Quarantining members of the public without an order of a magistrate and forcing them to pay for their upkeep is contrary to section 27 of the Public Health Act on the Isolation of persons who have been exposed to infection

Okiya Omtatah Okoiti & 2 others v Cabinet Secretary, Ministry of Health & 2 others; Kenya National Commission on Human Rights (Interested Party) [2020] eKLR

Petition 140, 28 & 128 of 2020(Consolidated)

High Court at Nairobi

JA Makau, J

December 3, 2020

Constitutional Law - fundamental rights and freedoms – right to health – where the Cabinet Secretary for the Ministry of Health issued a directive that required persons suspected to have contracted covid-19 to go into compulsory quarantine for public health protection to pay for their upkeep – whether quarantining members of the public at various facilities without an order of a magistrate and forcing them to pay for their upkeep declared was unconstitutional - Constitution of Kenya, 2010, articles 2(6) and 43; Public Health Act, Cap 242, section 27; ; Health Act (No. 21 of 2017), sections 5(1) and (2); International Covenant on Economic, Social and Cultural Rights, article 12(1).

Civil Practice and Procedure – pleadings – petitions – documents accompanying petitions – supporting affidavits vis a vis verifying affidavits -requirement that a petition be filed together with supporting affidavit - what was the effect of failure to file a petition together with a supporting affidavit where a party wished to rely on a document in the petition - whether verifying affidavits accompanying petitions had evidentiary value – Constitution of Kenya, 2010, article 1592)(d); Civil Procedure Rules, 2010, Order 4 rule 1.

Constitutional Law – fundamental rights and freedoms – limitation of fundamental rights and freedoms – limitation to the right to access of health care services – requirement that a limitation to a right in the Bill of Rights had to be justifiable and reasonable - whether limitation of use of Government quarantine facilities to more deserving cases as opposed to persons breaching measures to contain the spread of the covid-19 pandemic was reasonable – Constitution of Kenya, 2010, articles 2(6), 24, 43 and Sixth Schedule section 7; Public Health Act, Cap 242, section 27; Health Act (No. 21 of 2017), sections 5(1) and (2).

Civil Practice and Procedure – pleadings – pleadings in a claim for special damages - what was the effect of failure to plead a claim for specific damages in a claim for refund.

Words and Phrases - sub-judice – definition of sib-judice - before the court or judge for determination - Black’s Law Dictionary 10^th Edition.

Brief facts

The petitioners aggrieved that contrary to the express provisions of section 27 of the Public Health Act (PHA) the Cabinet Secretary, Ministry of Health (CS) forced persons required to go into compulsory quarantine for public health protection to pay for their upkeep yet the law required the State to foot their bills, filed the instant consolidated petitions. The 1^st petitioner also contended that the CS issued Legal notice No. 46 of April 3, 2020, and Legal Notices Nos. 50, 51, 52, 53, and 54 of April 6, 2020 without both public participation and parliamentary approval being in violation of the Constitution of Kenya, 2010 (Constitution) and the Statutory Instruments Act, 2013.

The 3^rd petitioner contended that the directive given by the CS had declined to acknowledge the sanctity of life and denying the poor Kenyans the right to medical services. Furthermore, he contended that quarantine was not given the sensitive attention it deserved but instead had been made punitive even against the poor. As such, he averred that the directive was presumptive, unenforceable as it undermined express provisions of the Constitution and thus had to be vacated.

The petitioners sought among others orders that; the decision to quarantine members of the public at various facilities without an order of a magistrate and forcing them to pay for their upkeep was contrary to section 27 of the PHA; and the Government should refund in full the money each and every person who it quarantined was forced to pay for their upkeep.

Issues

1. Whether quarantining members of the public at various facilities without an order of a magistrate and forcing them to pay for their upkeep was unconstitutional.
2. What was the effect of failure to file a petition together with a supporting affidavit where a party wished to rely on a document in the petition?
3. Whether verifying affidavits accompanying petitions had evidentiary value.
4. Whether limitation of use of Government quarantine facilities to more deserving cases as opposed to persons breaching measures to contain the spread of the covid-19 pandemic was reasonable.
5. What was the effect of failure to plead a claim for specific damages in a claim for refund?

Relevant provisions of the law

Constitution of Kenya, 2010

Article 94

(5) No person or body, other than Parliament, has the power to make provision having the force of law in Kenya except under authority conferred by this Constitution or by legislation.

