, NAIROBI, Kenya, Sep 15 – The Employment and Labour Relations Court has directed the Teachers Service Commission (TSC) to stop issuing threats to striking teachers pending the determination of the petition on the legality of their mass action on Friday next week.
While issuing the directions on Tuesday evening, Justice Nelson Abuodha also warned teachers against holding demonstrations before the ruling as this may worsen the already volatile situation.
The directions came in the wake of submissions by both TSC and the Kenya National Union of Teachers (KNUT) union on the petition where arguments were made on the legality of the strike.
KNUT lawyer Paul Muite contended that the application should be thrown out since it is an abuse of the court process by refusing to obey a court order to pay teachers a 50 to 60 percent pay increase.
“A person or institution like TSC, who disregards court orders, cannot be allowed to access the seat of justice. Every one of us is a neighbour of a teacher. If you force these teachers to go back to schools before they are paid, Wanjiku will be asking them, have you been paid? If the answer will be no, the perception of common Kenyans on rule of law in this country will be affected negatively,” he stated.
He argued that the commission was seeking to override the decision by Justice Nduma Nderi who ruled in favour of teachers by using the same court which had similar jurisdiction.
During the hearing, KNUT produced video recording evidence indicating that TSC made it clear that it will not give in to demands of teachers which were backed by a court order.
The union was put to task over the source of the video and its relevance but after hearing both sides, Justice Abuodha ruled that the video evidence was admissible.
Lawyer Ahmednasir Abdullahi who was also appearing for KNUT opined that the petition and conduct of TSC left a lot to be desired since the commission ignored the rule of law.
He pointed out that the petition called into question the integrity of the court and intimated that it might be a collateral attack on the earlier ruling.
TSC lawyer Geoffrey Obura on the other hand sought a declaration from the court that the ongoing strike is a violation of fundamental rights of the commission and students in public schools.
He contended that the strike is unjustified and called for it to be declared illegal. He also sought a prohibitory injunction be issued against KNUT and KUPPET and their Secretary Generals be restrained from inciting teachers.
“The right to strike must be balanced against other fundamental rights. We cannot say that here in Kenya, we can go on strike as and when we please. The right procedure was not followed; the right to education outweighs the monetary demands of the teachers,” he stated.
The petition was heard as the teachers strike progresses well on to the third week.
Both TSC and KNUT had maintained a tough stance on the impasse with the commission stating that it will withhold the September salary for teachers on strike.
KNUT had responded by indicating that teachers are willing to lose their salaries in the fight for their rights and vowed they will not to go back to class until the government increases their salaries.
The union’s Secretary General Wilson Sossion had stated that the announcement by TSC not to pay teachers for the month of September will only harden their resolve.