The Harmonized Draft Constitution of Kenya (2009) decreed in Article 9:1-4 Kiswahili as a national language, and the official languages as Kiswahili and English. As for the mother tongue (MT), the state is compelled to respect, promote and protect the diversity of the language of the people of Kenya, and to promote the development and use of indigenous language; also promote and develop the use of Braille and other modes of communication for persons with visual and other impairment. But the discretionary language used in Article 9 on the role of the state in promotion of Indigenous language is worrisome because of the discretionary language employed by the literal construction of the Article.

The Harmonized Draft has recognized culture as one of human right in the Bill of Rights, the major identifier of a given culture in any society is the language, the interpretation of Article 68(1) gives a leeway to the use of Indigenous language but if this is read in tandem with Article 9(1) there is a clear constitutional crisis in that Kiswahili and English are the official languages yet Indigenous languages are to be uses as a milieu for communication, Article 68(1)should further succinctly outline when and under which circumstances indigenous languages may be used as a medium for communication this should include the school as outlined in the Ministry Of Education Language Policy . The Article should also be accompanied with a schedule that shall give the names of the indigenous languages in Kenya.

Prohibiting the use MT in the classroom, to some extent, deny a class the benefit from individual children’s experience and knowledge is unconstitutional since it is contravenes the right to language and culture by dint of Article 68. Furthermore, you limit children’s abilities and talents. Such destruction of home language and culture in classroom is counter-productive for a nation that has access to multilingual and multicultural resources is advantaged in its ability to play an important social and economic role on the world stage.

“To squander the linguistic resources of the nation by discouraging children from developing their mother tongues is quite simply unintelligent from the point of view of national self-interest and also represents a violation of the rights of the child” (Jim Cummins University of Toronto, 2003)

Children should be allowed to develop their abilities in a multilingual environment throughout their primary school years. Indeed, the home language is medium of instruction in lower primary according to the policy of Kenya’s ministry. There is evidence that children gain a deeper understanding of language and how to use it effectively through MT. They have more practice in processing language, especially when they develop literacy, and are able to compare and contrast the ways in which languages work. Every child has the right to have their MT recognized and promoted within the school. To reject a child’s language in the classroom is to reject the child, and once they feel rejection, they are unlikely to participate actively and confidently in class activities.