Article 159

 (2) In exercising judicial authority, the courts and tribunals shall be guided by the following principles—

 (d) justice shall be administered without undue regard to procedural technicalities;

Civil Procedure Act

Section 6

No Court shall proceed with the trial of any suit or proceeding on in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties or between parties under whom they or any of them claim litigating under the same title, where such or proceedings is pending in the same or any other Court having jurisdiction in Kenya to grant the relief claimed.

Public Health Act

Section 27

Where, in the opinion of the medical officer of health, any person has recently been exposed to the infection, and may be in the incubation stage, of any notifiable infectious disease and is not accommodated in such manner as adequately to guard against the spread of the disease, such person may, on a certificate signed by the medical officer of health, be removed, by order of a Magistrate and at the cost of the local authority of the district where such person is found, to a place of isolation and there detained until, in the opinion of the medical officer of health, he is free from infection or able to be discharged without danger to the public health, or until the Magistrate cancels the order.

Held

1. A party filing a petition was obligated to file the petition together with an affidavit if he wished to rely on any document, which should be annexed to the supporting affidavit, which document should be served upon the respondent with the petition. Therefore, a petition without supporting affidavit with annextures to the affidavit contained mere allegations without affidavit evidence intended to accompany the petition to support allegations in the petition and that meant the petition was incomplete and incompetent.
2. The verifying affidavit annexed to the 2^nd petitioners’ petition did not meet the mandatory requirements as set out in the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules), as there was no single annexure attached to the verifying affidavit. The documents filed by the 3^rd respondent were not accompanied by any supporting affidavit and as such they did not qualify to be annexures nor were they commissioned by the commissioner of oaths as exhibits to any affidavits.
3. Under Order 4 rule 1 of the Civil Procedure Rules where verifying affidavit were intended to accompany plaints in verification of the correctness of the averments contained in the plaint were required to be properly presented before the court. The verifying affidavit filed by the 2^nd petitioner was misplaced and of no legal effect whatsoever. The verifying affidavit and documents attached to the 3^rd petitioner’s petition had no evidentiary value on the petitions. The requirement that a petition be accompanied by a supporting affidavit was not a procedural technicality as affidavit contained the evidence a party wished to rely on in support of his case.
4. Article 159(2)(d) of the Constitution could not come to the 2^nd and 3^rd petitioners’ aid as the requirement that a petition be accompanied by supporting affidavit was not a procedural technicality as affidavit contained the evidence, a party wished to rely on in support of the case. It was an important part of pleading that guided the parties to a matter. In absence of such vital evidence, thus affidavit evidence, the 2^nd and 3^rd petitioner’s petitions fatally defective for lack of affidavit evidence in their support.
5. The principle of sub judice was defined in section 6 of the Civil Procedure Act. Considering the pleadings in Petition No. 132 of 2020, Law Society of Kenya v CS of Health and others and Petition No. 140 of 2020 (the first petition) , the constitutionality or otherwise of Legal Notices Nos. 50 to 54 were an issue in Petition No. 132 of 2020. The court pronounced itself when it delved its judgment in Petition No. 132 of 2020 on June 25, 2020, on the same issues. To the extent that the petitions sought to challenge the same issues as regards constitutionality or otherwise of Public Health (COVID-19) Restriction of Movement of Person and Related Measures) Rules, 2020, were res judicata.
6.  It would indeed be a waste of judicial time to rehash the arguments in the instant petition where the High Court had already considered and pronounced itself on the very same issues most eloquently as it did in Petition No. 132 of 2020. Under the principle of res judicata, the court was barred from entertaining a matter by the same parties or those acting on their behalf, over the same issue or subject matter where the issue had been conclusively determined by a court of competent jurisdiction. Section 7 of the Civil Procedure Act was clear on res judicata and acted as a bar to such future proceedings as a way of bringing litigation to an end.
7. Article 94(5) of the Constitution provided that the CS could make provisions having the force of law under authority conferred by legislation as he did. The provisions of the Statutory Instruments Act that allowed for implementation of statutory instruments were merely an expression of the legal principle of presumption of legality of legal instruments and Government action.
8. The issues raised in the first petition were sub judice, pending determination in Petition 132 of 2020. The petition had already been determined. The instant consolidated petitions were res judicata as regards all similar issues raised and determined in Petition No. 132 of 2020.
9. Parties were always bound by their pleadings and as the issue of as to whether a declaration of a state of emergency was necessary and a condition precedent to the enactment and enforcement of the emergency policies and legislation did not form part of the pleadings. That issue was misplaced and the court declined the invite to deal with it.
10. The 1^st respondent acted properly and put in place policy measures as envisaged under the provisions of both the Health Act and the Public Health Act. The use of quarantine was internationally accepted as a means of containing pandemics like covid-19. The 2^nd respondent further made provisions for protocols that specified how quarantine sites were to be administered.
11. The decision to limit the use of Government quarantine facilities which were limited to more deserving cases as opposed to persons flagrantly breaching the measures put in place to contain the spread of pandemic was reasonable; widely accepted and recommended by the World Health Organization (WHO) in containment of the spread of Covid-19.
12. The right to Health found expression in regional and international law which formed part of the Kenyan law by dint of article 2(6) of the Constitution which decreed that any treaty or convention ratified by Kenya formed part of the law of Kenya under the Constitution. The Fourth Schedule to the Constitution in Part 2 thereof provided in section 2 that county health services, including in particular county health facilities and pharmacies; and promotion of primary health care and functions of country governments.
13. The Public Health Act (PHA) preceded the Constitution, the provision of section 7 of the Sixth Schedule to the Constitution would apply which provision provided that all law in force immediately before the effective date continued in force and would be construed with alternations, adaptations, qualifications and exceptions necessary to bring it into conformity with the Constitution, therefore local government could be construed as county government.
14.  The issue related to section 27 of the PHA was not one of the issues in previous Petitions No. 132 of 2020 and Petition No. 120 of 2020. Under section 27, a person could be isolated based on opinion of a medical officer accompanied by an order of a magistrate and that the costs associated with the isolation were to be borne by the local authority of the district (state) where the isolated person was found.
15.  Considering section 27 of the PHA; section 5(1) and (2) of Health Act, 2017; article 2(6) of the Constitution; and article 12(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR), the action of quarantining persons without an order from a magistrate and at their own cost was a violation of section 27 of the PHA, article 43(1)(a) of the Constitution and the relevant regional and international instruments. The local authority where the isolated person was found had the solemn constitutional and statutory duty to provide health care services to the people and that included but was not limited to shouldering the quarantine costs.
16.  The 1^st petitioner’s claim for refund was one that had to be specifically pleaded and strictly proved being a claim for special damages. The 1^st petitioner had neither pleaded the claim nor particularized the same nor specifically proved the same; such claim had to fail. Further, no such parties had been enjoined in the pleadings as petitioners or interested parties. No evidence had been produced in support of the claim. The claim could not therefore stand. In addition, such a claim was solely against county governments, who had not been made a party to the proceedings. It would be against the principle of natural justice and the Constitution to condemn county governments to refund such sums when they had not been enjoined and without affording them an opportunity to be heard on their defence.
17. It would be contrary to provisions of the Civil Procedure Act and the rules of natural justice for the court to embark on determination on a non-pleaded subject matter and to what parties had not left to court to determine.

