Row between Teachers Service Commission and ministry of education rages on

Mr. Ado Ayoma teaching class seven pupils of Nyandiwa Primary school in Siaya County where pupils study in makeshift classrooms made reeds.The school has a population of 680 pupils.PIC BY COLLINS ODUOR

A vicious battle that could wrestle management of schools and 280,000 tutors from the teachers' employer is raging even as unions threaten to call a strike over allowances and pay.

Governors have also been sucked into the fray over their hiring of early childhood development education (ECDE) teachers, a move opposed by both the Ministry of Education and the Teachers Service Commission (TSC).

And Education Cabinet Secretary Jacob Kaimenyi appears to have impetus from the Commission for the Implementation of the Constitution (CIC) chairman Charles Nyachae in his war with the Teachers Service Commission (TSC).

Mr Nyachae has weighed in on the side of the CS with an advisory opinion backing Prof Kaimenyi's plans to amend the TSC Act and put head teachers under the direct control of the Ministry of Education. He has also backed the stand that governors have no business hiring EDCE teachers.

The Council of Governors said counties have so far hired some 50,000 nursery school teachers, translating to 1,000 per county.

The ministry's directive on head teachers is contained in its proposed operational guidelines for Boards of Managements (BoM). If effected, TSC would lose control of the senior teachers who are currently tasked with the responsibility of managing schools.

TSC argues that as the teachers' employer and an independent commission, it has the exclusive mandate to register, recruit, assign, promote and discipline all teachers.

It has dismissed the ministry's and CIC's claim that this role cannot be left to TSC alone.

The CS wants to issue all school heads with agency letters and place secondary school head teachers on five-year contracts, effectively placing them at the mercy of the ministry.

In addition, he proposes that no head teacher should serve in a school for more than two terms, proposals the TSC and teachers' unions interpret as intended to whittle down their powers.

The fight between TSC and Education ministry is heating up at a time the teachers' employer is in talks with unions demanding hefty pay increments. TSC is expected to present a counter offer to the unions on September 30.

Nyachae's advisory is likely to fuel the turf wars between TSC, Kaimenyi and governors. CIC claims the Constitution gives the national government, through the Ministry of Education, responsibility over schools.

"...CIC wishes to bring to your attention some other provisions in the TSC Act 2012 and the Basic Education Act 2012, which are in conflict with the letter and spirit of the Constitution," reads the letter signed by Elizabeth Muli on behalf of Nyachae.

But TSC, in a letter to the Attorney General, said it was the only institution that could terminate teachers' contracts, review the standards of education and train teachers.

"We also advise the national government on matters relating to the teaching profession," reads the letter to AG Githu Muigai.

The ministry is seeking more control over school heads, contrary to the constitutional provision that tasks TSC with the exclusive mandate of recruiting, remunerating and disciplining all Government-employed teachers.

Some weeks ago, the ministry and TSC engaged in a vicious fight that saw senior officials of the teachers' employer boycott a meeting convened by the ministry.

Later, Kaimenyi stormed the TSC offices in Upper Hill and met commissioners in the absence of the Secretary Gabriel Lengoiboni.

The CIC document is titled 'Legal interpretation and advice on the conflicting functions of Ministry of Education Science and Technology and its agencies.'

Nyachae was responding to matters requested by the National Education Board (NEB) chairperson Erustus Kiugu.

In his letter seen by The Standard, Mr Kiugu argued that matters of teachers' discipline must not be left to TSC alone, and cites Section 18 of the Basic Education Act that spells out the functions of the County Education Boards (CEBs).

He also disputes the functions of TSC on quality assurance and standards and capacity-building roles.

In his letter to the AG, Lengoiboni said "the Commission is mandated by the Constitution and Statute to deal with all issues of teacher management nationally."

He added: "The Commission, as an employer, has the inherent mandate to ensure that teachers maintain and continuously improve skills relevant in the teaching profession through capacity building."

Nyachae, however, interprets the law to mean that TSC has no mandate to own capacity building and quality assurance functions.

CIC argues that the Government is mandated to set education policy, standards and curricula for all levels of education and training.

It says the Kenya Institute of Curriculum Development (KICD) Act 2012 mandates the institute to develop, review and approve programmes, curricula and support materials that meet international standards for teachers' education and training.

"TSC is only mandated to review services as stipulated in Article 237(3)(a) of the Constitution...in view of the above, CIC finds that Section 35(2) of the TSC Act is unconstitutional on the basis that Article 237 does not mandate TSC to conduct any form of capacity building," reads the letter.

On quality assurance and standards, Nyachae says the Education Standards and Quality Assurance Council  is mandated to maintain standards of basic education and training while TSC can only ensure that teachers acquire and hold standards expected of them.

"For purposes of Article 237(3)(a) of the Constitution, we are of the view that TSC cannot be involved in quality assurance. TSC may only check a teacher's quality status as part of its research," reads the letter.

On governors, Nyachae says that whereas the Fourth Schedule gives responsibility of pre-primary education to county governments, TSC is expected to provide its services at both national and county levels.

"We are therefore of the opinion that TSC is the correct institution to register trained teachers and consequently recruit and employ trained teachers to the level of institution for which services of trained teachers is required."

Council of Governors chairman Isaac Ruto faulted the argument and noted that the Constitution, under the Fourth Schedule part 2(9), cites pre-primary education and childcare facilities as some of the devolved services.

Mr Ruto said if that is what the national government wants, then it should recruit the nursery school teachers. "We have so far hired some 50,000 teachers translating to 1,000 per county. Remember that both primary and secondary schools have a teacher shortage, so what is CIC telling us?" he said.

"This is more reason why we need a referendum to handle such circumstances. But we are not keen to recruit teachers anyway. We will manage infrastructure," he added.

The Kenya National Union of Teachers (Knut) yesterday said it read mischief in the development and warned that the move would provoke teachers.

"TSC is an independent commission and any attempt to water down its functions would be a recipe for chaos in the education sector," said Knut Secretary General Wilson Sossion.

"We are demanding an immediate meeting between TSC, ministry and CIC to deliberate over these issues. We want a clear separation of roles and don't want intrusion in the affairs of  independent commissions," he added.

Sources familiar with the development told The Standard the ministry is laying ground to control teachers.