High Court of Kenya
19 May 2015
Article 3: Best interests of the child
Article 19: Protection from abuse and neglect
Article 37: Torture and deprivation of liberty
Article 39: Rehabilitative care
Other international provisions:
International Convention on Economic, Social and Cultural Rights
Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment
African Charter on Human and People’s Rights
African Charter on the Rights and Welfare of the Child Universal Declaration of Human Rights
Kenyan Constitution Children Act
Sexual Offences Act
The two plaintiffs, aged 12 and 13, were victims of sexual abuse by the first respondent who was their teacher. He was acquitted in a criminal trial decided prior to this decision. The other respondents were the school which the victims attended, the Teachers Service Commission (TSC), which employed the abuser and the Attorney General. The plaintiffs argued that the abuse suffered by them amounted to a violation of their constitutional rights and that the second, third and fourth respondent were vicariously liable for the violation of their rights.
Issue and resolution:
Liability for sexual abuse of children. The Court had to decide whether the abuse amounted to a violation of the plaintiffs’ constitutional rights and whether the second, third and fourth defendant can be held vicariously liable for the acts of the first defendant. The Court found that the sexual assaults committed by the first respondent were a violation of the plaintiffs’ rights to dignity, health and education and that the plaintiffs’ school, the TSC and the Attorney General were vicariously liable for the abuse.
The Court first considered plaintiffs’ argument that their rights to health and education guaranteed under Article 43 of the Kenyan Constitution had been violated by acts of sexual abuse by first respondent, as had their rights to dignity and non-discrimination under Articles 27 and 28, and the protection from torture and other cruel and degrading treatment under Article 29.
The Court noted that the version of the Kenyan Constitution in effect in 2010 (when the sexual abuse took place) was the 1963 Constitution which did not contain the guarantee to human dignity contained in Article 28, nor the socio-economic rights contained in Article 43. But the 1963 Constitution did have non-discrimination provisions and guaranteed the right to freedom and security of the person. However, the rights guaranteed to children under the current Kenyan Constitution, specifically the right not to be subjected to any form of sexual or physical violence, the right to education, non-discrimination and the right to dignity, were also guaranteed to children under the Children Act 2010 and by the Convention on the Rights of the Child which is domesticated in Kenyan law by the 2010 Act. Therefore, the Court found that first respondent’s conduct amounted to a violation of plaintiffs’ rights to dignity, health and education.
In relation to the issue of vicarious liability, the Court ruled that the second to fourth respondents had a duty to safeguard pupils from sexual abuse by their teachers. The Court held that the measure taken by the TSC to place a circular with regard to the rights of minors not to be subjected to any form of sexual violence did not sufficiently discharge their duty to put in place appropriate policies to protect children. Therefore, the Court concluded that the second to fourth respondent were vicariously liable for the acts of the first respondent. The judge stated: “Indeed, I would go so far as to say that the TSC, the State and any educational or other institution in which teachers or other care givers commit acts of sexual abuse against those who have been placed under their care is vicariously liable for the wrongful acts of its employees.”
Excerpt citing CRC and other relevant human rights
35. They maintain that the conduct of the 1st respondent offended both the constitutional rights of the petitioners as well as the TSC/CIRCULAR No 3/2010 dated 29th April 2010. It is also their case that the act of the 1st respondent offends Article 12 of the International Convention on Economic, Social and Cultural Rights, Articles 14 (1) and 16 (1) of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Articles 3 (1), (2), (3), 19 (1) (2) and 37 of the Convention on the Rights of the Child, Articles 3 (2) and 5 of the African Charter on Human and People’s Rights, Articles 4 (1) and 16 (1) (2) of the African Charter on the Rights and Welfare of the Child.
44. The Cradle supports the petitioners’ case and filed an affidavit sworn by its then Executive Director, Eric Ogwang, and written submissions dated 29th February 2012. Its submissions focus on the state’s obligations with respect to the rights of children. It submits that Kenya is a State party to, among other international and regional human rights instruments, the African Charter on The Rights and Welfare of the Child (hereafter African Children’s Charter). Consequently, Kenya therefore has a tripartite typology of human rights obligations that it shall respect, protect and fulfil the rights of all within its jurisdiction.
47. Cradle cites several provisions of international and regional covenants which it states casts obligations on the state with respect to the rights of the petitioners, inter alia Article 1 (1) of the African Children’s Charter; the African Charter on Human and People’s Rights, and the International Covenant on Economic, Social and Cultural Rights. It is its submission that the state is bound by the provisions of these conventions by virtue of Articles 2(5) and 2(6) of the Constitution
48. Cradle argues that the state is in violation of Articles 11 (3) (d), (e), 14 (1), 27 (1) (a) of the African Children’s Charter. It cites the case of Nubian Children –vs- Kenya (Communication No 002/2009 at paragraph 69) in which the African Children’s Committee found the government of Kenya to be in violation of numerous Articles, including the said Article 11 (3) of the African Children’s Charter. It has also relied on the decision in Purohit and Moore –vs- The Gambia, (Communication No 241/2001 at paragraph 80) in which the African Commission on Human and People’s Rights held that the enjoyment of the human right to health, which is guaranteed under the African Charter on Human and People’s Rights, is vital to all aspects of a person’s life and well-being, and is crucial to the realisation of all other fundamental human rights and freedoms.
49. Additionally, Cradle calls in aid the case of Free Legal Assistance Group and Others –vs- Zaire, (Communication No 25/89, 47/90, 56/91, 100/93 in which the African Commission on Human and People’s Rights emphasised that the failure to provide access to institutions of learning through closure of universities and secondary schools would amount to a violation of the right to education under Article 17 of the African Charter on Human and People’s Rights. It the court to:
- Declare that all acts of sexual and gender based violence against the 1st and 2nd petitioner and all students amount to violation of their right to education as provided for under Articles 11 (1) (3) (d) and (e) of the African Children’s Charter.
- Declare that all acts of sexual and gender based violence against the 1st and 2nd petitioner and all students amounted to a violation of their right to the highest attainable standard of health as provided for under Articles 14 (1), 27 (1) (a) of the African Children’s Charter.
- Grant orders as prayed in the Petition.
79. The Amicus submits that while the justice system and the law, particularly the Sexual Offences Act, deal with the criminal aspect of the violence, once the offender is in prison, the psychological and financial assistance that the survivor of the offence requires is not taken into account. The Amicus submits therefore that the Sexual Offences Act does not adequately heed Article 39 of the Convention on the Rights of the Child, which requires State Parties to make provision for rehabilitation of children who are victims of sexual abuse.
115. It must be acknowledged, however, 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, the right to education, non-discrimination and the right to dignity, were guaranteed to children under the Children Act. These rights were also guaranteed under the International Convention on the Rights of the Child, which had been domesticated through the Children Act.
116. The Convention on the Rights of the Child provides as follows at Article 19: States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child. Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.
CRIN believes this decision is consistent with the CRC, which requires State Parties to take all appropriate measures to protect children from sexual abuse and to establish appropriate social programmes for the prevention of abuse and the treatment of victims ( Article 19). The Court was correct in holding that vicarious liability for child sexual abuse can attach to school authorities and the state where the requirements of Article 19 are not met.
High Court of Kenya at Nairobi, Constitutional and Human Rights Division, Petition No. 331 of 2011
Link to Full Judgment:
This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice.