of the open-minded closure of schools across Kenya as the State of the Nation Address neither bears 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 indefinitely close in-person schooling across Kenya 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.
Further, the parent claimed that by arbitrarily ordering the closure of schools to an uncertain time in the future, the Education CS diminished the international competitiveness of Kenyan education products in comparison to other countries.