WJ & LN (suing through their guardians JKM and SCM) v Astarikoh Henry Amkoah & 4 others
High Court at Nairobi
Petition No 331 of 2011
Justice Mumbi Ngugi
May 19, 2015
WJ and LN sued Astarikoh Henry Amkoah, Jamhuri Primary School in Nakuru county, the Teachers Service Commission and the Attorney General over their defilement by a deputy headteacher.
They filed a petition at the constitutional and human rights division of the High Court through their guardians JKM and SCM.
In their petition the two girls said Amkoah, who was also their Kiswahili teacher, defiled them on
July 4 and 10,
2010. At the time they were in standard six and 12 and 13 years old.
JKM, who is LN’s aunt and guardian, said at around 7am on July 4, 2010 her niece told her that Amkoah inivited them to go to the Nakuru ASK show with other pupils.
She allowed LN to go but later noticed that her niece was behaving weirdly. JKM contacted SCM, who is WJ’s mother. JKM told SCM about LN’s behavior and SCM told her that her daughter had also changed and was very withdrawn.
JKM said after probing LN further, the girl told her that Amkoah had defiled her and WJ on numerous occasions in a classroom, in the staff room and in his house.
The girls, in their petition, say Amkoah joined their school in July 2010 and that same month, he invited them to his house.
When they arrived at his house, he went to his farm and came back with potatoes.
He ordered LN to peel the potatoes and cook lunch, which she did. WJ was told to mop the house.
WJ said Amkoah tried to defile her in the toilet. LN said the deputy headteacher defiled her in the corridor of his house as she mopped it.
Justice Mumbi Ngugi acknowledged that there were some inconsistencies in the two girls’ statements but she said that these could be explained by the fact that their affidavits were sworn in 2011, a year after the defilement took place.
Judge Ngugi said: “What emerges however is that the 1st respondent (Amkoah) did invite the two minors to his house, made them do housework for him, including cleaning his house, ironing his shirts and cooking for him, and that he was alone with each of them during which he defiled LN and tried to defile WJ.”
WJ said on July 30, 2010, Amkoah tried to rape her in a classroom. She said some students witnessed his attempt through a window.
WJ and LN said the incidents were reported to the area chief in August 2010 and in September 2010, they recorded statements at Solai Police Station after JKM reported Amkoah to the police.
Amkoah was charged with defilement. However he tried to settle the matter amicably through elders but his efforts failed. Disciplinary action was taken against him by the TSC and he was sacked and removed from the registry of teachers.
He was charged at the Nakuru Chief Magistrate’s court. At the time of the hearing of this constitutional petition his criminal case had been heard and he was found not guilty of the offence.
The petition raised the issue of the liability of state and state organs in the education sector when their employees violate the rights of children placed under their care. It questioned the policies that deal with teachers who abuse their positions.
WJ and LN said Amkoah had violated their rights. They accused him of defiling them and causing them physical, emotional and psychological harm and trauma.
The girls accused the state and the TSC of failing to protect their rights and those of other school going children by failing to protect them from sexual abuse by teachers. They said the state and TSC were liable for the violation of their rights by the Deputy Head Teacher.
Judge Ngugi had to decide whether sexual violence against a student amounted to a violation of the right to education and health as provided for under Article 43(1) of the Constitution and section 7 of the Children Act; whether the State and the TSC were liable for Amkoah’s actions and whether a judgment in a criminal court acquitting him would bar the constitutional court in determining constitutional rights on the same facts.
After considering the evidence in court and submissions by the parties, the court stated that Amkoah’s acquittal only meant that the case had not been proved against him beyond reasonable doubt. Such a standard of proof was not required for finding a person guilty in a disciplinary proceeding.
The judge said Amkoah had defiled the girls and the TSC found him guilty of breaching the code of conduct and ethics. The TSC not only dismissed him from employment but also struck him off the register of teachers.
At the very least, the court found that even though the acts of defilement were not proved against him in the criminal trial where proof beyond reasonable doubt was required, on the balance of probability test, the deputy headmaster had defiled the two girls.
Judge Ngugi said the right to dignity under the constitution is a continuing one.
