When courts must be parents

SOMETIMES a court is called on to act as a parent might, and resolve the problems of difficult children. Seldom, though, will two courts in the same country, less than 100 km apart, both hand down such a decision on the same day. But this is exactly what happened in Kenya where two judges both had to deal with errant scholars. The judges found different solutions to the problems before them: one allowed the suspended scholar to write exams at the school, but under strict conditions; the other refused to let the boy involved back onto the campus at all. 

This story appeared first in LegalBrief.

THE two cases heard by the two Kenyan judges both concerned parents anxious about their children who were in trouble with the school authorities. The parents came to court to challenge the suspension or expulsion rulings of the school authorities.

Judges Kanyi Kimondo and Wilfrida Okwany delivered their separate decisions on the same day last month, with a mix of good news and bad, for the affected parents.

Judge Kimondo dealt with the case of a Form Four student found to have a “small container of paraffin or petrol” in her locker.

The school authorities would later explain their strong reaction, saying a strike was looming at the establishment. They feared the “inflammable substance was to be used to torch school buildings”. Given the “widespread torching” of schools across Kenya, they decided to suspend her from school for gross misconduct.

The girl’s father then asked the high court to order her re-admission. He said she was not given a chance to defend herself and that the school violated her constitutional rights, for example, by getting the police involved. This led to her being locked up and left her traumatised.

Relaying the girl’s version of events, the father said she was a prefect and after receiving a report, had found a small container with paraffin inside. She confiscated the container and intended to report it to the school authorities. Before she could do so the school bell rang. Fearing she would be whipped for being late she locked up the container and went to class, intending to report the matter later.

But she did not report it: according to the girl, before she had a chance to act, a teacher told her to point out the container and tried to intimidate her into admitting that she had brought it onto the premises to burn down the school.

Following her father’s court intervention, the judge said her suspension was meant to be temporary but had become just as permanent as an expulsion and he took judicial notice of the fact that final exams were now closing in.

Judge Kimondo said he was prepared to make an order allowing the girl to sit her examinations in October. But he could not grant the further order sought by the family: that the pending criminal charge be withdrawn.

He ordered that the girl be allowed onto the school grounds on weekdays. She would have to wear school uniform and would be searched arriving and leaving the premises. She was not allowed into the boarding area of the school and would be subject to the normal school discipline.

The second judgment concerned another Form Four student, though at a different school. After he allegedly became involved in drug and other substance abuse a disciplinary committee recommended his expulsion although he would be allowed to return, conditionally, to the school for year-end exams.

The boy’s father said various of the child’s constitutional rights were violated, while counsel for the family argued that because the boy was “remorseful, had undergone counselling (and) was not a delinquent”, he deserved to be readmitted to the original school.

Judge Okwany said the school had a moral obligation to uphold the law regarding disciplinary procedures within the institution. The boy breached the school rules and his exclusion was justified, particularly since he was given the option of going to another school. It was undisputed that all the other seven students, found to have infringed the same school rules, were also excluded from the school and had opted for private tuition at home.

The boy’s expulsion thus did not “come out of the blue”, but resulted from his failure to abide by the school rules which applied equally to all students.

The court refused to order that he be readmitted, saying this would send a negative message to the other students that “disobeying school rules attracts no consequences”. Given the “numerous and worrying cases of indiscipline” among students, leading to wanton destruction of property, serious injuries and even loss of life, schools had to be extra vigilant, even expelling students found culpable.

The school had followed due process and the court would not interfere with its administrative decisions. None of the boy’s constitutional rights were violated and the outcome – expulsion with an option to change to another school – was in his best interests.

There is something familiar about these stories, particularly after very recent killings and other brutality in SA schools. However, sections of the school rules quoted by the court appear quite alien.

These rules stipulate immediate and automatic expulsion for “smoking, tattooing, ear-piercing, alcohol and drug abuse”. Likewise, students would be automatically expelled for “acts of lawlessness or rudeness to authority”, while “Satanism, homosexuality, rape and any other infamous conduct will also lead to automatic expulsion.” Several rules as framed here could surely not stand constitutional scrutiny in SA. As for acceptance by the student body – I can just imagine the outcry in SA over a ban on pierced ears.

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S.W.M. suing as the guardian and next friend of G.W. W. (Minor) v Gitura Secondary School & 6 others [2018] eKLR

H O O (a child suing through his father and next friend) P O O v Board of Management N School & 2 others [2018] eKLR

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