By Dr. Judith Oloo
Taabu, youngest of six children in her family is a 12-year-old girl from Korogocho (Koch) slum located in the northeast of Nairobi. It is estimated that more than 200,000 people live in the 1.5 square kilometre area. Her parents eloped and moved to the city from their village in Rumuruti region in the early 90’s. Unfortunately, her father passed away after contracting cholera and since then, her mother’s mandazi (fried Kenyan doughnut) business has been the source for their evening meal and sometimes breakfast; which constitutes of black tea and mandazis remaining from the business. Taabu and her siblings assist in settling other household expenses by collecting plastic bottles and selling them to kerosene oil suppliers in Koch. Over the weekend, they help their mother in vibaruas (casual jobs) such as washing clothes, houses and general cleaning for privileged people in the next neighbourhood.
Taabu attends Jitegemee Primary public school located within Koch. She desires to go to university, study medicine and be a doctor who treats all manner of sicknesses including that which killed her father. She dreams of making a mark in her society so as to improve the lives of many young children from similar backgrounds.
However, Taabu’s dreams are threatened by the fact that the education she receives at Jitegemee Primary school will probably not allow her to realize her dream. In her standard 4 classroom, there are 137 pupils who are taught by 3 teachers. Though she goes to school regularly and punctually, she hardly performs well mainly because she cannot hear her teacher’s instructions, as the class is too big. Her school does not have textbooks and other basic facilities such as clean drinking water and enough washrooms. In fact, many of her friends miss school occasionally because many households cannot afford a meal and it becomes difficult for children to learn with hunger pangs. Taabu’s case is similar to that of about 800,000 children in Kenya.
Education is a fundamental human right formally assured by the Government as provided for in the Constitution of Kenya in [Article 43 (1) (f), Article 53 (1) (b)], various laws and international systems that Kenya is party to, particularly the International Convention on Economic, Social and Cultural Rights. Hence education is an entitlement of all children in Kenya including those residing in low-income neighbourhoods. Children in the similar situation as Taabu’s are discriminated upon since they do not receive the same quality of education like those from middle-income and affluent families. Taabu and her friends rarely compete effectively in national exams since they are completely locked out of good schools (provincial and national schools) and so further marginalization occurs. Thus, children unlikely make it to college.
According to the Right to Education Country fact sheet, the introduction of free primary education in 2003 has seen a significant increase in enrolment of pupils. Years have gone by and the growth of disparities in the quality of education provided to children in low-income settlements and that received by children from middle-income families is noteworthy.
We, The East African Centre for Human Rights (EACHRights) have made the following recommendations to the Government of Kenya in a bid to alleviate discrimination that children like Taabu face daily.
- To urgently build more public schools in informal settlements.
- To monitor education provided by private actors in informal settlements by setting standards in the curriculum taught, ensuring there are enough and qualified teachers and presence of facilities such as classrooms, washrooms and playing fields, among others.
EACHRights strongly believes that education is a tool for empowerment. We call upon like-minded organizations and stakeholders in the education sector to join us in continuing the fight for equal education standards for all children in Kenya.
Mandatory Minimum Sentencing Vis A Vis Defilement Offences; Is It Necessary?
By Samantha Oswago
On May 14 this year, Hon Judge David Majanja at the High Court in Meru, Kenya ruled to reduce an accused man’s sentence from life imprisonment to 20 years imprisonment after appeal.
The criminal matter 179 of 2019, Re vs. Lukas Mberia which pertained to Mberia having been accused of defiling a nine year old girl as per section 8(1) of the sexual offences act, was reduced based on a previous judgement by the Supreme Court that had abolished the mandatory minimum sentence i.e. life imprisonment.
This decision has raised great concern among the public. Two pertinent questions that have since arisen.
- Does Judge Majanja’s decision thereby lead to the amendment of section 8(1) of the Sexual Offences Act 2006?
- Is the judgement issued by the Court of Appeal a positive or negative development?
We attempt to address these concerns below.
Amendment of the sexual offences act by the court decision. Is it possible?
A court Judgement cannot directly amend statute. Statute can only be amended by the legislature/parliament. This is through the introduction of a bill containing proposed amendments to the floor of the house. The bill is subsequently taken through several readings after which it is presented for presidential assent.
Was the judgement a positive/negative step?