2^nd and 3^rd petitioners’ petitions dismissed; each party to bear own costs.

Orders

1. The consolidated petitions were res judicata by virtue of Petition Nos 132 of 2020 and 120 of 2020 in most of the issues raised thereto save the issue (d) on whether quarantine for members of public at various facilities without an order of a magistrate and forcing them to pay for their upkeep was contrary to section 27 of the PHA and whether it contravened the constitutional imperative of the rule of law under article 10 and 47 of the Constitution and (e) on whether the Government should refund the money each person who was quarantined and forced to pay for their upkeep.
2. A declaration was issued that the decision to quarantine members of the public at various facilities without an order of magistrate and forcing them to pay for their upkeep was contrary to section 27 of the PHA and forcing pay for their upkeep contravened section 27 of the Public Health Act and was thereby  unconstitutional.
3. A declaration was issued that the Government should refund in full the money each and every person who it quarantined and was forced to pay for their upkeep was not particularized, specifically pleaded and strictly proved and the county governments who were required to make payments having not been joined as parties, the claim for refund was not proved and was declined.
4. Prayers under numbers (c), (d), (e), (f), (g), and (h) were res judicata by virtue of courts’ decisions in Petitions No. 120 of 2020 and Petition No. 132 of 2020 and were accordingly dismissed.

The Division of Revenue Act, 2016 is unconstitutional.

