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Legal bigwigs to defend State in case challenging new curriculum

By Kamau Muthoni | September 23rd 2021


Lawyers Philip Murgor (left) and Fred Ngatia [Courtesy]

Education and Interior Cabinet secretaries have hired top-notch lawyers to defend Competency-Based Curriculum (CBC).

Education CS George Magoha has enlisted the services of lawyer Phillip Murgor, while his Interior counterpart Fred Matiang’i has instructed Fred Ngatia to defend the ministry in the case filed by lawyer Esther Ang’awa.

Attorney General Kihara Kariuki will be represented by Immanuel Bitta, while Kenya National Union of Teachers (Knut) is relying on John Mbaluto. In a precursor of what to expect, Ngatia and Murgor opposed an application by Ang’awa’s lawyer, Nelson Havi, to allow interested parties to join the case without a formal application.

At the same time, they asked the court to decline Havi’s other prayer to send the file to Chief Justice Martha Koome to empanel a bench to hear the case without hearing the parties.

“Joinder must be done by the court, we cannot take over that power. I may have difficulties with free riders. As I argued in Muruatetu, the court cannot allow the so-called free riders and it is on that basis that the free riders were now allowed to join. Certification is conferred to the court.

“There was an instance where we consented and Mutunga (Willy) returned the file. It is exclusively for the judge to decide. Any consent of certification will be worthless,” argued Ngatia.

He informed the court that Havi had not sent all the documents filed in court. Ngatia urged the judge not to suspend CBC, instead, this should be determined by the expanded bench.

Murgor told the court that the Education CS had not received all the documents. He argued it was difficult to understand what the case was about without the 1,700 documents.

“It was difficult to understand what the petitioner was saying. The court should order proper service and all parties come back to you for directions. It will be premature for the court to issue directions. A formal application is the most appropriate. To add into the words of senior colleague, there is another category of busy bodies and they should apply to be enjoined,” argued Murgor.

Justice Kihara told the court that he received 162 pages of the case. He too opposed the application that parties should be allowed to join the case without applying to the court.

“My prayer is that we be given time to reply to the motion and to the petition and it is only then directions can be given,” Bitta argued.

Ang’awa wants the court to order the State to revert to the 8-4-4 curriculum.

She wants the court to halt CBC implementation until her case is heard and determined.

“The actions of the first to the fourth respondents as set out in the petition are manifestly unconstitutional and unlawful, are prejudicial to the future of the children of Kenya and ought to be halted pending the hearing and determination of the questions raised,” Havi argued.

Ang’awa is also asking the court to request the Chief Justice to empanel a bench of more than five judges to hear the case. She is of the view that her case involves novel issues, which require more than one judge to settle.

CBC was introduced through basic education curriculum framework 2017, and Sessional Paper no 1 of 2019 on the policy framework for reforming education and training for sustainable development.

According to Angáwa, CBC is not superior to 8-4-4, adding that it does not cater to the needs of the country. 8-4-4 was introduced in 1985.

She argues that CBC cannot stand without amending Basic Education Act no 4 of 2013.

She further says that overhauling the 8-4-4 system is illegal and vague as it converts primary schools to secondary schools without a clear-cut transition process.

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