Why court blocked cabinet move to scrap of Nomadic Education Council

The High Court has declared unconstitutional a Cabinet decision to dissolve the National Council for Nomadic Education in Kenya (NACONEK), terming it discriminatory and a threat to over 1.5 million children's right to education.

In a judgment delivered by Justice Francis Rayola Olel faulted the Cabinet’s January 21, 2025 resolution to scrap NACONEK and an earlier 100 per cent budget cut, saying the move unlawfully dismantled a statutory affirmative action body created to protect learners in arid, marginalised and informal settlement areas in 14 counties across the country. 

“The cabinet resolution to dissolve the National Council for Nomadic Education in Kenya (NACONEK) as contained in the circular dated January 21, 2025 violates provisions Articles 10, 21, 24, 27, 28, 43, 53, 55, and 56 of the Constitution of Kenya, 2010,” the judge held.

He further declared that the decision also violates Article 28 of the Convention on the Rights of Children and Article 13 of the International Covenant on Economic, Social and Cultural Rights on the right to education of marginalized children. 

Justice Olel agreed with petitioners Dr Chris Galgallo Ali and Arthur Topos that dissolving NACONEK and cutting its budget to zero amounted to targeting marginalised children in Arid and Semi-Arid Lands(ASAL) regions, pockets of poverty and urban informal settlements.

He described the Cabinet move as both discriminatory and retrogressive and issues a mandatory order for reinstatement of NACONEK’s budget.

“A declaration be and is hereby issued that the cabinet resolution to dissolve the National Council for Nomadic Education in Kenya (NACONEK)… is a retrogressive measure that is discriminatory for reversing the affirmative action measure already in place, without justification, and thus runs contrary to the provisions of Articles 21 and 27 of the Constitution,” the court ruled.

The petitioners, members of minority and pastoral communities, told the court they had moved to court in public interest and on behalf of Hunter and Gatherer Forum of Kenya (HUGAFO–K), whose membership is drawn from 14 ASAL counties. 

The Pastoralist Parliamentary Group (PPG), bringing together MPs and senators from pastoralist counties, was listed as an interested party.

They argued that NACONEK was established by Section 94(1) of the Basic Education Act, 2013 as an affirmative action institution to promote nomadic education, and that scrapping it through a Cabinet circular unlawfully removed protections designed for historically disadvantaged learners.

At the centre of the court’s decision was the impact of the Cabinet decision on children.

The judge noted that the National Treasury’s March 27, 2024 circular on reforms in state corporations and the subsequent Cabinet memo were not preceded by any child-rights impact assessment despite their far-reaching implications.

“A declaration be and is hereby issued that the 2024 decision to effect a 100 per cent budget cut on NACONEK and the 2025 decision to dissolve the National Council for Nomadic Education was not preceded by any child rights impact assessments… Thus, the said decisions violate Article 53 and 56 of the Constitution, Section 8 of the Children’s Act, and the Child Rights Convention,” Justice Olel said.

He stressed that education is not only a fundamental right in itself but also a gateway right for poor and marginalised communities.

“Like all other human rights facets, the right to education is sacred and imposes three types or levels of obligations on the state; the obligation to respect, protect and fulfil. In turn the obligation to fulfil incorporates an obligation to facilitate and provide,” the judge said, citing Articles 43(1)(f), 53(1)(b) and 56(b) of the Constitution.

He observed that by scrapping NACONEK, the State was effectively dismantling an affirmative action programme that had been specifically designed to ensure that children from nomadic, poor and informal settlement areas are not left behind.

The court was also categorical that the Executive had overstepped its mandate by using an administrative circular to undo an institution created by Parliament.

“In short, by an administrative fiat, the respondents have dismantled a statutory creature, which act violates the law as an executive cabinet circular cannot trump over an Act of Parliament that created the said organ,” Justice Olel said.

He added that the process failed the constitutional test on public participation and fair administrative action.

“The decision made was in breach of Article 10 of the Constitution as no participation was carried out to determine whether abolishing NACONEK would save the government money, whether it was necessary considering less restrictive options such as rationalization or merger and most importantly balancing the rights of over 1.5 million school going children which would be affected by scrapping of NACONEK,” he noted.

The judge also pointed out that NACONEK and its stakeholders were not invited to the National Treasury’s May 2024 stakeholder engagements, despite being directly affected, contrary to the Fair Administrative Action Act, 2015.

The Cabinet Secretary for Education, the Cabinet Secretary for National Treasury and Economic Development, and the Attorney-General did not enter appearance or file any response in the case even through the Attorney General.

“The respondents did not file any responses to the Petition and they are deemed to have conceded the Petition,” Justice Olel stated.

He said the court proceeded to determine the matter on its merits under the Constitution of Kenya, Protection of Rights and Fundamental Freedoms, Practice and Procedure Rules, 2013, since the petitioners’ claims were uncontroverted.

Invoking Articles 20 and 23 of the Constitution on the enforcement of the Bill of Rights, the court issued a raft of declaratory, prohibitory and mandatory orders to protect children’s right to education and preserve NACONEK.

" A declaration that the Cabinet resolution to dissolve NACONEK as contained in the circular dated January 21, 2025 is unconstitutional and invalid," Justice Olel ordered

" A declaration that the zero-budget decision in 2024 and the dissolution decision in 2025 are unlawful for lack of child-rights impact assessment," he added.

The court then issued a prohibitory order “barring the respondents, including the Cabinet and their agents from dissolving or acting on the decision of January 21,2025, to dissolve the National Council for Nomadic Education in Kenya (NACONEK). 

 In addition, an order of mandamus was granted directing the respondents to take legislative, policy and other affirmative action measures identified in the Presidential Working Party report on Education Reforms.