Court rejects petition to teach using indigenous languages in schools

The High Court has dismissed a petition challenging the use of English as the medium of instruction in primary schools, ruling that the Constitution does not make the use of indigenous languages compulsory in all learning contexts.

Justice Stephen Mbungi said although the Constitution encourages the use and development of indigenous languages, it does not impose an obligation on the government to use them as the medium of instruction in schools across the country.

The judge noted that Article 7(3) of the Constitution encourages the promotion and development of indigenous languages, alongside Kenyan Sign Language, Braille and other communication formats and technologies accessible to persons with disabilities.

However, he said this provision must be read alongside Article 7(2), which designates Kiswahili and English as the official languages of Kenya.

“As such, any development in the curriculum that promotes the use of a national language as medium of education cannot be faulted as opposed to the use of indigenous languages,” said Justice Mbungi.

The petition was filed by Ernest Achesa Makhambala, who argued that the government's preference for English as the medium of instruction infringes on children's rights to basic education and undermines their ability to learn effectively.

He contended that the policy violated Article 44(1) of the Constitution, which guarantees every person the right to use the language of their choice and participate in the cultural life of their choice.

He also accused the government and the Kenya Institute of Curriculum Development (KICD) of violating Sections 4(f) and 4(g) of the Basic Education Act, 2013, by denying learners meaningful language choices in education.

Mr Achesa argued that the use of English creates an unnecessary language barrier for children with limited proficiency, particularly those in rural areas and communities where indigenous languages are predominantly spoken.

He maintained that the policy was discriminatory against learners who would benefit from being taught in their mother tongues, while favouring those already proficient in English and other foreign languages.

The petitioner further faulted the government for what he described as a preference for English in the development and approval of curriculum materials.

He pointed out that most approved reading materials for pre-primary education, Grades 1 to 9 and Grades 10 and 11 are in English, despite the constitutional obligation to promote linguistic diversity.

He argued that the designation of indigenous languages as non-formal learning areas in Grades 4 to 9 was unreasonable and unconstitutional.

However, Justice Mbungi said the petitioner had failed to demonstrate how the government's curriculum policies restricted children's access to free and compulsory basic education.

The judge observed that the government has a responsibility to develop a standard curriculum applicable across the country, taking into account consultations and public participation.

He said it would be impractical to require every child in the country to be taught exclusively in their respective mother tongue, given Kenya's linguistic diversity.

“It is impracticable to expect that every child can be brought in their own mother tongue/indigenous language as the Petitioner put it,” said the court.

The judge added that the petitioner had not demonstrated that the government had introduced a policy or directive completely prohibiting the use of indigenous languages during the early stages of learning.

The court also rejected the argument that KICD's failure to approve coursebooks in indigenous languages amounted to a ban on their use in early childhood education.

“It is therefore the finding of this court that the Petitioner has not demonstrated any real infringement of the provisions of Section 4 (f) and (g) of the Basic Education Act,” he said.

Justice Mbungi further said he was not persuaded that the government had violated Article 53(1)(b) of the Constitution, which guarantees every child the right to free and compulsory basic education, or any other rights protected under Article 53.

Separate curriculum 

Mr Achesa had asked the court to declare unconstitutional the government's policy designating English as the language of instruction and national assessment from Grades 4 to 12.

Among other reliefs, he sought orders compelling the government and KICD to develop and publish separate curriculum designs for at least 30 indigenous languages and dialects within 365 days.

He also wanted the government to facilitate the use of other indigenous languages as media of instruction and assessment in both public and private schools.

Following the dismissal, Mr Achesa said he was disappointed with the outcome but intended to appeal after reviewing the full judgment.

“More importantly, we firmly believe the Court got this wrong. We are awaiting the full judgment and intend to challenge the decision at the Court of Appeal after examining the Court's reasoning,” he said.

He maintained that the education system should prioritise the languages children understand rather than perpetuate what he described as colonial traditions and institutional convenience.

“For too long, our education system has placed colonial traditions and institutional convenience above the realities of how children learn. We continue to insist that children should be taught in languages they understand, whether Kiswahili or their indigenous mother tongues, while progressively developing proficiency in English and other languages,” he said.

 Follow our WhatsApp channel for breaking news updates and more stories like this.