Council of County Governors v Attorney General & 4 others; Controller of Budget (Interested Party) [2020] eKLR

Petition 252 of 2016

High Court at Nairobi

JA Makau, J

December 3, 2020

Reported by Beryl Ikamari

Constitutional Law - devolution - equitable sharing of national revenue - conditional grants - where the National Government was allocated funds for maternity healthcare, leasing of medical equipment and level 5 hospitals, as a conditional grant - whether in light of the provisions of the Fourth Schedule to the Constitution and other legal provisions, the allocation was constitutional - Constitution of Kenya 2010, article 202(2).

Constitutional Law - public finance - conditional grants - accounting officer responsible for expenditure pertaining to conditional grants - whether a National Government accounting officer could directly spend money from  conditional grants without the existence of an intergovernmental agreement allowing for transfer of functions between the County Government and the National Government - Constitution of Kenya 2010, articles 202(2), 187 and  189.

Constitutional Law - interpretation of the provisions of the Constitution - meaning of "national interest" as a criterion for the sharing of national revenue between different levels of Government - Constitution of Kenya 2010, article 203(1)(a).

Brief facts

Parliament enacted the Division of Revenue Allocation Act. The statute made allocations which included maternity healthcare, leasing of medical equipment and level 5 hospitals, to the National Government and they were categorized as a conditional grant. The allocations were made to the National Government even though they related to functions apportioned to the county governments under the Constitution. The petitioner was of the view that the National Government was slowly taking over County Government functions.

The petition was stayed after the respondents raised a preliminary objection premised on the exhaustion of alternative remedies. The matter was referred for mediation under article 189(3) of the Constitution and the Intergovernmental Relations Act. The mediation was undertaken before the Intergovernmental Relations Technical Committee (IGRTC.) After that mediation process, some issues remained unresolved and they were referred to the Intergovernmental Budget and Economics Council (IBEC) for a second mediation.

The second mediation dealt with issues relating to the meaning of national interest, allocation of functions under the Constitution to different levels of government and re-allocation subject to an agreement under article 187 of the Constitution between different levels of government. In the second mediation, the conclusion that under article 202(2) of the Constitution County Governments could be given additional allocations from the National Government’s share of revenue, either conditionally or unconditionally, was made. The petitioner sought further interpretation from the High Court for the issues raised.

Issues

1. Whether the allocation of conditional grants for maternity healthcare, leasing of medical equipment and level 5 hospitals, under the Division of Revenue Act 2016 to the National Government, was constitutional.
2. Whether an accounting officer of the National Government could spend money from conditional grants directly in the counties to undertake devolved functions without an intergovernmental agreement under article 187 of the Constitution.
3. What was the meaning of the term "national interest" as used in article 203(1)(a) of the Constitution in the context of division of national revenue between different levels of Government.

