Abstract:
The promulgation of the Constitution of Kenya, 2010 (CoK), particularly Chapter IV which encompasses the Bill of Rights, has had far reaching effects on the Kenyan populous as a whole. Children have been brought under the ambit of the CoK by being recognised as persons capable of having the right holder status. Crucially children have found constitutional recognition of the right to education and the best interest of the child doctrine. Almost a decade later and schools have shook these and other rights to their core. The main quasi-legislation that has flown in the face of the rights of children studying in schools is the rules and regulations. These rules and regulations reek of illegality. Despite these laws being void by virtue of Article 2(4) of the CoK as they are inconsistent with the Constitution the position on the ground is somewhat brutal. Students are subjected to disciplinary hearings with no regard to substantive or procedural rights contained in the CoK. This includes the adherence to the principles of natural justice when taking administrative action including the right to a fair hearing.
The punishments meted out to these students are also tainted with illegality. Corporal punishment for instance has long been banned but teachers still employ it mercilessly. Even legislation has failed students in the domain of alternative punishments as the only prescribed punishment is suspension. This has led to the adoption of zero-tolerance policies by schools which is an abuse of its powers. With dress-codes introduced into the fray the matter at hand becomes even more problematic. Female students are not allowed to wear hijabs in schools despite the Mohamed Fugicha judgement outlawing such practices. The study ultimately re-aligns school rules and regulations with the CoK