By Charles Kanjama
The Labour Relations Act 2007 is the law that deals with industrial action in Kenya, subject to the Constitution, which is the supreme law. The Constitution declares that every worker has the right to participate in trade union activities, including the right to go on strike (art 41).
The right to strike is limited for members of the disciplinary forces (art 24(5)). Like most other fundamental rights, it may also be limited by law, but only to the extent that the limitation is reasonable and justifiable in an open and democratic society (art 25(1)).
However, there are a few fundamental rights that the Constitution deems absolute and not capable of limitation. These include the right to a fair trial, and freedom from slavery or servitude (art 25). Freedom from servitude implies the related right not to be required to perform forced labour (art 30).
From these provisions, it is clear teachers cannot be compelled to go to class and teach, neither by being frog-marched to schools, nor by being criminalised for going on strike, nor by being held in contempt of court for failure to teach. However, a teacher who fails or refuses to teach will not be protected from adverse contractual action, including dismissal or suspension.
This appears to conflict with the right to education, for both children (art 53(1)(b)) and others (art 43(1)(f)). But the obvious answer is that the right to education does not mean a duty to any specific person, save the primary duty to parents (art 53(1)(e)) and the secondary duty to government, to provide that education. The government’s duty to educate is fulfilled through the Teachers Service Commission (TSC, art 237).
TSC is the teachers’ employer, not the Public Service Commission nor the Salaries and Remuneration Commission (SRC). TSC also has the legal mandate to fix the remuneration of teachers. In contrast, SRC is mandated only to fix salaries of State officers (art 230(4)). In regard to public officers, who include teachers, SRC’s role is only “to advise the national and county governments on [their] remuneration and benefits.”
The idea that a deal between TSC and the teachers’ unions becomes nullified because of the advisory role of SRC is absurd, and offends various constitutional principles, including constitutionalism, good governance and the teleological principle (art 259(1)). The equally novel idea that teachers cannot go on strike due to the general right of children to education also contradicts the constitution harmonisation principle.
This does not mean that teachers can ignore valid court orders, as doing so would fly in the face of an even more basic principle: the supremacy of the Constitution (art 2(1)), and the related duties to respect the Constitution (art 3(1)), including the delegated sovereign power of the Judiciary (art 1(3)(c), 162(2)(a)). The remedy for a party who feels the court has erred in applying the law is to appeal the impugned decision, not to flagrantly disobey it. Disobeying court orders is a recipe for anarchy.
From this background, the Labour Relations Act distinguishes between “protected strikes” and “prohibited strikes”. Protected strikes are those where a recognised trade union, engaged in a dispute regarding terms and conditions of employment, gives a legal seven-day notice to the employer, after an attempt at conciliation, in which no essential service is involved, and which is not prohibited by the Industrial Court (ss.76, 77, 78).
If the strike is protected, the employee does not commit a breach of contract, and may not be dismissed or disciplined by the employer, although the employer can withhold their pay and use replacement workers during the strike period (s.79). If the strike is prohibited, the employer has full disciplinary remedies against the employee. Essential services are those which may endanger the life, person or health of the population; teaching is not considered an essential service (s.81, 4th Sched).
Rightly or wrongly, the teachers’ strike is now prohibited. They may still strike, but without legal protection.
The writer is an Advocate of the High Court