Held

1. Article 202(2) of the Constitution provided that County Governments could be given additional allocations from the National Government's share of revenue either conditionally or unconditionally. Further article 203 set out the criteria for determining the equitable shares of revenue provided for in article 202 of the Constitution. The criteria included national interest, making provision for public debt and other national obligations, the needs of the National Government and the fiscal capacity, efficiency and developmental needs of County Governments including economic disparities between counties, affirmative action, the need for economic optimization of each county, the desirability of stable and predictable allocation of revenue and the need for flexibility in responding to emergencies.
2. The Commission for Revenue Allocation considered any Bill that included provisions on revenue sharing and made recommendations which would be table before the National Assembly and Senate under article 205(1) of the Constitution. Under article 203(2) of the Constitution, those recommendations would be considered by the National Assembly before voting on the Bill. Article 218 of the Constitution provided for the manner in which the Senate and the National Assembly should process such Bills.
3. The share revenue to the counties could vary so long as the amount allocated to the County was not less than (15%) of fifteen per cent of all revenue collected by the National Government.
4. Under article 230(1) of the Constitution, one of the criteria for revenue sharing was to ensure that County Governments were able to perform the functions allocated to them under the Constitution. The provision was intended to promote the values of development governance as set out in article 175(b) of the Constitution. Article 175(b) of the Constitution provided that County Governments had to have a reliable source of revenue to enable them to govern and deliver service efficiently.
5. For the financial year 2016/2017 County Governments received more than the Constitutionally mandated minimum of 15% of share of national revenue and Parliament did not violate the Constitution. It was not demonstrated that there was a constitutional violation which warranted the invocation of the High Court's jurisdiction under article 165 of the Constitution.
6. The explanatory memorandum to the Division of Revenue Bill, 2016, explained the manner in which the revenue raised nationally was divided between the National and the County Governments. It was clear that the conditional allocations were drawn from the National Government’s share of revenue.
7. The Commission for Revenue Allocation considered the fact that at the time of making conditional allocations, the National Government had not fully devolved some of the functions assigned to the counties in the Fourth Schedule to the Constitution. Due regard was paid to the functions assigned to each level of Government to ensure that there was no mismatch between resources and delivery on responsibilities assigned to the National and County Governments.
8. The petition did not challenge the constitutionality of the Public Finance Management (National Government) Regulations, 2015 relied upon by the 5^th Respondent as regarded the function of monitoring and evaluating conditional allocations made to County Governments which, ultimately lay with the National Government.
9. Conditional grants were money transfers from one level of Government to another, either through competitive project grants or the more general block grants which were essentially an annual sum of money awarded by the National Government to a County Government to help fund a specific project. The National Government placed conditions for the grant on the recipient Government. The conditions could be financial or substantial in nature. The conditions could vary from county to county.
10. Article 202 of the Constitution provided for two forms of allocations. Article 202(1) provided for the Division of Revenue Act in the sense that it provided for the equitable sharing of the revenue raised nationally between the national level of Government and the county level of Government as provided for under article 218(1)(a) of the Constitution. The other allocations provided for under article 202 of the Constitution were conditional or non-conditional grants, which were allocated from the National Government's share of revenue. There ought to be a framework stating the purpose, the goal and the mechanism for the issuance of the conditional grants.
11. Conditional grants to counties should come from the National Government’s share of revenue whereas funds for devolved functions should be allocated directly from the nationally raised revenue and not through the National Government’s share.
12. Conditional grants in the Division of Revenue Act 2016 were not done in accordance with the Constitution and the law. The Division of Revenue Act, 2016 contravened the provisions of article 202(2) of the Constitution by defining that the conditional allocation to counties had to be from the revenue raised nationally instead of the National Government equitable share. The Division of Revenue Act 2016 was therefore not made in accordance with article 202(2) of the Constitution and was therefore unconstitutional.
13. Issues of dual accountability arose where money for devolved functions was allocated to the County Governments through the National Government. It was necessary to determine who should account for the money and in particular, whether it was the National Government's accounting officer or the County Government's accounting officer.
14. There was no agreement on transfer of functions between different levels of Government when the National Government got an allocation of money for devolved functions. It was apparent that the National Government took over devolved functions on free maternal health care, leasing of medical equipment amongst others. It was clear that the provisions of articles 187 and 189 of the Constitution, on the need for an agreement between the different levels of Government, were overlooked.
15. It was wrong to allow accounting officers of the National Government to spend money for conditional grants meant for counties. The National Government could only interfere in the activities of County Governments pursuant to the provision of article 190(3) of the Constitution and section 21 of the County Governments Act.
16. When an accounting officer of the National Government spent money for conditional grants directly in the counties in order to undertake devolved functions without an intergovernmental agreement under article 187 or 189 of the Constitution, that officer was in breach of the Constitution and the law.
17. The “national interest” defined in article 203 (1) (a) of the Constitution was not a legal question but it was a political question for the Executive and the Legislature to determine during the extensive yearlong budget process. "National interest” was a key backbone in influencing the division of revenue between the two levels of Government in line with article 203 of the Constitution. However, in the past the term had been misused and deemed to be synonymous with the interest of National Government.
18. The Import of article 203 of the Constitution was that the equitable share allocated to the county level of government could be increased or reduced based on “national interest”. For instance, if the national interest was the enhancement of health services, more funds would be allocated to the county level of Government to meet the goals and purpose of the national interest served by health. In another instance, where Kenya had been attacked by an external aggressor, the national interest would be defence spending. That meant that revenue allocated to the national level of Government could increase based upon serving the national interest that was defence of Kenya’s borders.
19. “National Interest” could not be the basis for setting aside revenue from the Consolidated Fund but was a criteria for the allocation of the equitable share under article 202(1) and article 218(1)(a) of the Constitution. The Division of Revenue Act 2016 allocated funds for national interest which were deducted from the equitable share before the money was shared equitably between the levels of governments. For instance, funds for NYS and security were deemed to be national interest and allocated to the National Government way before the revenue raised nationally was shared between the National Government and counties. The national interest was just a factor to be considered before funds were equitably allocated to each level of government. It did not constitute a separate faction that had to be allocated money.
20. “National Interest” transcended both levels of Government as it benefited the entire country. Where a function had been earmarked as one being of national interest an allocation for the same ought to be allocated to the Government level that had been assigned the function under the Fourth Schedule to the Constitution. Petition allowed.

