The Court of Appeal has affirmed an order finding that the Teachers Service Commission (TSC) ought to bear the responsibility of sex pests preying on children in schools.
In a decision requiring TSC to pay two minors Sh5 million as compensation, Appeal Court judges Roselyn Nambuye, Martha Koome and Fatuma Sichale declined to set aside the award by the High Court, saying the commission has to ensure minors have a safe learning environment.
The three judges agreed with Justice Mumbi Ngugi’s finding that by TSC entrusting a school headteacher with the education of two girls whom he defiled, it was equally to blame for not having safeguards to ensure the said teacher did not abuse the minors.
TSC has been put on the spot, as an employer, for not addressing cases of defilement that involve teachers.
At the same time, the judgement paves way for other defilement victims to pursue the Nancy Macharia-led teachers commission for compensation.
“As innocent victims, the minors are entitled to compensation for having been subjected to such humiliation, shame, and pain that may have a lifelong effect on them. It is inconceivable how the minors in their tender years are made to carry that kind of burden of shame due to selfishness of a caregiver,” the judges ruled in a judgement read by Justice Koome.
The commission had filed an appeal contesting a High Court award of Sh5 million given to two girls who were defiled on several occasions by their headteacher on grounds that the lower court erred when it associated it with the criminal act.
TSC raised 10 grounds on which the award should be set aside, arguing that Justice Ngugi erred when she apportioned the liability for the criminal acts by its employees.
“The judge failed in law and fact by failing to appreciate that there are adequate and convenient measures provided under the criminal justice system and common law regime for the acts committed by Henry Amkoah,” the appeal filed in the court’s registry read in part.
The case, which was moved by two parents from Nakuru County where both incidents occurred, argued that girls in schools are increasingly at risk of being defiled by a teacher.
The parents were aggrieved by the fact that their two daughters were victims of defilement by a deputy headteacher who ended up being set free.
According to the girls’ lawyer John Chigiti, the number of girls impregnated by teachers since 2010 when the two minors were defiled has continued to rise despite the commission having structures and laws to govern how the parties should interact during school hours. Chigiti, in his submission, told the court that in 2010 alone, 600 teachers were accused of defiling school-going children with some counties reporting more than 200 peadophile cases.
The children’s rights lawyer said the trend was worrying, adding that children who fall victim have to lead a life of shame, with physical and emotional torture.
In her ruling Justice Ngugi agreed with Mr Chigiti’s submissions that the teachers’ employer had not done enough to tame the menace.
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“It is important to send a message that a teacher who violates the rights of children they are entrusted with will be held culpable for it. The government must ensure that it is protecting minors. It should place effective means to ensure anyone who has a thought to defile a kid does not do so,” the judge ruled.
A report filed by a child therapist to support the case demonstrated that the event had taken a toll on the girls and it was difficult to have them pull out of the ugly memories in the hands of their teacher.
According to a counselling report filed before the court, the teacher had intimidated the two minors to subdue them and also to ensure they kept silent about the incident.
This fear made the girls to hide the information from their parents who came to learn of the ordeal long after it had happened. “There is a failure, as the petitioners submit, in providing support and remedies for children who may be subjected to sexual violence by their teachers.
“The court notes the fact from various studies, which the TSC tacitly concedes, that many teachers are serial offenders, who abuse students in one school and are often transferred to other schools, where the abuse continues,” Justice Ngugi said.
Following the incident, one of the girls had to drop out of school and the other opted to soldier on with the education despite the harsh environment she faced, which affects her concentration in class.
In a bid to help them heal and move on after the brutal ordeal, the girls who are in their teens will also receive special counselling.
“I award Sh2 million for the first girl and Sh3 million for the second girl who dropped out of school. I, therefore, direct that the above awards, upon payment, be deposited in an interest-earning account in trust for them and be utilised to further their education or training with a view to their being able to make a sustainable living for themselves,” the judge said.
She ruled that TSC should compensate the two girls. The funds are to be spent on their education until they complete university studies.