Basis of the judgement
The appellant’s conviction in this matter was upheld by the appellate court in this instance. That is to mean, he was still found guilty of the crime on which his appeal was pegged on. Secondly it is important to note that the basis for the reduction of minimum sentences as prescribed in the sexual offences act such as in this instance emanates from the rationale raised in Francis Karioko Muruatetu & another –v- Republic SC Petition No. 16 of 2015 whereby the court held that the mandatory death sentence prescribed for the offence of murder by Section 204 of the Penal Code was unconstitutional; as the mandatory nature deprives courts of their legitimate jurisdiction to exercise discretion not to impose the death sentence in an appropriate case; and that a mandatory sentence fails to conform to the tenets of fair trial that accrue to the accused person under Article 25 of the Constitution.
In Christopher Ochieng v Republic KSM CA Criminal Appeal No. 202 of 2011  eKLR the appellant was sentenced to life imprisonment on the basis of the mandatory sentence stipulated by Section 8 (1) of the Sexual Offences Act, however the honored judges opined that if the reasoning in the Supreme Court case(Francis Muruatetu) was applied to the provision, it too should be considered unconstitutional on the same basis and therefore set aside the sentence for life imprisonment imposed and substituted it with a sentence of 30 years’ imprisonment from the date of sentence by the trial court.
Setting aside the mandatory minimum sentence which prescribes imprisonment for life by the Court of Appeal was pegged NOT on the nature of the offence but on the constitutionality of such a sentence. As was established by the Muruatetu case, such ‘life’ sentences are unconstitutional. The key issue to consider is constitutionality.
We are therefore in agreement with Hon Majanja regarding the alternative sentence that was issued. Precedent from the court of appeal so far shows that regardless of the setting aside of life sentences, alternative sentences that are meted out are all for a considerably substantial period of time. In Christopher Ochieng, the sentence was reduced to 30 years. In this particular matter, it was set at 20 years.
Perhaps if there is any issue of concern from our end, it would be that the sentencing period issued as an alternative to the ‘life sentence’ be /remain substantial in order to serve as a deterrent to other would be offenders.
It is in the best interest that even as courts issue sentences, due process and the principles of fair trial as enshrined in the constitution (Article 25) are adhered to. Decisions of the courts must ONLY ever be constitutional.
Barriers to enjoying the right to education in Mathare informal settlement
By May Joy Namulembwa
On Tuesday, October 23, 2018, EACHRights together with representatives from the Global Initiative for Economic, Social and Cultural Rights (GIESCR) and the Right to Education Initiative (RTE) went for a community visit to Mathare North Primary school; a public school with approximately 1300 pupils and 30 teachers.
According to Mrs Catherine Kariuki, the deputy headteacher, the institution has had a history of low enrolment rate because many children do not attend school in that area. However, with the help of the United Nations Children’s Fund (Unicef) under the Operation Come-To-School programme, the number of out of school children within the community has reduced drastically. Through the programme, children who were in school acted as ambassadors and convinced the ones out of school to enrol with the promise of incentives like free lunch, books, pens and bags; some of which were donated by Unicef.
Barriers to accessing education in Mathare
A big number of the community in Mathare North slum live in extreme poverty. Mrs Kariuki revealed how some parents sell their children’s textbooks in order to satisfy their desire for drinking and others to buy food. In addition, many pupils are orphans and could not even afford basic items required to sit for the Kenya Certificate of Primary Examinations (KCPE) like geometrical sets. They, therefore, get donations from well-wishers.
Mrs Kariuki attested to the high level of insecurity in the area which has been a threat to pupils attending the school; This was before the perimeter wall was built with sponsorship from Constitutional Development Fund (CDF). Although the perimeter wall is not yet complete, it has greatly prevented outsiders (drunkards, thieves, idlers, etc) from trespassing the school’s vicinity; posing a threat to girls and boys.
3. Gender challenges
In the past, Mathare North Primary School has also had a challenge with retaining girls to school, especially when they hit puberty. Various interventions have been put in place to address this challenge: This includes the running of “Rights of Children” (ROC) club; an association that was set up by an organization called Pendekezo Letu after the abolishment of corporal punishment in schools. Through the club, both girls and boys are informed about their rights and chiefly, their right to education, their right to be in school. Other interventions include providing girls with sanitary towels and panties through the collaborative efforts of county government, NGOs and churches. “Girls are also taught life skills,” said Mrs Kariuki. To keep the boys from feeling left out, Mrs Kariuki calls upon well-wishers to donate boxers for boys because many do not wear anything beneath their school shorts.
