Why it is not yet a deal for teachers in push for salary hike

The Kenya National Union of Teachers (KNUT) win for a significant pay rise could take a surprise turn if a fresh appeal by the government is granted.

Sources within government told The Standard on Saturday that there is a plan to file a constitutional application in the Supreme Court to challenge the decision of the Court of Appeal’s refusal to stay the orders of the High Court pending the determination of the appeal filed by the government.

The Supreme Court similarly refused to stay orders on grounds that it does not have the jurisdiction to hear the matter unless an appeal case was properly before it.

“We shall definitely challenge this. The decision essentially takes away the right of the defendant to seek an appeal in a higher court on a decision made by the lower court. If this is allowed to continue, then the whole purpose of having an appeal in the Court of Appeal would be defeated. How would the government recover in terms of interruptions on its programmes and money spent to cater for teachers’ increments in the meantime should the appeal in the Court of Appeal be successful?” posed a source who sought anonymity.

Should the Supreme Court rule on the application, then the legal duel between the Teachers Service Commission (TSC) and the the teachers unions may be far from over.

“Besides, the Salaries and Remunerations Commission’s constitutional mandate was bypassed in these negotiations. Basically the point is that the government appeal is active in the Court of Appeal. It has not even been heard. It is like the court telling somebody who has stolen and faked documents of land that belongs to you to continue constructions on that land even if the matter is in court so that should the court’s decision suggest otherwise, he can be asked to demolish.”

“Whereas it may be excusable for your clients’ members to chest thump and engage in acts of public rejoicing, we expect you as counsel to exercise restraint knowing that the judgement you refer to is subject to a merited Appeal,” TSC said in response to demands for pay as had been directed by the lower courts.

This means celebrations by at least 280,000 teachers may be cut short depending on the ruling of the Court of Appeal and the likelihood that the same could end up before the Supreme Court again.

However, there are two fronts and a major twist to the case filed in the second highest court in the land. There will be a winner and a loser in the case and as such the increased pay might be grounded or the court will order that the same should continue.

A salary comparative analysis shows that teachers are already earning slightly higher than other public servants in the same job groups. The increment as directed by the courts is likely to attract protests from other civil servants. 

As from August 1, the lowest paid teacher was to pocket Sh21,304 up from Sh16,692, while the highest paid teacher was to get Sh144,928, up from Sh109,089.

This translates to a 15 per cent increment for the lowest paid teacher and 12.5 per cent for the highest paid.

But TSC had contested the increment arguing it would raise the monthly wage bill by Sh4.96 billion and the Government had indicated there was no money. Currently, the monthly wage bill stands at Sh9.92 billion.

The commission will now have to raise the Sh4.96 billion before the end of this month, as the unions demanded, or else they will have their application for temporary orders in the appellate court dismissed too for failure to obey orders.

The Lydia Nzomo led commission had been given a temporary reprieve by Appellate judges Jamilla Mohamed, Mohamed Warsame and Sankale ole Kantai who suspended payment of Sh37 billion in arrears as the Employment and Labour Relations Court had backdated the new pay to 2013. If the arrears had been upheld, Treasury would have been left grappling with a Sh50 billion budget hole.

Justices Jamilla, Warsame and Kantai after hearing the case might also rule that the Sh4.96 billion plus the spill overs of the months that the case will be heard be refunded to the commission if it proves that the Labour Court erred in law when it ordered that teachers be paid the new wages.

It follows then that the cloud surrounding the teachers' salaries increment case is not yet over and only the scales of justice will determine the matter.