She held that where a teacher defiled a child, leading to emotional and psychological trauma, feelings of being an outsider in society, and as somehow to blame for the acts of the perpetrator, as detailed in the girls’ counsellor’s report, that amounted to violation of the right to dignity and self-worth of the victims of abuse, which was continuous in its effects.
Judge Ngugi said the consequences of sexual violence against minors were severe and could affect their physical and emotional well-being and also expose them to the risk of contracting sexually transmitted diseases thus affecting their right to health.
In addition, the fact that their psychological well-being was affected was a violation of their right to health, which was defined as including the highest attainable standard of physical and mental well-being.
She said there is need to provide psycho-social support to children like WJ and LN
who were adversely affected by sexual abuse and who, like LN, found it difficult to continue with their education.
In considering the evidence before court, Judge Ngugi observed that that had not been done in the case of the girls, and therefore it was evident that the petitioners’ right to education, as well as their right to health had been infringed.
She said the state through TSC had, and was still taking some steps to ensure the provision of a safe and conducive learning environment for children. She also noted that the TSC circular with respect to sexual defilement by teachers which all parties acknowledged was in place, was intended to ensure the realisation of such an environment, and the launch of the website indicating the teachers who had been found guilty of abusing pupils was a further testimony of the good intentions of TSC. However, the judge held that the good intention of the state and TSC was limited as there was insufficient enforcement of the circular and the Code of Ethics.
She stated that if students and pupils were compelled by teachers to go to their houses and perform domestic chores, as the petitioners were, and in the process were subjected to sexual violence, then the state, the TSC and those in charge of institutions, such as school heads, were failing in their duty to protect children.
The judge also held that there was a failure in providing support and remedies for children who might have been subjected to sexual violence by their teachers. She observed that while prosecution and dismissal of offenders was a step in the right direction, it did not deal with the psychological trauma and stigma that the victims of such violence experienced.Further, that neither did the state nor the TSC refer to any policy or process for ensuring counselling or other psychological support for victims of sexual violence and that it appeared that the state viewed its role as limited only to punishing offenders and not addressing the needs of the child victims of such offences.
In addition, Justice Ngugi held that Jamhuri Primary School, TSC and the State were under a duty to ensure that pupils who were in educational institutions and therefore under their care, young, immature and therefore vulnerable, were protected from harm.
In particular, that they were under a duty to safeguard pupils from sexual abuse by the teachers. She stated that should they fail to do that, they would not only be liable for failing in their duty of care to the pupils, but
also would be liable for the unlawful acts of the teachers found to have sexually abused the pupils.
The court further held that public policy considerations dictated that those in charge of educational and other institutions be held strictly liable for abuses committed by those whom they have placed in charge of vulnerable groups such as minors in educational institutions. It opined that it was not enough to prosecute those found to have breached the duty of care and to have intentionally committed criminal acts against minors and that the institutions were under a duty to ensure that there was no room for abuse by those they had placed in charge of those vulnerable groups. In the circumstances, the court held the TSC and the State vicariously liable for Amkoah’s actions.
On relief, damages were the only remedy that the court could offer. In respect of the liability of the TSC and the state, such damages should not only be paid by Amkoah but also by his employer, the state through the TSC, which had failed to adequately exercise its duty of care to the two girls.
In conclusion, Justice Ngugi said the state through the TSC, must up its game with respect to protection of minors. It could not shuffle pedophiles from one school to another, and finally, be content with dismissals. It had to put in place an effective mechanism, whether through an inspectorate department within TSC or the Quality Assurance Department within the Education ministry, to ensure that no one with the propensity to abuse children was ever given the opportunity to do so. Dismissal, and even prosecution, while important, could never restore the children’s lost innocence.
The court ordered the state to pay damages of Sh2 million to WJ and Sh3 million to LN and that since the petitioners were minors aged 12 and 13, and should now be aged 16 and 17, the money will be deposited in an interest-earning account in trust for them and be used to further their education or training.
Reported by Emma Kinya Mwobobia. See commentary on page 23. Read the full judgment at http://kenyalaw.org/caselaw/cases/view/109721/