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The rule of law is the legal principle that provides equity and openness for all individuals, communities and governments.
Under the rule of law, everyone enjoys the benefit of being treated equally and should be accountable in the event there is a contravention of the same. No one person, community, society, organisation or government is more important before the law than another. And so, it is important to be regulated by law.
The concept of societies and communities living and cohabiting within the principle of law, whether formal or non-formal, existed from early formation of the old African leadership structures. The colonists wanted equality and they wanted laws to govern, not kings and queens as was the norm in other countries. That is why the rule of modern laws was established in Kenya for the people.
Article 1 (1) of the Kenya constitution recognises that all sovereign power belongs to the people of Kenya and shall be exercised only in accordance with the established constitution. The law therefore can function towards its intentions, and as society, environment, technology, and culture change, there is a need to also change the law to conform to the changing times. Society does not remain static so the legal system and the laws it produces need to be relevant in order to be effective. Laws should be responsive to societal, economic, technological, moral and political change by evolving as the changes emerge.
Employment laws are very critical in any arrangements of work and workers. This is because it is through work that society is able to realise other potentials that spur economic growth. Due to the sensitivity of work and the work environment, there are several sets of laws both locally, regionally and globally that generate the wisdom that guides the laws of work. Article 2 (5) (6) recognises all international laws that are consistent with the laws of our land.
The Teachers Service Commission, an independent commission under Article 237 is proposing to amend the TSC Act 2012 by arrogating itself more powers than what the constitution stipulates, deleting critical sections of the principal act that can only be done away with if the main constitution is amended, introducing new ideas while quoting the Kenya Constitution in vain.
A close examination of affected areas in the changes by the commission are; The amendment proposes basic education to start from primary, junior secondary, senior secondary, and teacher training institutions. Basic education begins from ECDE. Moreover, the envisioned education reforms capture basic education as PP1 to grade 9 as Comprehensive Schools, then Senior School.
TSC proposes determining remuneration of teachers without involving Unions and the advice of SRC, which violates Articles 230 and 41 of the Kenya Constitution. If this happens, where will the place of unions be and where will the structure and frameworks of Collective Bargaining Agreement, which are internationally recognised be? If the employer will be deciding salaries without due observance of the constitutional provisions of both the employment Acts and the Labour Relations Act, then teachers may forever be disadvantaged.
The teachers' employer proposes to discipline teachers without being bound by strict rules of evidence as envisioned by Article 50 of the Kenya Constitution on fair hearing and Article 47 on Fair Administrative Action. This is an affront to the basic and fundamental freedoms of humanity. The commission goes on to propose that it will collect data on teachers from all sources and manage the data according to its own rules, which violates both the Data Protection Act 2019 and Article 31 of the Kenyan Constitution. The constitution guarantees privacy to homes, property, information and communication.
TSC has been disciplining teachers, hearing their appeals, and therefore making it all unto themselves. This has been, and continues to be a grey area which unions expected would be addressed in the reforms. There is a need to have a Joint TSC/KNUT consultative committee on discipline that shall be identifying cases that deserve review, and then an independent appeals tribunal be formed to hear and consider them.
It is only then that teachers will access fairness and justice. Then TSC proposes to establish new staffing norms that are not clear, which may re-introduce aspects such as delocalisation that are punitive and abuse of Affirmative Action. TSC proposes to regulate its own practices and procedures, which is unconstitutional as it goes against Article 249 (2) of the constitution.
The employer proposes to have poor performance of duty as one of the disciplinary offenses. It has not defined what poor performance of duty is and what its punishment should be. Consequently, employers are supposed to identify gaps in performance of their workers and then find ways of addressing them, not using the same to frustrate teachers further.
The unions opine that for the bill to be teacher-responsive, the employer must observe the constitutional principles of democracy and participation of the people under Articles 1(2), 10(2), 35, 184(1)(c), 196,201(a) and 232(1)(d) of the Constitution. KNUT is willing and ready to engage in these areas and many more that will make the Bill better for teachers. The law belongs to the people not otherwise.
