Covid-19: Parent sues State over Uhuru order to close schools

A Nairobi parent has sued the government for the continued closure of schools as part of efforts to contain the spread of the coronavirus.

President Uhuru Kenyatta ordered schools shut earlier this year, days after the country confirmed its first Covid-19 case on March 13.

The institutions were to be reopened in September but with increasing cases of the disease and insufficient measures to protect students, Education Cabinet Secretary George Magoha said learning will remain suspended until January 2021.

This, however, is subject to prevailing circumstances. By August 24, Kenya had declared 32,557 cases of the virus, including 554 deaths and 18,895 recoveries.

Joseph Enock Aura, the parent behind the suit, describes the decision as draconian and a violation of learners’ rights as well as provisions of the Basic Education Act and the Constitution.

Procedure issue

Mr Aura wants the court to determine whether the President can order the closure of learning institutions via a state of the nation address, without publishing the directive in the Kenya Gazette or tabling it before the National Assembly for debate and approval.

“The petitioner's children's schooling (and that of millions of other children and learners) was truncated on the basis of this ‘’address to the nation’, taken up and enforced by the Ministry of Education, to date,” he notes in his petition, which he asks the court to certify the matter as urgent.

He further says the open-ended closure of schools from March 16 is not a solution to a “little known public health issue classified as Covid-19”, whose mortality rate is not certifiable to date.

“The prolonged closure of schools due to unfounded reasons [has resulted in the] severity of pain and suffering by students, in tandem with the provisions of Article 1 of the Convention against Torture,” reads the petition.

He adds that the right to education for learners across Kenya cannot be held at ransom.

Quarantine centres

Mr Aura has also urged the court to declare that the conversion of 431 learning institutions into Covid-19 quarantine facilities was in violation of the Public Health Act.

The petitioner is also seeking orders compelling the Ministry of Education to reopen in-person learning institutions and schools from September 1, this being the start date of the next academic term for schools across Kenya.

He has also raised questions on why the findings of a 10-member task force, appointed on May 12 and chaired by Dr Sara Ruto were never made public.

The petitioner further questions the projections of infections that the Ministry of Health has been communicating to Kenyans daily, saying they shifted in an alarming manner.

“As it is, the projections were based on non-African, non-Kenyan theorems, and the Ministry of Education asserted that no in-person learning institution or school facility would be open in Kenya as long as Covid-19 infections continued rising,” reads the petition.

“All the projected "mass deaths" of Kenyans in consequence of alleged infections have not materialised and in hindsight, the projected infections and deaths were all based on wrong premises, theorems, and fantastic assumptions.”

Financial matters

Mr Aura wants the court to direct the government to compensate private primary and secondary schools in Kenya for losses incurred due to the closure.

Unlike the air transport sector which was re-opened to mitigate the losses, he  notes, none of the schools whose losses run into billions of shillings have been reopened to mitigate financial losses.

While re-opening domestic and international air travel on June 8, 2020, Transport Cabinet Secretary James Macharia said stakeholders informed the ministry that national carrier Kenya Airways was losing Sh9.3 billion monthly.

He also wants compensation for his three children aged 16, 18 and 21 for psychological suffering inflicted on account of the government’s closure of in-person learning.

“There is no higher risk that in-person school going children stand exposed to as opposed to the current variety of points of exposure of children to the coronavirus in open spaces unsupervised and without any form of protections as they would be in schools,” says Mr Aura.

The petitioner also wondered whether the Education ministry has any proven data on the occurrence, spread of and recovery from Covid-19 among different classes of school-enrolled populations across the country.

He says the data should be in reference to pre-school children in kindergartens, primary and secondary schools, tertiary institutions, post-graduate institutions and adult education centres.