Kenya Law Weekly Issue 001/24-25

Held:

1. The petitioner had not filed a supporting or further affidavit in the matter. By dint of Rule 11(1) and (2) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules), a petition filed under the Rules could be supported by an affidavit. In addition, if a party wishes to rely on any document, the document shall be annexed to the supporting affidavit or the petition where there was no supporting affidavit.
2. Other than being substituted as the petitioner, the petitioner neither filed any affidavit nor annexed any document to the petition. The only affidavit on record and annexures were those of Esther Awuor Adero Ang’awa, a stranger to the petition. To that extent, therefore, the many issues of facts advanced in the instant petition found no support.
3. Under the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedures Rules, 2013, for the enforcement of the Bill of Rights and which by the practice of the Court had been used for all constitutional litigation, there was no requirement that a petition be supported by an affidavit on the facts. Failure to file an affidavit or annex documents was not fatal to a petition. The instant petition raised both issues of law and fact. The issues of fact found no support.
4. The petitioner needed to prove whether the omission by the 1st Respondent to make regulations resulted in a failure to realize the intention of the Basic Education Act; or was an impediment in the exercise of fundamental rights or freedoms of the petitioner. That burden had not been discharged there being no evidence by way of affidavit or otherwise.
5. CBC was rolled out in all public schools in the country. Stopping implementation as sought by the petitioner would only serve to wreak havoc and cause disorder in the country’s education system. That would ultimately be very prejudicial and have a disproportionate effect on the children and the parents. It would offend the right to education and the best interest of the child principle. Overall, that would be against public interest and the balance of convenience tilted towards maintaining the system.
6. The doctrine of Proportionality was a legal method used by courts, typically constitutional courts, to decide hard cases, which were cases where two or more legitimate rights collided. In such cases, a decision necessarily led to one right prevailing at the expense of another. To decide such cases correctly, the court must balance the satisfaction of some rights and the damage to other rights resulting from a judgment.
7. The CBC was already rolled out and over eight (8) million children were undergoing the new system. Teachers had undergone retooling and teaching materials and aids were prepared and distributed. Classrooms were built to cater for Junior Secondary School learners. The government made budgetary allocations, and indeed, funds had so far been spent on the programme. The children already enrolled in the CBC system have advanced substantially in their studies as well as age. The 4th Respondent in a bid to further implement the CBC sought to employ more teachers. Granting the orders as sought would lead to a wastage of Government resources and taxpayers’ money which would lead to a colossal loss of public funds. That would ultimately offend Article 232 of the Constitution. In addition, it would amount to loss of employment as well as wastage of all the resources that the government had invested in the retooling/training of the teachers.
8. The petitioner’s case was that CBC was implemented on the basis of Basic Education Curriculum Framework 2017 and Sessional Paper No. 1 of 2019 without the necessary legislation. While that was an omission on the part of the Respondents, it was worth noting that the petitioner approached the court over 2 years after the implementation of CBC. No evidence had been tendered to explain the inordinate delay. At the time of the filing of the petition, CBC was already at an advanced stage. Therefore, despite the lapse on the part of the respondents, acceding to the petitioner’s plea would be tantamount to throwing the baby out with the bath water.
9. The court was alive to its power and duty to remedy omissions through the grant of appropriate reliefs outside Article 23(3) or the reliefs sought in the petition by way of structural interdicts. The instant petition was a suitable case for such intervention. The Report of the Presidential Working Party on Education Reform (PWPER) identified the gap in Section 41 of the Basic Education Act wherein they made a recommendation for the amendment of the said section to provide for the system and structure of education in Kenya. Granting the orders as sought by the petitioner would offend the public interest and prejudice children irreparably. In any event, the petitioner did not tender any evidence to show any prejudice that he would suffer should the CBC continue being implemented in Kenya.
10. The petition was filed on September 16, 2021, while the CBC was rolled out in 2018 as a pilot phase, and in 2019 as the effective rolling out date. A child who started CBC from the piloting stage [2018] had by the time of filing the petition spent about four (4) years in the system, and the child who started CBC from its effective implementation [2019] had at the time of filing spent three (3) years in the system. The Petitioner brought the petition about four (4) years after the pioneer class of CBC. The issues raised in the petition and the remedies sought were of great public interest and would have far-reaching ramifications on education in the country and children’s constitutional right to education. It could not be gainsaid that a timely filing of the petition was necessary. There was no attempt on the part of the Petitioner to explain the delay, hence the delay was inordinate and inexcusable.
11. Public participation in public affairs depended on the specific issue and required four basic parameters;
    1. the public should have reasonable access to the information they were asked to provide their views on.
    2. the information should be made clear and understood, with language being a crucial factor.
    3. the public should have sufficient time to interrogate the information and provide their views.
    4. there should be a defined process for the public or stakeholders to respond to the matter. That approach ensured that the public had a clear understanding of the matter at hand.
