The 2015 High Court judgment by Justice Mumbi Ngugi, in a sexual offending case involving the deputy head teacher of a primary school in Nakuru County, was a microcosm of the unresolved issues regarding sexual offences against children in schools. This topic has returned into public debate, in the wake of the recent incident at Moi Nairobi Girls School.
The case before Justice Ngugi sought a declaration that the teacher, his employer, the Teacher Service Commission, and the government had breached the constitutional rights of two girls, alleged victims of multiple acts of rape by the teacher.
A magistrate had already acquitted the teacher of charges of defilement of the girls, aged 12 and 13, who he also taught Kiswahili. Supported by advocacy groups, the families of the two minors had brought civil proceedings in the High Court, against the teacher personally as well as against the TSC as his employer, and the Attorney General, as a representative of the government.
The claim in the High Court was that, although he had been acquitted in the criminal trial, the teacher was still liable for violation of the constitutional rights of the two minors, and that the TSC and the government were, therefore, vicariously liable for the acts of the teacher.
The facts of the case were that sometime in 2010, the teacher had lured the two children to his house, where he ordered them to do domestic chores like cooking and cleaning, during which he raped one of them. On different subsequent occasions, one of them in a classroom, and with other pupils witnessing it, the teacher raped the children again.
Notwithstanding the acquittal, the TSC had dismissed the teacher from service and struck his name from the register of teachers, after finding that his actions breached the Code of Conduct governing the profession.
In her judgement, Justice Ngugi dismissed the argument that an acquittal in criminal proceedings was a bar to subsequent civil proceedings based on the same facts or that culpability in criminal proceedings was automatic evidence of liability in civil proceedings, or vice versa.
In defending itself against allegations that it was vicariously liable for the actions of the teacher, the TSC presented evidence of a circular it had issued in 2010, explaining that the circular was prompted by an increase in sexual offending by teachers, and was meant to provide comprehensive guidelines on the expected conduct between teachers and students of the opposite sex with a view to curbing the problem.
The judgement of the court turned on the fact that the TSC had dismissed the teacher from its employ, which the court held to be evidence of personal liability.
The uniqueness of the judgment is the finding that the TSC was also liable for the action of the teacher, through the principle of vicarious liability.
“Vicarious liability” is liability that a supervisory party (such as an employer) bears for the illegal conduct of a subordinate or associate (such as an employee) based on the relationship between the two parties. Thus, for example, a driver who causes an accident in the course of employment is individually liable. The driver’s employer is vicariously liable for the same act, and both are also collectively liable.
The second reason why this judgment is important is that it defined the standard of care against the risk of sexual offending that the law imposes on authorities that run schools, and similar institutions.
Citing judicial authorities from elsewhere, the judgement noted that the experience shows that “boarding schools, prisons, nursing homes, old people’s homes, geriatric wards, and other residential homes for the young or vulnerable, there is an inherent risk that indecent assaults on the residents will be committed by those placed in authority over them, particularly if they are in close proximity to them and occupying a position of trust.”
By running such institutions, the concerned authorities assume the burden of ensuring that sexual assault does not occur. The courts have developed the law by defining the standard of care that comprises the duty. It is the same standard of care that a “careful and prudent parent” would take to prevent a similar act from happening when the child is under the direct care of the parent.
In families, a large part of the protection from sexual offending is done by talking to children about it. By contrast, the government approach is that its duty ends when it makes rules against sexual offending. No careful or prudent parent would allow exposure the risk of rape, only because the rapist might be prosecuted.
Whatever people do as families to keep their children as safe as possible from rape, schools must do the same, or more, to keep safe from sexual molestation, the children that families place under their care. In addition to rules, safe spaces where school communities proactively discuss and respond to the risk of sexual offending before it occurs are needed.