By Dann Mwangi
The right to strike is clearly acknowledged under our laws from the Constitution, Labour Relations Act to other Employment laws. Although the timing of the ongoing string of strikes has been viewed with circumspection in various quarters, this does not take away that under our legal regime, dissatisfied employees have a right to disagree with the employer by resorting to industrial action provided that it is done within the laws of the land.
Article 3(1) of the new Constitution is categorical that all people, the mighty and the lowly alike must respect, uphold and defend the Constitution.
The Constitution in setting up the judicial arm of governance underscores the vital place that it occupies in the administration of justice. The Judiciary is seen as the arm of the last resort where citizens run for refuge when trailed by injustice. As bastions of a functioning democracy, courts and the decisions they render are sacrosanct.
It is thus disheartening the ongoing strike by teachers is happening in spite of an industrial court order disallowing it for the time being. The rule of law is always under constant threat whenever the law is made to humble itself before man.
The country becomes one where justice belongs to the mighty while the weak are left with no recourse where their grievances can be accommodated. What prevails in the end is not the need for justice to be done but for muscles to be flexed.
While the Kenya National Union of Teachers (Knut) together with the Kenya Union of Post Primary Education Teachers (Kuppet) may have credible concerns regarding the welfare of their members, participating in an illegal strike can only undermine their cause especially when they ironically state that the strike is primarily as a result of the Government flouting the law on payment of agreed salary phases. You cannot use an illegality to cure supposed illegality.
Where people get dissatisfied with the outcome of court decisions, the law provides for the avenues of appeal or moving to set aside such decisions. Any other action is extrajudicial and only amounts to underpinning impunity.
The giant Knut must guard against the view that they have settled on their might to circumvent the law. The law must always apply equally to everybody.
In acknowledging that they are perpetrating an illegality, Knut and Kuppet have attempted to clutch on a straw of the argument that the Government disobeyed the court orders with regard to the High Court decision on the county commissioners.
While an appeal has been preferred against the said decision and making the matter sub judice, some grounds of that appeal relate to the obscurity of the court decision regarding who it was actually made against and hence making it difficult to implement.
After all, article 3(1) of the Constitution is clear that everyone has a cardinal duty to uphold the new law individually first and foremost. Knut and Kuppet cannot be heard to argue that the reason they are perpetrating illegality is because they think the Government acted illegally. Not only is their thinking wrong on this matter, it is not a defence in law. The law is there to be followed and obeyed by everybody at all times lest we degenerate into the state of anarchy and strife.
Events which are taking place in our country at this point in time call for serious soul searching. From the slaughter fields of Tana River to the strikes that have rocked our nation, a perilous trend is emerging. This sends a very dangerous signal that all is not well with our national psyche.
We cannot gainsay the havoc which the ongoing strikes have wreaked especially on innocent young candidates whose future aspirations have now been put in abeyance.
We hope that the teachers are going to consider the latest Government’s offer by playing less hard ball for the sake of thousands of dreams which are about to be shattered. Both parties must be prepared to cede ground in order to advance the course of justice for pupils and students in our schools. A sense of duty and purpose must always guide the actions of workers in our nation.
The writer is a lawyer
