Progressive HighCourt Ruling on Adolescent sexual and Reproductive health.

July 3, 2015by CREAW0

In the year 2010 CREAW was implementing a project under support from Ford Foundation which focused on among other things addressing teachers student sexual violence in Kenya. The project also aimed to carry out a study to identify the structural ,policy and systemic gaps the `TSC faced in dealing with teacher student sexual violence and jointly develop measures to track the prevalence and strengthen policy and practical responses by the TSC and other state and non state actors.
In the course of implementing the project CREAW was alerted to a case of teacher student sexual violence at Jamuhuri Primary School in Nakuru  where it was alleged that the head teacher Mr Starikho Henry had sexually abused /defiled two minor girls aged 12 and 13 years respectively. CREAW supported the girls through their guardian to file a criminal case against the head teacher at Nakuru Chief Magistrates Court.
At the same time CREAW  supported the minors ( through their guardian ) to file a first of its kind Constitutional  suit against the Head teacher , Jamuhuri Primary School , the Teacher Service Commission and the Attorney General seeking declaration  suit seeking the Courts decision that the TSC , school administration are liable for the infringement of the abused girls right to education through negligence  and are also individually and severally liable to pay punitive ,exemplary  and special damages to the survivors for  physical injuries and mental suffering sustained by the survivors.
The suit was based on Articles 2 ,10,20,22,23,27,28,29,43 and 259 (1) of the Constitution of Kenya, Sections 8 (1),(3) of the Sexual Offences Act 2006 , Sections 4 and 7 of the Children Act .
The case was prosecuted by Chigiti and Company Advocates who specialize in human rights abuse cases and CREAW was also able to enjoin COVAW, The Cradle, Girl Child Network, Centre for Reproductive Rights as interested parties. The  Independent Medico-legal Unit ( Imlu) and Waiyaki and Waiyaki associates Nairobi Women’s GVRC, Tomorrow’s Child Initiative were also on hand to provide much needed technical support in the case outside the court process.
The case was recently decided by Justice Mumbi Ngugi who delivered a very progressive landmark decision which has far reaching consequences for cases of teacher student sexual violence.  Justice Mumbi concluded  in her judgment as follows;

  • That based on the facts of the case provided that Mr Starikho did indeed commit the acts that he was accused of. His employer, the TSC, found him culpable of breaching the Code of Conduct and Ethics, and not only dismissed him from employment but struck him off the register of teachers.
  • The acts of the head teacher  resulted in a violation of the minor girls  right to dignity, health and education, for which violation for which he is liable in damages
  • That despite the Teacher Service Commission having in place Circular 3 of 2010 outlawing teacher student sexual abuse ,the same has not been effected by the TSC . In addition over and above dismissal of sexual offenders the TSC does not deal with the psychological trauma and stigma that the victims of such violence experience.
  • That all acts of Sexual and gender based violence  against the two minor girls and all students amounts t o violations of their right to health as provided for under Article 43 (1) of the Constitution and section 7 of the Children Act
  • That all schools and school teachers  are at all times under legal capacity as guardians and are under duty to protect all students from sexual and gender based violence or harm by teachers
  • That the state must immediately take measures to ensure  that pedophile teachers are not shuffled to other schools and put in place protection measures to ensure that no one with propensity to abuse children is ever giver opportunity to do so

That the minors be awarded 2 million and 3 million Kenya shillings in damages to be paid by Starikho Henry , Jamuhuri Primary School and Attorney General.
Download: Adolescent sexual and Reproductive health – Judgment – Petition No 331 of 2011

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