In a case that was brought to table in The Court of Appeal , the judges have come to a conclusion that the Teachers Service Commission (TSC) is ought to bear the responsibility of headteachers who decide to defile their students.
The decision that was arrived at requires TSC to pay two minors Kenyan shillings 5 million as compensation, Appeal Court judges Roselyn Nambuye, Martha Koome and Fatuma Sichale declined to set aside the award by the High Court, they hence said that the minors were supposed to be compensated because they are guaranteed a good and safe learning environment as students.
The three judges agreed with Justice Mumbi Ngugi’s finding that by TSC entrusting a school head teacher 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.
In that same way, any learner who will or has been defiled by their teacher, should seek for compensation by reporting the case to court.
“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.
“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 Nakuru parents who their daughters were in this case defiled, are still in argument saying that the majority learners are most likely to be defiled by their teachers if no proper action is going to be taken.
The parents were aggrieved by the fact that their two daughters were victims of defilement by their deputy head teacher who ended up being set free.
According to lawyer John Chigiti, the number of girls who have always reported to have been defiled by teachers since 2010 has gone up. This is because there is always no proper action taken against the teachers who perform the action despite the commission having structures and laws to govern how the the two parties should interact during school hours.
Justice Ngugi agreed with Mr Chigiti’s submissions that the teachers’ employer had not done enough to tame the menace. “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,” said the judge.
“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
To help the students heal and hence continue with their studies, they are to 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.
The judge argued that TSC should compensate the two defiled girls. The funds are to be spent on their education until they finish with tertiary learning.
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