Orders: -

1. A declaration that the National Government could not allocate itself funds for and undertake devolved functions, without first executing inter-government agreements required by article 187 of the Constitution.
2. A declaration  that in accordance with article 202 (2) of the Constitution all funds christened in the Division of Revenue Act as conditional or unconditional grants should be netted from the National Government’s share of revenue and not from the overall revenues raised nationally.
3. A declaration that in accordance with article 202(2) of the Constitution all funds christened in the Division of Revenue Act as conditional or unconditional grants should be disbursed to the Counties through the County Revenue Fund.
4. A declaration that ‘national interest’ as stated in article 203(1)(a) of the Constitution did not necessarily connote functions of the National Government as provided in the Fourth Schedule to the Constitution.
5. A declaration  that funds christened as ‘national interest’ in the Division of Revenue Act 2016 or any other Division of Revenue Act enacted to implement the provisions of article 202 and 203 of the Constitution could not be apportioned on devolved functions without the same being channelled to the counties as conditional or unconditional grants.
6. A declaration that in its entirety, the Division of Revenue Act, 2016 was inconsistent with the provisions of articles 6(2), 10(2)(a), 174(c), (d) and (h), 202(2), 174(g), 175(b), 186, 186(2), 187(1), 189, 189(1) (c), 203(1)(d), and 217 of the Constitution.
7. An order directing the respondents to take necessary steps to amend the Division of Revenue Act, 2016 to conform to the provisions of articles 202(2) and 203(1) of the Constitution.
8. Each party was to bear its own costs.

The presidential “state of the nation address” directing the indefinite closure of schools declared unconstitutional for causing psychological harm to school-enrolled children and for being against the best interests of the child.

Joseph Enock Aura v Cabinet Secretary, Ministry of Education, Science & Technology & 3 others; Teachers Service Commission & 6 others (Interested Parties) [2020] eKLR

Constitutional Petition No. 2189 of 2020

High Court at Nairobi

JA Makau, J

November 19, 2020

Reported by Beryl Ikamari & George Kariuki

Constitutional Law - fundamental rights and freedoms - right to education - whether closure of schools for purposes of combating the Covid - 19 pandemic was constitutional and whether it exposed children to psychological harm - articles 10(2)(a), 10(2)(b), 22, 23, 53, 131 (2) (e),  and 135; Children Act, No 8 of 2001,  sections 4 32(2) and 22;  Basic Education Act, No 14 of 2013, sections 4(l), 42, 55 and 70; Public Health Act, (cap 242) section 32.

Constitutional Law - constitutionality of subsidiary legislation - enactment relating to closure of schools in order to combat the Covid - 19 pandemic - role of the Cabinet Secretary for Health and the role of the Cabinet Secretary for Education, Science and Technology - whether the enactment met constitutional and statutory thresholds including provisions on the best interests of the child as a paramount consideration - Constitution of Kenya 2010, article 53(2) and Children Act, No 8 of 2001,  sectiosn 4 32(2) and 22;  Basic Education Act, No 14 of 2013, sections 4(l), 42, 55 and 70; Public Health Act, (cap 242) section 32.

Constitutional Law - office of the Attorney General - the Attorney General as an advisor to the Executive - whether the Attorney General failed to advise the Executive on how to comply with the law when undertaking a closure of schools due to the Covid - 19 pandemic.

Constitutional Law – constitutional litigation – drafting of petitions - precision in drafting petitions - whether a petition had been drafted in a manner that sufficiently and precisely set out a claim so as to enable parties to respond to it and the court to make a determination.

Constitutional Law - national values and principles of governance - public participation - whether the process of the enactment of the community based learning program failed to meet public participation requirements and was therefore unconstitutional - Constitution of Kenya 2010, article 10.

Brief facts

The petition was brought in response to the “State of the Nation Address” by the President on March 15, 2020 that directed the indefinite closure of schools on the basis of the novel Covid-19 pandemic among other measures. The petitioner brought the petition on behalf of his children: JLA (aged 21 years), JMA (aged 18), and DTA (aged 16 years) for compensation for the psychological suffering inflicted on them by the Government of Kenya’s closure of in-person learning since March 16, 2020, in breach of their rights against such freedom from psychological torture and right to human dignity. The petition was also brought on behalf of millions of such other school going children.

