Kenya: Teacher’s Pay takes different way


Suspension for 90 days is the key word. Friday 25 September 2015. This is the day when Contempt of Court orders reigned above the rights for better pay.
Today’s Industrial Court ruling on teachers salaries has come as a big blow to teachers and an endorsement to Contempt of Court Orders by TSC. TSC and the Government have been desperately waiting for this verdict.

The Court is jam-packed. It is only the Judge who is yet to arrive at the Court room.

: The Judge is speaking. He goes through the submissions of both parties in brief. The Judge says TSC’s lawyers requested the Court to determine;

  • Whether the court has jurisdiction over the case.
  • Whether the case raises Constitutional issues.
  • Whether the rights to strike are absolute or whether they can be limited.
  • Whether there is locus to bring the case on behalf of children.

: The Judge is still going through the submissions that were made by parties (TSC, KNUT and KUPPET) last week.

: The Judge quotes TSC’s submission that the teachers’ right to strike is outweighed by the children’s right to education.

: The Judge goes through the submissions by Mr. Muite. One of them is that if the current strike is declared illegal, the Court, as submitted by Muite, will be in support of TSC’s contempt of Court.

: You can watch the proceedings live via KTN2 (KTN News).

: The Judge goes through TSC’s submissions on the issue of locus where TSC submitted that it can petition on behalf of children.

: The Judge goes through Ahmednassir’s submissions on the issue that TSC lacks legal persona and hence cannot litigate upon the Bill of Rights. He also goes through the Lawyer’s submission that no single empirical evidence has been presented by TSC that it has been subjected to servitude.

: The Judge is still going through the submissions that were made by the lawyers. He has not made any ruling so far.

: The Judge ends his briefs on the submissions.

Rulings
: The Judge says on the issue of jurisdiction, he says the Court does have jurisdiction.

: On the constitutional issues, he says the Case raises constitutional issues. He says the Case touches fundamental rights and hence makes it to raise Constitutional Issues. KNUT had told the

: On the issue of the. The Judge says the Court found that the current case is not an issue that was decided on 30th June 2015. He says the 30 June ruling did not state how the 50-60% will be implemented.

: On whether the right to strike is absolute. The Judge says the right is not absolute.

: The Judge says the Court observes that the proposal of 50-60% was based on proposals by TSC and hence the failure to pay is provocative and hence justified their right to go on strike. He says the right is a primary right. He says the issue of issuing a strike notice is superfluous under the given circumstances.

: The Judge address the issue of using the strike to enforce Court orders. He says a strike cannot be an enforcement measure of Court order. He says 30 June ruling did not prohibited teachers from going on strike.

He says that there is nothing wrong in the teachers going on strike because the Constitution gives teachers a right to agitate for better pay.

:  On the issue of TSC bring a petition on behalf of children. The Judge says that it may be said that TSC being a Constitutional Commission, it is mandated to recruit and deploy teachers and advise the Government on issue of education. He says that TSC has the Constitutional mandate to act in public interest and in the interest of children.

: The Judge says the case is weighty because on one hand, it wants teachers forced back to class without extra pay. He says, however, that respect to Court Orders is the sovereign will of the Kenyan people.

The Judge says the Executive and the Legislature to be the morticians of the teachers’ pay.

: Orders. The following are the orders of the Judge

  • He says that in the interest of children, the strike is suspended for 90 days.
  • That a reconciliation committee be constituted within 30 days.
  • TSC not to victimize any teacher.
  • Each party to meet the cost of the petition.

KUPPET’s lawyer tells the Court that they need clarification on the issue of closure/ reopening of schools.

The AG thanks the Court for the Judgement. The AG says that the Government will issue directions on the opening of schools before end of business today. The Judge orders the parties to appear before him at 2:30 Pm on Monday 28 September in order to determine when schools will be reopened.

Analysis of the Court’s Orders
The orders to have the strike suspended is a big blow for teachers. It is a win for the Government and TSC. Teachers will go back to class without the 50-60% pay. There is a 90-days window now for teachers to know whether they will ever be paid. This issue is likely to spill over to 2016. While the Judge did not declare the strike as illegal, the bottom line is that teachers will go back to class without the 50-60% pay hike. This is a tragedy that the media is reporting as, “Big win for teachers.”

[Recap] The following are the orders of the Judge

  • The strike is suspended for 90 days and that teachers resume duty immediately.
  • That a reconciliation committee be constituted within 30 days.
  • TSC not to victimize any teacher.

On Monday 28 September 2015, TSC, KNUT and KUPPET will meet again at the Court at 2:30 PM for further directions including the reopening of schools. The 90 days will elapse on 24 December 2015 (A day before Christmas).

What Next After 90 Days?
The Judge ordered that if after 90 days no solution will have been arrived at then any of the parties is free to take any lawful action. This 90 day provision is the stroke of death on the 50-60% salary. Where is the guarantee that TSC will ever turn up for any meeting within the 90 days? TSC can capitalize on this 90-days period by failing to attend any meeting. TSC can as well attend the meetings and just dance like a rocking chair with no solutions at hand

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Posted on September 25, 2015, in Categorized. Bookmark the permalink. Leave a comment.

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