BY MICHAEL BONAYA 

In Kenya on September 16^th 2021- parent and lawyer Esther Awour Adero Angawa filed a case in the high court to have the implementation of the newly launched Competence Based Curriculum be declared unconstitutional.

Havi and Company Advocates, a law firm ran by Nelson Havi, the 49^th President of the Law Society of Kenya (LSK), is representing the petitioner in the case.

The respondents in the case are the Ministry of Education Basic Education Department, Kenya Institute of Curriculum Development (KICD), Kenya National Examinations Council (KNEC), Teachers Service Commission (TSC), Kenya National Union of Teachers (KNUT), Education Minister Prof. George Magoha, and Interior Cabinet Secretary Fred Matiangi.

CBC (Competence Based Curriculum) Curriculum in Kenya was drafted by Kenya Institute of Curriculum Development (KICD) after being initiated by the Ministry of education in 2017. It replaced 8-4-4 system after it was approved by the Ministry of Education. The key focus of the system is to ensure children develop ability and skills to solve daily life challenges.

Nelson Havi argues, “The actions of the first to second respondents as set out in the petition are manifestly unconstitutional and unlawful, are prejudicial to the future of children in Kenya and ought to be halted pending the hearing and determination of the questions raised.”

The plea of the petitioner is to have the Competence Based Curriculum declared unconstitutional and stopped from being implemented and the education system be returned back to 8-4-4 system, which was implemented in 1985 by President Daniel Arap Moi’s regime. The petitioner also requests that Education Minister and Interior Affairs Minister Prof. George Magoha and Mr. Fred Matiangi (respectively) be declared unfit for office and ordered to resign.

The petitioner seeks changes in the system and structure of basic education in the country (from nursery to middle-level institutions) to the new CBC format from 8-4-4 to be declared unconstitutional according to the following articles of the constitution:

• 1(3)(a) - (3) Sovereign power under this Constitution is delegated to the following State organs, which shall perform their functions in accordance with this Constitution— (a) Parliament and the legislative assemblies in the county governments
• 2(1) - (1) This Constitution is the supreme law of the Republic and binds all persons and all State organs at both levels of government
• 3(1) - (1) Every person has an obligation to respect, uphold and defend this Constitution
• 10 - (1) The national values and principles of governance in this Article bind all State organs, State officers, public officers and all persons whenever any of them— (a) applies or interprets this Constitution; (b) enacts, applies or interprets any law; or (c) makes or implements public policy decisions. (2) The national values and principles of governance include— 16 Constitution of Kenya, 2010 (a) patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people; (b) human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalised; (c) good governance, integrity, transparency and accountability; and (d) sustainable development. 

• 21 (1, 2 and 3) - (1) It is a fundamental duty of the State and every State organ to observe, respect, protect, promote and fulfil the rights and fundamental freedoms in the Bill of Rights. (2) The State shall take legislative, policy and other measures, including the setting of standards, to achieve the progressive realisation of the rights guaranteed under Article 43. (3) All State organs and all public officers have the duty to address the needs of vulnerable groups within society, including women, older members of society, persons with disabilities, children, youth, members of minority or marginalised communities, and members of particular ethnic, religious or cultural communities. 

• 24 (1) - (1) A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including— (a) the nature of the right or fundamental freedom; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and (e) the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose. 

• 27 (1, 2, 4 and 5) - (1) Every person is equal before the law and has the right to equal protection and equal benefit of the law. (2) Equality includes the full and equal enjoyment of all rights and fundamental freedoms (4) The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth. (5) A person shall not discriminate directly or indirectly against another person on any of the grounds specified or contemplated in clause (4)
• 33 (1) - (1) Every person has the right to freedom of expression, which includes— (a) freedom to seek, receive or impart information or ideas; (b) freedom of artistic creativity; and (c) academic freedom and freedom of scientific research. (2) The right to freedom of expression does not extend to— (a) propaganda for war; (b) incitement to violence; (c) hate speech; or (d) advocacy of hatred that— (i) constitutes ethnic incitement, vilification of others or incitement to cause harm; or (ii) is based on any ground of discrimination specified or contemplated in Article 27 (4) 

• 43 (1) - (1) Every person has the right— (a) to the highest attainable standard of health, which includes the right to health care services, including reproductive health care; (b) to accessible and adequate housing, and to reasonable standards of sanitation; (c) to be free from hunger, and to have adequate food of acceptable quality; (d) to clean and safe water in adequate quantities; (e) to social security; and (f) to education. 

• 47 (1 and 2) - (1) Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. (2) If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action
• 53 (1 (b and d) and 53 (2) - (1) Every child has the right (b) to free and compulsory basic education; (d) to be protected from abuse, neglect, harmful cultural practices, all forms of violence, inhuman treatment and punishment, and hazardous or exploitative labour
• 55 (c) - The State shall take measures, including affirmative action programmes, to ensure that the youth— (c) access employment.

The petitioners want a declaration be made that the respondents cannot overhaul and replace the existing system in absence of proper framework.

They want a declaration to be made that the introduction of CBC to replace the 8-4-4 system violates the constitution.

They want an order of injunction be made to restrain respondents from further implementing CBC.