The High Court has directed the Ministry of Education to set up the Education Standards and Quality Assurance Council (ESQAC) within 60 days.
Justice Lawrence Mugambi further directed that the ministry should appoint relevant officers to the council as required by section 64 of the Basic Education Act.
He said failure by the ministry to establish the council as required by the Act was an affront to the rule of law and principles of governance.
“To allow the Ministry to act as it wishes in the circumstances will be to decline the authority of the law and to that extent that of Parliament against the Constitutional doctrine of separation of powers,” the judge said.
Justice Mugambi dismissed the ministry’s argument that the petitioner, Dr. Christopher Galgalo Ali, did not demonstrate how education standards had fallen due to non-establishment of the said Council.
The court said the argument was untenable as what was in issue was the arbitrary refusal to implement an express statutory provision for which it has no discretion to exercise.
“Besides, it will be denying the children the benefit of getting quality education standards which is the objective behind that provision in the Basic Education Act that is geared toward ensuring that quality education standards are maintained through this structure,” said the judge.
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Dr. Ali, a former head of the council, moved to court in 2022 arguing that the ministry was in breach of Sections 64 and 65 of the Basic Education Act, citing failure to give effect to the statutory intention of a functional and operational council as stipulated by law.
He said the continued lack of the Council and its quality assurance officers amounts to psychological torture on teachers and students, especially with the Competency-Based Curriculum (CBC).
He informed the court that the Department of Education obtained Ksh40 million every year for the fulfillment of the council yet none had been established so far.
In the decision, Justice Mugambi said the conscious failure to appoint the council against an express statutory provision entitles the court to review the inaction of the government.
“In any event, I would hold that deliberate failure to enforce a specific statutory provision whose objective is clear amounts to undermining the achievement of the stated purpose to the detriment of the public,” he said.
By Jane Riana
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