Parents will have to wait longer to know the fate of the Competency-Based Curriculum (CBC) ahead of the January 2023 double transition of Grade Six learners to junior secondary school and Form One learners to secondary school.
This is after the High Court in Nairobi postponed the planned hearing of a case filed by Ms Esther Ang’awa, a parent and lawyer, challenging the rollout of the new system of education and its implementation, saying it is too expensive for parents.
A three-judge bench was due to hear submissions from Tuesday to Thursday at the Constitutional and Human Rights Division of the High Court in Milimani, Nairobi
The Judiciary explained that the judges appointed by the Chief Justice in December last year to determine the matter are away on official duty. The bench comprises justices Hedwig Ongundi, Anthony Mrima and Anthony Ndung’u.
"Take notice that the hearing of petition of the bench matter petition E371 of 2022 (Esther Awuor Adero Ang'awa Vs Cabinet Secretary responsible for matters relating to basic education) will not proceed as scheduled as the judges will be away on official duties,” said the notice from the court’s deputy registrar.
"We [advise] that the matter will be mentioned on November 22, 2022. We highly regret the inconveniences caused."
Ms Ang’awa withdrew her name from the suit, claiming she had been negatively profiled by the government. The suit is now being prosecuted by her lawyer Nelson Havi, former Law Society of Kenya president.
She filed the suit in September 2021, challenging the replacement of the 8-4-4 education system with CBC. She sought the scrapping of the CBC and its implementation.
Given the immense public interest generated by the petition, seven parties showed interest in joining the legal proceedings but only five were allowed by court.
They were the Kenya National Union of Teachers (Knut), the Kenya Primary Schools Head Teachers Association (Kepsha), the Kenya Union of Post Primary Education Teachers (Kuppet), the National Parents Association (NPA) and the Katiba Institute.
Those rejected were rights lobby group Shadrack Wambui na Sheria Mtaani and Mr John Diro, a parent who sponsors the education of children across Kenya.
In the suit, Ms Ang’awa argued that the new system was rolled out without prior preparations and consultations, and that its implementation will harm children's future. The government has denied the allegations and wants the lawsuit dismissed.
Ms Ang'awa, the parent of a child who was in Grade Three, said that CBC is financially burdensome for students and parents and has economic implications for learners, parents and caregivers.
She argued that its introduction was undertaken in an opaque manner and is shrouded in confusion because the government failed to consult and involve all stakeholders.
She also says CBC is discriminatory and contravenes the rights of children to education and free and compulsory basic education.
She also questioned the training style under CBC. She explained that the new curriculum is based on vocational education and training approaches conceptualised for specific use in training adults in vocational skills.
The lawyer also said CBC imposes the economic burden of procuring course books, learning materials and curriculum designs on children, teachers, parents and caregivers.
"There is a wide public outcry about the manner in which the CBC has been imported from other countries (where it has failed) and implemented in Kenya without due process. The Ministry of Education has infringed the rights of children to basic education," she said.
She urged the court to stop the ministry from further implementing CBC on the grounds that the rollout violates the Basic Education Act of 2013 and the Kenya Institute of Curriculum Development (KICD) Act of 2013.
The legacy projects of former President Uhuru Kenyatta's Jubilee administration, she argued, cannot be used by the Education ministry to justify changing the structure of Kenya’s education system.
"In any event, the system and structure of basic education and curricula [were] never part of the manifesto of the Jubilee administration,” Mr Havi said.
“The unlawful disruption and interference with the same ought not to be countenanced on the strength of now often used terms – 'it is in the public interest' and 'stop fighting government projects'."
He said overhauling the education in pursuit of Jubilee’s legacy projects is "an argument that is not in tandem with what was promised (in the manifesto), but is escapist".
He also said CBC was rolled out before the ministry formulated regulations and rules for it and these were supposed to be approved by the National Assembly.
Under the Basic Education Act of 2013 and the Kenya Institute of Curriculum Development Act of 2013, he said, the Education Cabinet Secretary is obligated to formulate the rules and regulations for approval by the National Assembly.
"The legal framework necessary for the change of the system and structure of education from 8-4-4, and the adoption of the CBC curriculum recommended to the Cabinet Secretary and the KICD by the National Assembly, has not been put in place to date," he said.
Through lawyer Phillip Murgor, Education Cabinet Secretary George Magoha questioned the rationale of the court case.
The lawyer said it was difficult to understand what the parent is challenging as the CBC was rolled out five years ago.
In his view, the petition is late and the court should not grant the orders sought to reverse the ongoing implementation of the CBC because some parents and guardians don’t like it.
The case hearing was delayed after President William Ruto said he would form an education reform task force to review the new curriculum.
Dr Ruto also promised to address the double transition nightmare for Standard Eight under the 8-4-4 system and Grade Six under the CBC to secondary schools in January.
“Public participation is critical in this matter. I will establish an education reform task force in the presidency which will be launched in the coming weeks,” Dr Ruto announced.
He said the team will collect views from the public on areas of the curriculum to be reviewed as court proceedings continue to determine its legality.