The petitioner also contended that the Executive through the Ministry of Education and the Ministry of Health failed to provide the basis for the unilateral closure of schools without consultation with National and County Education Boards even after being probed by the petitioner.  Those administrative actions were contended to be ultra vires the best interests of the child as constitutionally founded.

Lastly, the petition opposed the community based learning enacted by the Ministry of Education as a remedial measure for arresting the effects of Covid-19 on Education. The petitioners contended that the policy had no underpinning under the law.

Issues

1. Whether the closure of schools following a directive issued by the President of the Republic of Kenya in a “State of the National Address” as part of the measures put in place to combat the Covid – 19 pandemic was unconstitutional?
2. Whether the closure of schools as part of the measures put in place to combat the Covid – 19 pandemic caused psychological harm to school-enrolled children?
3. What was the role of the Cabinet Secretary for Health in the enactments of legislative measures about Covid-19 pandemic?
4. Whether enactments related to the Covid- 19 pandemic met legal and constitutional thresholds with respect to the right to education of school enrolled-children?
5. Whether the Cabinet Secretary for Education, Science and Technology discharged its mandate under article 53(2) of the Constitution as read together with section 32(2) of the Children’s Act, in the face of the open-ended closure of schools over the Covid – 19 Pandemic and whether  it was in ‘the best interest of the child’ to re-open schools?
6. Whether the Attorney-General was liable for his failure to advice the Executive to adhere to the relevant statutory requirements when closing schools due to the Covid – 19 Pandemic?
7. Whether the amended Petition was sufficiently and precisely pleaded or it was based on conjecture?
8. Whether the community based learning program as enacted was legal?

Held:

1. In exercise of executive authority, the President was bound to promote service to the people for their well-being and benefit. In doing so, the President was required to consult with the County and National Executive Boards.
2. According to rules of practice, petitioners approaching the constitutional court were required to disclose in their petition a brief statement of facts with reference to exhibits, attached to the petition, issues arising for determination and a concise statement of argument on each issue incorporating the relevant authorities referred to.
3. The petitioner failed to specifically plead the breach allegedly committed in the President’s address and facts about that were not provided in any part of the petition. In that regard, the court had inherent jurisdiction to prevent an abuse of its process and it therefore had a duty to intervene and stop such proceedings to prevent abuse of the court process.
4. In issuance of the “State of the Nation Address” pursuant to article 10 of the Constitution, the President was entitled to address the nation on any issue of national concern, as it arose anywhere. The closure of schools following a directive issued by the President of Republic of Kenya in a “State of the Nation Address” was therefore constitutional and did not violate the Constitution of Kenya in any way.
5. Injuries suffered as a result of discrimination, harassment or inhuman and degrading treatments were no less real because they did not possess tangible physical or financial consequences. The difficulty in assessing the amount of compensation for that type of injury ought not to deter the court from recognizing its potential.
6.  There was genuine prospect that the effects of the indefinite closure of schools would permanently alter the lives of children caught in the apex of the Covid-19 pandemic.
7.  Evidence was adequately adduced to the effect that children who faced acute deprivation in nutrition, protection or stimulation, or periods of prolonged exposure to toxic stress, during the critical window of early childhood development were likely to develop lifelong challenges as their neurological development would be impaired.
8.  Children who dropped out of school would not only face a higher risk of child marriage, child labour, and teenage pregnancies, they would also see their lifetime earning potential precipitously fall. Children who experienced family breakdowns during the period of heightened stress risk would lose the sense of support and security on which children’s wellbeing depended.
9.  The petitioner pleaded, particularized, and proved that the closure of schools would cause psychological harm to school-enrolled children.
10. Constitutionally, information required by any person ought to have at first been requested for the enforcement or protection of another right and been denied before a violation of the right to information could be alleged. The petitioner failed to prove the allegation against provision of information to the required standard of proof.
11.  The benefit of the petitioner’s school going children and other school children attending school in-person out-weighed the risks of Covid – 19 as urged by the respondent as long as the respondents ensured that Covid – 19 measures and safety protocols were put in place and fully complied with in each and every school by both the learners and the teachers.
12. The best interest of any child was to be in school in-person as there was more control, guidance and provision of health safe measures in the school than leaving the children roaming in the villages or shanties or towns without observing any Covid-19 Health Protocols.
13.  It was important for school-gong children to have the social interaction and academic development that could be reaped only from in-person learning. Therefore, the school going children would reasonably be safe in school given that health conditions that would place children at health risk were given priority.
14.  The acts of default alleged against the Attorney General were not particularized or specifically pleaded and there was no demonstration from the petitioner that any such impugned acts were done. There was no demonstration on part of the petitioner that the impugned acts were done in bad faith for executing the functions, power’s or duties of the commission so as to render the Attorney General liable to any action, claim or demand whatsoever. There was therefore no basis in the petitioners’ allegation that the Attorney General failed to advise the Executive.
15.  The petition was drawn in accordance with guidelines statutorily set out for drawing constitutional petitions. The petition was therefore not an abuse of the court process as the relevant articles were clearly stated as were the particulars.
16.  Evidence was sufficiently adduced to the effect that the interest of justice as regards the welfare of children would be better served when the children were at school than when out of school without any control as regard person-to-person contact. The respondents could have given directions when most of the children were at school.
17.  The Executive stepped beyond what the law and the Constitution permitted. They could therefore not seek refuge in illegality and hide under the twin doctrines of parliamentary privilege and separation of powers to escape judicial scrutiny.
18.  The respondents did not rebut the petitioner’s contention that the community Based Learning program was unilaterally commenced, that there were no consultations with the stakeholders and that they were not on relevant provisions of the Basic Education Act.
19. There was a sixteen-member Committee appointed by the Minster but there was no evidence that the committee made any report on Community Based Learning Program and even if they did so, it was not supported by any provisions of the Basic Education Act. The project was ultra vires the Act and was therefore null and void for all purposes and intentions.

