Churches threaten court action over schools’ property

A row has erupted between the government and religious groups over the State’s takeover of church-sponsored schools without compensating the founders.

At the centre of the row are billions of shillings worth of prime real estate that the faith-based groups acquired at the beginning of the 20th Century and money spent developing the property, which the government has now effectively acquired.

The National Council of Churches of Kenya (NCCK), the Protestant churches’ lobby, says acquisition of the property effectively began in the past decade, pushing out religious sponsors from the management and investment decisions at the schools.

The appropriations have also left the government-dominated boards of governors in control of the institutions’ prime assets such as land.

The churches, through the NCCK, are questioning the government’s right to take over schools that are sponsored by religious groups without compensating the founders. But the government has responded that it was moving in to enforce national education standards.

The list of schools that the government has since taken over includes Alliance High School, Mang’u High School, Kenya High School and Nairobi School. These are some of Kenya’s oldest and most prestigious institutions with hundreds of acres of prime land worth billions of shillings.

There have also been attempts to take over Tumu Tumu School for the Blind that is run by Presbyterian Church of East Africa (PCEA).

NCCK General Secretary Peter Karanja said the churches have petitioned President Uhuru Kenyatta over the matter but are ready to go to court if the appropriations do not stop.

The Rev Karanja said NCCK will rely on Justice Daniel Musinga’s 2011 ruling that stopped the government from taking over Parklands Arya Girls High School from the Asian community.

NCCK accuses the State of arbitrarily appropriating mission schools by simply declaring them public schools.

The declaration is then followed by the appointment of the board of governors, the posting of teachers and a notice to the founders to surrender land titles to the government. The Education Act 2012 defines a public school as an institution “maintained or assisted out of public funds.”

Involvement

Education secretary Jacob Kaimenyi said the government’s involvement in the management of the schools is simply to enforce standards, including the curriculum set at the national level.

“Ensuring that there are no disparities in the education system is the wisdom behind the takeovers,” Prof Kaimenyi said insisting that religious organisations sponsoring the schools are still allowed to appoint representatives to the board besides their continued involvement in religious education.

NCCK is, however, opposed to the government’s position arguing it has effectively relegated the faiths groups to spectator status in the education sector where their fundamental rights as private investors have been infringed.

The boards of governors, which is responsible for managing the schools and making other decisions including investments, is dominated by government appointees, representatives of local communities and other interest groups, The Rev Karanja said.

This means that while ownership of assets such as land may not have been transferred from the churches to the government, the religious groups often lose the power to use them by virtue of not controlling the decision-making organs.

“The place of the church as an investor in the education sector has been obscured to the extent that the government and other actors in the education sector regard the church with contempt,” NCCK wrote in a memorandum to the task force whose work informed the current Education Act.

“Due recognition and weight of the views of the church must be seen as those of the investor. Mutual respect between the church and the State will be critical for meaningful partnership in the provision of education in Kenya.”

Prof Kaimenyi said the Education ministry is willing to address the private investors’ concerns, including those of the churches.

The mission schools, which were mostly founded at the beginning of 20th century, have gradually ceded the role of management, including the hiring of teachers to the government since 1968.

The institutions also started receiving grants from the government and had teachers employed and paid by the Teachers Service Commission (TSC). The partnership saw many of the institutions acquire the name “sponsored schools” and the NCCK says that by declaring these institutions “public schools”, the Education Act 2012 is seeking to arbitrarily transfer the assets of the mission schools to the State.

“There is no compensation at all. It is just an arbitrary government act,” The Rev Karanja said.

NCCK says it will invoke provisions of the new Constitution in its fight for the right to own and manage private property. The Constitution grants every person “the right, either individually or in association with others, to acquire and own property of any description and in any part of Kenya.”

Foreigners are also allowed to lease land for a maximum of 99 years.

In the case pitting Arya Pratinidhi Sabha Eastern Africa against the government, Justice Musinga ruled that the constitutional right to own and manage private property cannot be overturned by any legislative act or executive orders.

“The Education Act came into operation on April 4, 1968. As at that date the petitioner (Arya) had continuously managed and controlled the school through Arya Samaj Education Board. The running of the school could not therefore be taken over by the Ministry of Education without express consent of the petitioner,” the judge ruled.

Acquisition

“Any purported takeover and acquisition of an interest in or right over the petitioner’s property by the respondent is a gross violation of the petitioner’s fundamental rights and freedoms as guaranteed by the Constitution.”

In an affidavit in defense of the government, the chief legal counsel in the Ministry of Education Judith Okungu said Arya had been receiving grants from the government for a variety of items such as furniture, repairs, and salaries for non-teaching staff.

She further stated that the government’s takeover of management of the school was not an acquisition of ownership but was “done in connivance, in consonance, in implied consent and acquiescence of the petitioner (Arya).”

Justice Musinga, however, ruled that the contributions of the government did not give it the right to run the school which was built on land belonging to the Asian religious community that had over the years objected to the government’s intrusion in the school’s affairs.

Industrialist Manu Chandaria, for instance, wrote to the then Education minister the late George Saitoti on April 24 and July 17, 2003 protesting the categorisation of Arya as a public school.

Mr Chandaria, a member of the Asian religious community, protested the move arguing that Arya owned the land, buildings and the school’s equipment.

The faith groups also accuse the government of sidelining them in the management of the schools and now want to play a bigger role in hiring of teachers and members of the boards of governors.

“The sponsor (churches) had rights and responsibilities under the previous Education Act, including appointing four members of the board, chairman, teachers and head teachers/principals. All these rights have been taken away by nationalising the schools,” The Rev Karanja said.

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