FRIDAY April 5, 2019
By Joe Lihundi
Tranquility News Reporter, Arusha
The East African Court of Justice (EACJ) has declined to order the Kenya government to provide temporary school facilities to pupils whose schools were either closed or destroyed during the Mau Forest evictions.
The regional court has also turned down the applicant’s prayer to order the government of Kenya to pay for costs of the case.
“Reference No 17 of 2018 shall be fixed for hearing forthwith,” Justice Audace Ngiye ordered when reading the ruling of the court also signed by Principal Judge Monica Mugenyi , Deputy Principal Judge Fafustin Ntezilyayo and judges Fakihi Jundu and Charles Nyachae.
Following the inter-ethnic clashes that had affected pupils in the area, the government had taken measures and normalcy had returned in the schooling of the children in question, the regional court observed.
“This evidence was not controverted by the applicant. Given these circumstances, therefore, it is our considered view that the balance of convenience lies in favour of the respondent,” Judge Ngiye said.
In his prayers for interim orders against the Kenya government, the applicant, Professor Paul Chepkwony, wanted temporary school facilities be built to enable pupils whose schools were either closed or destroyed by the government’s agents for them to pursue their education and prepare for national examination, pending hearing of the main case.
The Governor of Kericho County claimed that the government had through its officers forcefully evicted civilian population from dwelling places and homes in most insensitive, cruel, horrifying, degrading, traumatising and inhuman manner without due process of the law and in violation of the principles of rule of law and good governance enshrined in the East African Community (EAC) Treaty.
He cited Article 53 of the 2010 Kenya Constitution, saying the government and parents were responsible for providing every child with education and that the government’s failure to guarantee the right to education violated the treaty and breached good governance.
Prof Chepkwony argued that monetary damages could not adequately compensate the pupils in absence of continued schooling and that the Kenya government would not suffer if it sent them back to school.
The applicant also asked the court to order the Kenya government to certify his interim application as urgent and be heard in ex parte (in absence of the respondent).
However, in September last year the regional court refused to hear the case in ex parte and ordered the application for interim orders be heard inter partes (in presence of the respondents) forthwith instead.
The application for interim orders was heard inter partes on November 7, 2018, when Prof Chepkwony was represented by Mr Kimutai Boesek and Ms Emmy Chelule, while the Kenya government was represented by Mr Oscar Eredi and Ms Fatuma Ali.
In its response, the Kenya government had through its witness, the director of Primary Education, Mr Habat Abdullah, said there were no evictions in Mau Forest, but the government had actually removed unlawful encroachments to prevent the forest from destruction.
Mr Abdullah explained that Basic Education Act, 2015, governing education in Kenya compelled the government to deal with registered schools only. Working with the affected schools, which were unregistered, would violate the Act and attract punishment stipulated under Section 78 of the same Act.
Mr Eredi, nonetheless, admitted that there were evictions, but they did not affect the pupils. Communal clashes not related to the evictions followed in parts of Nakuru and Narok counties which prompted the government to restore order.
“The respondent had fulfilled its responsibility in ensuring that the right to education of the affected pupils was respected as required by Article 53 of the Constitution of Kenya of 2010,” he said.
Prof Chepkwony is in his main case accusing the Kenya government’s officers and agents of forcefully evicting civilians from their homes adjacent to Mau Forest in a cruel, horrifying, degrading, traumatising and inhuman manner during the evictions.
The Kericho County Governor, who had privately filed the case at the regional court on behalf of minors evicted from Mau Forest between June and August 2018, says he had all the blessings from the victims’ parents and guardians.
He says the government of Kenya had through the Ministry of Environment and Forestry and its officers carried out evictions of thousands of decades-long residents in the farms adjacent to the Mau Forest Complex, causing serious humanitarian crises and human rights abuses that had adversely affected the government’s responsibility to provide education.
Prof Chepkwony said the government had failed to adhere to the principle of good governance and the rule of law as envisaged in the EAC Treaty by evicting the applicants from their homes without due notice and provisions of alternative living and learning centres for the pupils.
“The government of Kenya is practicing open and outright discrimination by punishing young children because of apparent poverty and landlessness of their parents or guardians,” he said, adding:
“Schools opened after August 2018 holiday, but the pupils, whose parents or guardians were evicted, cannot go back to school, as they have been displaced from their homes and some of the schools were destroyed by the government’s agents.”
He said pupils, who were candidates for the KCPE, had been denied ample facilities to prepare for the examinations in question, when their colleagues countrywide were busy preparing for the same.