12. Public participation should be more than a mere formality; it should enable individuals to express their viewpoints, thereby guaranteeing the fulfilment of legal and constitutional obligations. The same did not require everyone to share their views, as that would give a virtual veto power to each individual in the community. However, a program must show intentional inclusivity and diversity, avoiding attempts to exclude genuine stakeholders. The subsidiarity principle should be considered when designing a public participation regime, ensuring those most affected have a bigger say and that their views were deliberately sought and considered.
13. The respondents, particularly the 1st respondent had serious engagements with major stakeholders including, the public, learners, Kenya National Union of Teachers, Kenya Union of Post Primary Teachers, field officers and faith-based organizations in the various steps towards the implementation of CBC. It was also confirmed that the 1st respondent worked closely with the 2nd, 3rd and 4th respondents as the latter executed their respective mandates under the law. The 1st respondent also actively engaged the 5th respondent, 2nd, 3rd and 4th interested parties, key stakeholders in the education sector. The respondents achieved the legal threshold for Public participation as envisaged in law. In the premises, the claim by the petitioner that there was no engagement with the stakeholders and the public was devoid of merit.
14. Numerous stakeholder and public engagements were held by the respondents before the CBC was rolled out. They included consultative forums, training, seminars, validation workshops, meetings to develop curriculum, call for memoranda through the daily newspapers, consultative processes involving relevant government agencies and authorities, teachers’ unions, parents and pupils. The petitioner had a forum within which to agitate his concerns for consideration and possible redress.
15. the Petitioner did not attend any of the important engagements. When the Presidential Working Party on Education Reform was set up on September 29, 2022, members of the public were invited to present their concerns on matters of education reforms. The Petitioner had not indicated that he participated in said forum. When the report was finally released to the President on June 9, 2023, the said report was filed in court and parties were given an opportunity to comment or make submissions on the same. The Petitioner informed the court that he had no reactions to post.
16. Within the report and among the many recommendations in the report, there was a recommendation touching on matters around the Basic Education Act and in particular sections 41, 43 and Regulation 79(b) of the Basic Education Regulations 2015. The petitioner had an available forum within which to have his issues resolved other than through the instant petition which included the opportunity to present them to the Presidential Working Party on Education Reform.
17. What the petitioner described as child labour, were activities that the CBC had adopted to enable the respondents to promote, protect and fulfil the right to education for the child towards the realization of articles 43 and 53 of the Constitution as well as the State obligations as set out in the Vision 2030 and the East African Treaty in so far as preparing the children for the labour market was concerned. The shift to CBC was necessary in the evolving technological and industrial advancements to ensure that necessary relevant skills were imparted to learners. No evidence had been placed before the court to demonstrate that CBC constructively designated children as recruits for casual labour.
18. The Petitioner accused the respondents of introducing and implementing a system and structure of education under the CBC which required single use of course books per child per grade thereby increasing the risk of environmental degradation in contravention of articles 21(3), 42 and 69(1) (g) and (h) of the constitution. The burden of proof was on the petitioner to demonstrate that the course books were a threat to the environment. No evidence whatsoever was placed before the court in that regard and the Petitioner therefore fails to prove that limb.
19. A public officer was not liable for anything done in execution of the functions of his office if done in good faith. Where a statute expressly provided for a specific action by a Cabinet Secretary or any Public Officer, as the case maybe, the legal duty must be discharged in default of which censure or sanction may be decreed by court. Court took judicial notice of the fact that despite the 7th respondent’s involvement in the initial stages of transition to the CBC, by the time CBC was implemented, he had long left the Ministry of Education having moved ministries on January 26, 2018. In those circumstances, the alleged violations and extent of liability on his part as a person had not been established and/or proved to a degree of certainty and the Court would be reluctant to visit any censure or sanction on him.
20. There was no evidence in support of the prayer for injunction and conservatory order either and therefore the legal threshold for injunction or conservatory order has not been achieved. Public interest and the likely prejudice that would be visited on the children of the country and the general disruption and disorder that would occur should implementation of CBC be stopped at the present stage, ought to be considered. On the flip side of the coin, the petitioner had not demonstrated any prejudice he would suffer should the implementation continue.
21. Regulations under Section 73 of the Basic Education Act had not been made, and in order to ensure standards, quality and relevance in curriculum development was continuously developed, reviewed, evaluated and monitored, an order was necessary to ensure such regulations were in place. Within the report of the Presidential Working Party on Education Reform there were numerous recommendations on the Education Sector, with specific timelines for implementation. The recommendations if implemented would impact positively on the CBC system and the education sector generally. An order was necessary to ensure the implementation of the recommendations necessitating monitoring, evaluation and implementation of the report. There was need for capacity building and awareness creation on the recommendations as generated by the report on The Presidential Working Party on Education Reform.

