W.J. and L.N. were class six pupils at J Primary School. Astarikoh Henry Amkoah was then a teacher at the school, as well as the Deputy Head teacher of the School. On the 4th and 10th July 2010, the teacher had had sexual intercourse with W.J. and L.N., who were 12 and 13 years old then.
The Teachers Service Commission (the “TSC”), a public authority established under Article 327 of the Constitution of Kenya, whose responsibilities included registering, recruiting, employing, and exercising disciplinary control over teachers, pursued a disciplinary action against Astarikoh Henry Amkoah because of these allegations. The matter was reported to the police and the respondent teacher was charged with defilement of the children contrary to Section 8(1) as read with Section 3 of the Sexual Offences Act No 3 of 2006. However, he was acquitted of the criminal charge of sexual abuse.
W.J. and L.N, assisted by their parents, submitted a petition to Kenya’s High Court against Astarikoh Henry Amkoah, J Primary School, the TSC and Kenya’s Government, pursuing damages compensation for the alleged sexual abuse. They also claimed damages against the other respondents jointly for their responsibility regarding the actions of the teacher, and sued the Government of Kenya for failing to put in place measures to control sexual abuse of students in schools.
The Court determined that it had jurisdiction to consider this case under Article 22(1) of the Constitution (2010), which gives persons the right to seek courts’ intervention in cases of rights violations, and Article 23(1) read together with Article 165, which provides for the jurisdiction of the High Court in enforcing constitutionally guaranteed rights.
The Court noted that while Astarikoh Henry Amkoah was acquitted from the sexual abuse charges against him, the TSC applied disciplinary measures against him, based on the allegations of sexual abuse from W.J. and L.N. However, the Court observed that an acquittal did not mean a person could not be found culpable in a disciplinary proceeding (See Spadigam (J.) vs. State of Kerala, (1970) ILLJ 718 Ker, Indian High Court). The Court therefore found, on a balance of probabilities, that the respondent teacher had committed the alleged acts.
The Court noted that the events of the case occurred when the repealed constitution was in force, which did not have provisions on the right to dignity, the right to health, and the right to education, though it contained provisions on non-discrimination and the right to freedom and security of the person. The Court followed the principle that the Constitution did not apply retrospectively so that acts done under the 1963 Constitution would not be determined by the new Constitution, unless the nature of the violation was continuing. In this sense, the Court found that the violations on the right to dignity, which included emotional and psychological trauma, were of a continuing nature, and therefore fell under the new Constitution.
The Court also observed that the rights guaranteed to children under the 2010 Constitution, specifically the right not to be subjected to any form of sexual or physical violence, and the rights to education, non-discrimination, and dignity, are guaranteed to children under the Children’s Act, 2001. These rights are also guaranteed under the Convention on the Rights of the Child (CRC) which is was adopted under domestic law by the Children’s Act. The Court specifically recognized that Article 19 of the CRC provided that state representatives must take measures to protect the child from all forms of abuse, including sexual abuse, and also to support the child in cases where violations have occurred.
Consequently, the Court held that the acts of Astarikoh Henry Amkoah amounted to a violation of the rights to dignity, education, and health of the petitioners. The Court also held the teacher liable for damages.
On the other hand, the Court inquired into the measures the authorities had taken to protect school children from sexual abuse. The Court recognized that he actions of the Government and the TSC were limited, as there was not only insufficient enforcement of ethical standards, but they also were not effective. There was insufficient awareness raised among both students and teachers about the ethical standards that stipulated the professional boundaries of the teachers. Moreover, the Court observed that the Government and authorities failed to take any measures to address the consequences that the sexual abuse perpetrated by teachers had on the survivors.
The Court affirmed that the authorities have a duty of care to the students, such that if they failed to safeguard the students from sexual abuse, they not only failed in their duty, but were also responsible for the conduct of teachers who sexually abused the children. The Court therefore held that the J Primary School, the TSC, and Kenya’s Government were responsible and liable for the conduct of the teacher.
The Court found that the Government had not done enough to hold people accountable who abused vulnerable persons under their care, “or to place a duty of care on those who employ them, to diligently exercise their duty of care, first by ensuring that they do not employ persons with a history of abuse, and secondly, to ensure that they avoid instances of abuse in their institutions.” To this end, the Court found that it is not enough to prosecute sexual offenders. Rather, it was important to commit to ensuring that there is no room at all for abuse in institutions that care for vulnerable groups.
The Court declared that the respondents’ actions and inactions violated the rights to health, education, and dignity of the petitioners. It also declared that all schools and school teachers are at all times under the legal status of a guardian and are under a duty to protect all students from sexual and gender-based violence or harm by teachers. It awarded damages for W.J. amounting to 2 million Kenyan shillings (equivalent to 20,000 USD), and 3 million Kenyan shillings (equivalent to 30,000 USD) for L.N