Orders:-

1. A declaratory Order was issued declaring that each of the petitioner’s school-going children subject of this petition, JLA (aged 21 years), JMA (aged 18), and DTA (aged 16 years) and all equally implicated Kenyan school-going children and learner’s fundamental rights and freedoms in relation to their education as enumerated in the petition were contravened and grossly violated by the respondents as enumerated in the petition.
2. An order was issued declaring that pursuant to article 10 (2) (a) and 10 (2) (b) of the Constitution of Kenya, the 1^st respondent was bound by the principles of patriotism, public participation, transparency, fairness, human rights, and good governance in the execution of the terms of his portfolio and duties appurtenant to the education sector in Kenya as spelt out in the applicable statutory regimes, and any recommendations by any person or entity to the 1^st respondent on the closure and reopening program of schools in Kenya at any time conducted without involving the National Education Board, the respective County Education Boards, the County Parent’s Associations from school through a delegate system as mandated in the Third Schedule to the Basic Education Act was null and void.
3. A declaratory order was issued declaring that, in prolonging the open-ended closure of schools and learning institutions in Kenya from March 16, 2020 to date without any consultations with the parents, guardian of school-enrolled children, affected learners in diverse learning institutions, in conjunct with the National Education Board and respective County Education Boards, the 1^st respondent’s (Cabinet Secretary, in charge of Education’s) action was ultra vires Section 4 (I) and Section 70 of the Basic Education Act.
4. A declaratory order issued declaring that the “community-based” learning project announced by the 1^st respondent on July 30, 2020 in conjunct with the 1^st Interested Party, (Teachers Service Commission) was null and void for want of public participation and consultation with the National Education Board, respective County boards across Kenya, and the petitioner via his cited children’s school, and like parents of school-enrolled children across Kenya.
5. An order of injunction was  issued to restrain the 1^st respondent by himself, his assistants and partners, agents, servants, or otherwise howsoever, together with the 1^st interested party, Teacher Service Commission from undertaking, or further executing the “community-based learning” project in schools and learning institutions across Kenya as announced by the 1^st respondent on July 30, 2020.
6. An order of mandamus was issued to compel the 1^st respondent to immediately direct the re-opening of in-person learning institutions and schools in Kenya, observing the health and safety guidelines and considering a safe environment, commencing forthwith and not later than 60 days of the order for learning institutions and schools across the Republic of Kenya so as to have all the learners in learning institutions and schools enjoying in-person learning.
7.  An order of certiorari by way of judicial review was issued to bring into the court for purposes of quashing, the 1^st respondent’s decision made on July 30, 2020 purporting to declare and execute “community-based learning” program in schools, learning institutions, churches and places of worship across Kenya, for lacking of public participation and being ultra vires Section 42 (1) of the Basic Education Act, Act No. 14 of 2013.
8. Each party was directed to bear their own costs in the petition.