By Wahome Thuku

In November 2008, some 106 pupils of Busara Forest View Academy in Nyahururu sat the Kenya Certificate of Primary Education (KCPE) examinations.

When the results were released that December, English results for 96 of the candidates had been cancelled due to alleged collusion.

They were among 1,835 candidates whose KCSE results were cancelled that year out of 625,785 candidates countrywide.

According to Kenya National Examination Council (Knec) CEO Paul Wasanga, 101 of Busara Academy candidates had marked a correct answer in one of the multiple-choice English questions. They had all then erased and substituted it with one wrong answer.

This deviation was easily detected by the computerised marking programme and flagged as an irregularity leading to the cancellation. The council wrote a five-line letter to Busara Academy through Nyandarua DEO informing them of the decision.

Quash letter

The school and 95 parents of the affected candidates sued Knec and the Education minister through lawyer Kibe Mungai. They sought five orders: To quash the letter, to compel Knec to release the results and issue the students with certificates; to stop the minister from filling up 96 vacancies in all national and provincial schools in Central Province and to compel the minister to admit them to those institutions.

Two similar cases were filed in the same court, one by Gilgil Milimani Academy in the Rift Valley and the other by four parents led by Mr Robert Kipkemoi Bygon.

The first judge, Justice Roselyn Nambuye, allowed Busara Academy parents to file the main suit against the council and the minister. She also suspended the cancellation, hence, ordering the examination council to release the results pending determination of the main suit.

But Knec could not do so on ground the results had been cancelled and there was nothing to release.

The main case went before Lady Justice Roselyn Wendoh.

Lawyer Fred Ngatia argued the Knec defence.

Busara Academy headmaster PM Karanja claimed the examinations had been properly conducted according to the council rules. One supervisor and five invigilators supervised it. They had signed a certificate to indicate all had been well.

In lengthy submissions by lawyer Mungai, the school and parents questioned why the invigilators never detected the alleged collusion.

They claimed the cancellation was illegal, malicious, and baseless as there was no evidence to support the collusion claims.

They claimed they had been condemned unheard and the council had flouted the rules of natural justice.

Wasanga described collusion as secretive and clandestine activity, which accounts for 90 per cent of all forms of cheating. It could only be detected during marking.

He explained that the marking is done by Optical Marker Readers, a scientific system, which has a Difficulty Profile Programme (IDP) that detects any typical answer pattern.

Ngatia submitted it had been scientifically established that the possibility of 80 out of 100 candidates marking one answer in more than 10 per cent of the question in any exam was zero.

Undermine process

The council initially agreed to table evidence on how the process actually worked but withdrew the offer at last moment on ground it would undermine the process and integrity of future examination results.

Wasanga said the Busara Academy results were analysed by experts and the council’s research team who on December 18, 2008 concluded the deviation was a result of collusion.

The CEO argued the affected students could not be heard before cancellation as a computer programme picked them and there would be no time to hear them.

Education PS Karega Mutahi swore an affidavit on behalf of the minister and Senior State Counsel Anthony Ombwayo argued their defence.

He said before the exam started all candidates had been warned of the consequences of cheating.

Ombayo argued Knec rules empowered the council to cancel results or disqualify candidates. He said each of the 96 pupils was punished individually. The council and the minister submitted that there was only one male invigilator at Busara Academy, which was a mixed boarding school, and some female candidates may not have been frisked before entering the examination rooms as required.

Ombwayo asked the court to weigh the cancellation against the wider public interest.

At the onset it was agreed the judgement in the Busara Academy case would apply to the Kipkemoi and the Milimani Academy cases as the issues were similar.

The judge also ruled that contrary to the position argued by lawyer Ngatia, the court had authority to determine the issues raised in the case.

She said Knec had the mandate to conduct exams and could not be said to have acted outside its authority by cancelling results as argued by Kibe.

Justice Wendoh cited a host of previous court decisions on similar issues. She agreed that there was no reason why the council would have only picked out the Busara Academy for cancellation of the results.

She also ruled that the student could not be heard before the cancellation due to the nature of the case.

The Children Act

"A hearing would take away the confidential nature of marking," she stated. The court concluded the examination body had not acted maliciously or discriminately.

On the right to education argued by lawyer Mungai, the judge agreed that the 96 Busara Academy pupils were entitled to that right under the Children Act and other international instruments. But that right covered all Kenyan children and the court had to balance the interest of the 96 pupils with the rest.

"The exams have become very competitive due to limited spaces in high schools, universities and job markets hence the increased cheating. It would be unfair for a candidate to be awarded marks they do not deserve as the candidate would have undue advantage over others and would breach the rights of those not affected," the judge held.

Wendoh observed that from previous decisions, the courts had been reluctant to interfere with specialised functions of examination bodies.

The Busara Academy case and effectively the other two suits were dismissed. They were all ordered to pay costs to Knec and the minister.

—The writer is a court reporter with the Standard Group