President Uhuru has no power to order the open-ended closure of schools in the country, according to the court’s ruling.
Justice James Makau said the indefinite closure of schools was a violation of school-enrolled children and learner’s right to education.
The Judge, therefore, 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 terming it illegal.
The court further declared the decision by the Education CS George Magoha without holding consultation 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 the partial reopening of schools that saw Grade Four, Standard Eight, and Form Four students resumed in-person learning.
Through his lawyer Harrison Kinyanjui, Mr, Aura argued that the Basic Education Act confers National Education Board powers to establish measures to ensure all children attend and remain in school to complete basic education requirements.
Aura pointed out that there was no Executive Order was issued by the President to validate the decreeing of the indefinite closure of schools.
“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 through this argument that the said justification proffered by Education CS Magoha and Health CS Mutahi Kagwa of threats of covid-19 to learners to indefinitely close in-person schooling across Kenya was unconstitutional.
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“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,” Aura argued.