A gavel.
Dear Wakili,
We are a passionate group of parents, drawn together by our shared experiences from the same secondary school. We are deeply troubled by the recent tragic incidents where students have died in schools. Do teachers have any legal responsibilities in safeguarding their students?
Chairman
Dear Chairman,
Teaching, as a profession, is fundamentally grounded in essential philosophical and operational principles that encompass both legal and social dimensions. It notably highlights its focus on humanity.
This framework is supported by the Constitution, the Basic Education Act, and the Teachers Service Commission Act.
Collectively, these legal foundations establish four critical elements that delineate teaching as a distinguished profession: Individual rights and responsibilities; the organisational image and professional affiliations of those engaged in the field; the organisational mandate and defined methods of operation and professional ethics, integrity, and public trust that are imperative to the teaching profession.
According to Article 10 of the Constitution, teachers are recognised as part of an organisation committed to the principles of good governance and national values. It is mandatory that both teachers and parents fulfill their shared obligation, as demanded of them in Article 53, Clause (2) to protect and promote the best interests of the child who transitions between their care during school days and holidays.
Every child, as given in Children’s Act (2022) has the right to protection from all forms of harm. As a society, we share a collective responsibility for ensuring their safety, recognising that each caregiver has a distinct and essential role to play in this endeavour. Article 29 of the Constitution underscores the importance of physical safety of all people and so are children, positioning the state as a significant partner in supporting the well-being of all students within educational institutions.
Educational facilities serve as environments for learning and development, which necessitates a serious commitment to the care of children, particularly while they are on school premises. Central to this commitment is the duty of care, which educators and support personnel are obligated to uphold. This duty extends beyond legal requirements; it encompasses a proactive approach to implementing measures that safeguard the safety and well-being of each student.
According to tort law, the duty of care refers to the obligation of individuals to adhere to recognised standards that mitigate the risk of foreseeable harm. Therefore, all individuals entrusted with the responsibility of caring for others—whether they be children, equipment, or processes—must diligently act with responsibility and caution.
Duty of care includes several important principles. First, a relationship must exist that creates a duty and requires accountability from the person or organisation in power toward those affected by that power, directly or indirectly.
Second, foreseeability is the idea of anticipating potential harm that could occur between the caregiver and the care recipient. This means taking appropriate steps to prevent harm or lessen its effects if it happens.
The third principle is reasonable care, which checks the effectiveness of these preventive steps. We assess reasonable care by considering what a reasonable person would do in a similar situation. Finally, the fourth principle is about recognising the need to protect against or prevent harm.
In education, teachers and school administrators have a duty of care based on both formal and informal agreements with parents, students, and government bodies. Their main responsibility, besides teaching, is to prevent harm and, when harm occurs, to show they are committed to reducing its impact.
The 2018 judgment by Justice Roselyn Aburili in the case of the State versus Gertrude Adhiambo Oneya highlights the responsibilities that teachers have towards the welfare and well-being of the children in their care. Gertrude was accused of murder after a minor, whom she was responsible for, was found dead shortly after leaving her class.
In her ruling, Judge Aburili stated: "A teacher in the position of the accused is, in my humble opinion, in loco parentis to the children placed under her care.
She has a duty of care towards her pupils, especially those with special needs, like the deceased child, when managing their safety. The accused had a responsibility to protect the special needs child from foreseeable injury or harm, similar to that of a parent.
The standard of care expected is that of a reasonably careful parent, and this standard can vary based on factors such as the child's age and condition. In this case, the child was completely blind. Legally, while teachers are not bound by parental responsibility, they must act as any reasonable parent would when it comes to promoting the welfare and safety of the children in their care."
