A petition has been filed at the High Court challenging the legal validity of using English as the primary language of instruction in schools.
Filed on October 23, the petition primarily challenges the Ministry of Education's decision to designate English as the medium of instruction for Grades 4 to 12, and categorise Indigenous Languages Activities for Grades 4 to 9 as "non-formal programmes".
The petition filed by Ernest Achesa Makhambala argues that this classification devalues indigenous languages and undermines Kenya’s cultural identity and thus should be declared unconstitutional.
“This is fundamentally a case about cultural dignity and educational justice. No child should be excluded from learning because the language of teaching is foreign to them,” Makhambala argued.
“By sidelining indigenous languages, the State is failing to uphold the Constitution’s vision of cultural diversity and inclusive education.”
The Cabinet Secretary for Education, the Kenya Institute of Curriculum Development (KICD) and the Attorney General have been named as the respondents in the petition.
KICD is accused of acting unreasonably and unlawfully in the development and approval of curriculum designs and learning materials for early childhood to Grade 11.
Arguing that the decision is unconstitutional, citing Article 53, which guarantees the right to education for every Kenyan. He also pointed to Article 44, which outlines language and cultural rights and Articles 7 and 11, which highlight the recognition of language as a pillar of culture and national identity.
He also cited Article 47 outlining the right to fair administrative action, specifically pointing out Sections 4(f) and 4(g) of the Basic Education Act, 2013, which protect children’s linguistic rights in education.
The petitioner further highlighted prior policies and rulings, like the Gachathi Report published by the Committee on Educational Objectives and Policies in 1976.
The report recommended the language of instruction to be the predominant language spoken in the schools' catchment area for the first three years of primary education, and then to introduce English as a subject from Primary I and to make it supersede the predominant local language as the medium of instruction in Primary 4.
More recently, in 2012, the Task Force on the Re-Alignment of the Education Sector to the Constitution of Kenya (2010) published a report that reiterated the recommendations of the Gachathi Report.
"National and County Education Boards shall enforce the use of the two official languages, Kiswahili and English, both in and out of school. The language of the catchment area (Mother Tongue) shall be used for childcare, ECDE and in the education of Lower Primary children (0-8 years)," the recommendation read.
Makhambala further quoted the former Education Cabinet Secretary Jacob Kaimenyi, who in 2014 noted that children are more likely to grasp new concepts at the lower primary level if they are taught in a language they are already familiar with, like their mother tongue.
Additionally, he highlighted that the KICD had declared English as the main language of education, information, trade, diplomacy and social networking, and thus the medium of instruction in schools from Grade Four.
In 2024, however, it published revised curriculum designs for the English Language Activities, acknowledging that English is learnt as a second language and functions both as an official language and the medium of instruction from Grade Four.
As such, the petitioner is seeking, among others, an order to declare the ministry’s decision to develop English-only curriculum designs for non-language subjects in early childhood education and Grades 1–3, and its failure to develop corresponding support materials to facilitate instruction in indigenous languages, as well as the failure to create distinct curriculum designs for each indigenous language subject from Grades 1 to 11, as unlawful, unreasonable, and unconstitutional.
The respondents have been given 21 days upon service by the petitioner to respond to the petition. The interparty hearing will be heard on January 21, 2025.