Currently, the number of enrolled girls is higher than that of boys who tend to fall victim to child labour. Many children within the settlement are orphans some live with their elderly grandparents and are therefore forced to undertake casual jobs for their daily survival. Other children do “mjengo” (casual work at a construction site), while others sell scrap metals or water. On one occasion, a class 7 pupil was found running a bodaboda (motorbike) business to support his family.
The Deputy headteacher stated that with KCPE recently completed, there would be many children at home, a lion’s share of whom would be working throughout the holiday to fend for themselves.
4. Children closing before the date
Now that children have closed for the third term, Mrs Kariuki reveals that there are children who close the school before the official date. They experience this challenge of children being taken by their parents to their rural homes due to fear of fare hiking as the festive season approaches. Parents in the area dread that if their children remain until the end of the term, they will be forced to pay a lot of money to transport them to their rural homes. Therefore, they take them immediately after they finish the end term examination before schools close for the holiday season. Some parents even take their children before they sit for the final term exams.
5. Additional fees/ levies
Article 53 (1) (b) of the Kenyan constitution states that every child has a right to free and compulsory basic education. However, public schools in marginalized areas like Mathare often state that they are forced to charge fees for various reasons. Most recently, the school has requested parents to step in, in order to take over from where the school feeding programme left off. Initially, UN’s agency, World Food Programme (WFP) provided hot lunches for pupils under the Home Grown School Meals Programme (HGSMP). WFP halted the HGSMP at the end of 2018’s second term, after providing food to arid and semi-arid areas, and urban informal settlements for over 30 years.
In May 2017 during a consultation meeting with WFP and the African Union, Dr Fred Matiang’i the then Education Cabinet Secretary stated, “we want to tell the World Food Programme to go and feed others. We want to give meaning to independence.” Similarly, the WFP Deputy Country Director Paul Turnbull in May 2017 said that the feeding programme would be gradually handed over to the government of Kenya and that they (WFP) would then completely disaffiliate itself from the programme. However, the government of Kenya has still not taken over the programme since these pronouncements were made. It also appears that no significant plans have been made or publicized as to how the programme would be rolled out by the Ministry of Education (MoE). This has left schools in informal settlements in an untenable situation.
Schools are now at a crossroads and have been forced to begin charging pupils for lunch. This is in communities where the WFP feeding programme acted as a prime incentive for enrolment in schools. Most children in low-income settlements come from very poor socio-economic backgrounds, and their parents are unlikely to afford this fee. Mrs Kariuki’s fear now is losing children who cannot afford to pay lunch. She also admits that there are pupils at their school who rely on school lunch as their main meal, often the only one they will consume in an entire day. Some children go as far as to hide food in order to take it home to feed their parents and siblings. The school has since identified the neediest pupils and when there are remnants of the day’s cooked lunch, they call them to pack for carrying home.”What we normally do is we identify them and in case there is any food remaining, they are given to take home,” asserted Mrs Kariuki.
Mrs Kariuki feels lucky: her pupils were able to continue eating free lunch for the whole of the third term due to reserves of uncooked food saved over from previous terms. But their luck is likely to run out soon.
The withdrawal of the feeding programme, therefore, has significant implications, re-establishing barriers to accessing education for many. Mrs Kariuki’s hope for the children in her school and those affected by the halting of the feeding programme is that that the government do something before children from marginalized areas like Mathare North go back to the street. In the meantime, next year when schools open, the school management has requested parents/guardians to brace themselves for paying a fee that shall cater to their children’s meal from February onwards. January shall be the last month for their pupils to enjoy WFP’s reserves from previous terms.
A December 2016 report by Unicef titled “Out of School Children situation in Kenya” revealed that 6 out of 10 children who are not attending school come from poor families; most of them live in marginalized areas like informal settlements and arid and semi-arid areas. As of then, 852,000 children between the ages of 6 and 17 years were not accessing basic education. This clearly shows that the status of education in Kenya is a threat to achieving SDG 4 by 2030. The government of Kenya through the Ministry of Education ought to look into the issues faced by children from vulnerable backgrounds and create a fair process that ensures no child is blocked from enjoying their right.