Petition dismissed.

Orders

1. The 1st respondent shall initiate the process of amending section 41 of the Basic Education Act to align the structure of education with the CBC within 120 days.
2. TThe 1st respondent shall make regulations as demanded of him by section 73 of the Basic Education Act No. 4 of 2013 within 120 days.
3. TThe 1st respondent shall set up a committee to ensure the implementation of the recommendations of the report of The Presidential Working Party on Education Reform dated June 9, 2023 within 90 days.
4. No orders as to costs

Held:

1. Jurisdiction was the power or authority given to a court to hear and determine a dispute presented before it. The challenge to the jurisdiction of the Court to hear a matter was a threshold question. The court had to weigh the objection carefully and determine the fundamental question, namely; whether it had jurisdiction over the matter. If the court determined that it had no jurisdiction to hear a matter, it was the end of that matter and the court should not take any further step, but down its tools.
2. The jurisdiction of the High Court was provided for in article 165(3) of the Constitution. The import of article 165(3) was to authorise the High Court to decide all matters other than those reserved for other courts as contemplated in article 162 (2) and as restricted by article 165(6). The sweep of the constitutional authorisation given to the High Court could not not be lightly taken, or given up on request or application. That was; the High Court had wide jurisdiction to hear and determine various matters that could be brought before it. Whether or not the Court has jurisdiction to hear and determine the instant petition must, therefore, be viewed through the prism of article 165(3)(b) and (d) (ii).
3. The issues raised in the instant petition centre on whether the impugned communication was an administrative action subject to the review jurisdiction of the High Court, or not. There was also the underlying question of whether rights or fundamental freedoms in the Bill of Rights had been denied, violated, infringed or threatened through the impugned action; or whether the action was inconsistent with, or in contravention of, the Constitution and the law.
4. What was before the High Court was a constitutional petition brought under article 22 as read with articles 23(1) and 165(3) of the Constitution, challenging what the petitioner perceived to be constitutional infractions on various articles of the Constitution. The petitioner wanted the High Court to exercise its mandate under article 165(3) (b) and (d)(ii) to investigate and determine the veracity, or otherwise of the alleged infringements and redress the violations, if any.
5. One of the issues that the High Court was called upon to determine, was whether the communication of January 18, 2024 was an administrative action or a judicial decision. That was a question of fact that could only be determined upon hearing parties. The issues raised in the petition could not be determined through interlocutory proceedings, namely; the motion application and preliminary objection, when a claim of infringement of fundamental rights and freedoms in the Bill of Rights had been raised.
6. It was not a must that a petition challenging violations or infringements of constitutional rights and fundamental freedoms in the Bill of Rights had to succeed. Rather, it was a cardinal principle in Kenya’s constitutional architecture and philosophy, that a petitioner who had got to the court on the basis that rights and fundamental freedoms in the Bill of Rights had been violated or infringed, should be accorded an opportunity to be heard so that the court could make an informed decision on the issue, rather than shut out such a petitioner from the seat of justice at the preliminary stage unless that was an open and shut case.
7. The issues raised were not idle. They fell within the ambit of article 23(1) as read with article 165(3)(b)(d)(ii) and, therefore, under the jurisdiction of the High Court. The court had to determine whether indeed, rights and fundamental freedoms in the Bill of Rights had been denied, violated, infringed or were threatened through the impugned action. The High Court had to also decide whether both the actions complained in that petition and those issues raised by the respondents and 3rd -10th interested parties against the petition, were inconsistent with, or in contravention of, the Constitution. Courts were the protectors of the Constitution and the fundamental values embedded in it, that was; the rule of law, fundamental justice and preservation of the democratic process.
8. The 7 prayers sought in the petition were declarations of unconstitutionality and orders mandamus and certiorari. The petition also sought any other relief the court could deem fit and just to grant. No positive and or substantive orders had been sought against the 3rd to 10th interested parties either in their official or personal capacities. In the circumstances, whether the 3rd – 10th interested parties had been wrongly joined into those proceedings was an issue that should also be determined if, on the basis of the prayers sought in the petition, their being joining as interested parties offended any of the provisions of the Constitution, or statute. There was a need to hear the petition and determine it on merit.

The motion application and the preliminary objection were dismissed. No order as to costs.