The Penal Code permits the prosecution of children older than twelve years for criminal offences, including capital offences (though children younger than eighteen yeas may not be executed if convicted or capital offences). Therefore, there is a good statutory foundation (even taking the protective provisions of the Children Act, 2001) to arrest, detain, prosecute and punish child offenders in Kenya. However, even with the proliferation of cases where child offenders are prosecuted for causing deaths in schools by setting school properties on fire, it is time to properly investigate the system that leads to the commission of these heinous offences by children as young as thirteen years old.
In official Kenya, public officials enjoy greater confidence of policy-makers than those who seek or use public services. Especially when it comes to the management of the vast network of state-funded primary and secondary schools, headmasters, headmistresses and principals (and the parents-teachers associations that ostensibly oversee these school-heads) are trusted more than the children who attend these schools or their parents. Unless they happen to be irredeemable monsters, their acts of omission or commission that lead to the deaths or injuries of children in their charge are unlikely to lead to criminal prosecutions or dismissals from service. It is almost certain that policy-makers and education-sector administrators will treat these events as anomalies, one-off accidents beyond the control of schools' administrators or PTAs. An examination of the regulatory and administrative system that led to the deaths or injuries will not be undertaken. The time is now to grapple with this problem.
Especially after the 1992 general election, long after Structural Adjustment Programmes had ushered in the era of cost-sharing and decimated public sector spending on public education and public health, the management an administration of state-funded schools became chaotic and those who can will remember the period between 1993 and 1997 as one filled with some of the worst student-discipline cases in history. Then came the disasters at Bombolulu in 1998 and Kyanguli in 2001 that have never been properly investigated with only the children accused of initiating the chains of events that led to mass deaths facing the public prosecutor. School-heads have gotten away with murder for decades.
Looking at the Moi Girls School Nairobi fire, it is almost certain that while the fire may have been started by a student (and the public prosecutor, the police service, the cabinet secretary, the school administrators, the PTA and her fellow-students all say that she is responsible), the true offenders are the Ministry's quality assurance inspectors, the school's principal and PTA, the county's emergency services and the system we have refused to reform for thirty years. There is no way that the Ministry's inspectors could have though that the manner in which the students were accommodated was safe. There is no way they could have approved the academic calendar that emphasised nerve-wracking CATs without the necessary psycho-social support for these teenage girls living in such a complex world. I doubt very much the county directors for emergency preparedness ever visited the school to certify whether it had adequate facilities for the preservation of life if an emergency occurred. They all contributed to the system that resulted in the deaths of students.
But the ones who should shoulder the blame in full are the principal and the PTA that prioritised the construction of a chapel over the safe accommodation of these young girls. If it is true that the chapel has been under construction since 2011, consuming hundreds of millions of shillings, while at the same time the principal and the PTA have ignored or neglected the plight of the girls, contemplated raising school fees to cover the construction of the chapel and not dormitories, de-emphasised psycho-social services for the girls while prioritising stress-inducing back-to-school CATs and insane reading workloads over the holidays, they must be held to account. This sick system must be reformed. If we go by what we have done since 1992, no changes will be made. A girl will have her life ruined by prosecutors and magistrates. An incompetent principal will build a church on the ashes of the dead. And a cabinet secretary and his ministry will enjoy fame for "rooting out cheating in national exams".