Why TSC must pay or face contempt charges

On August 24, the Supreme Court made a ruling which has elicited and sustained nationwide discourse each and every day since the decision.

The ruling, in the above cited case filed by the Teachers Service Commission (TSC), challenged a ruling of the Court of Appeal onthe national hot potato – teachers’ salary review. Without exciting your emotions, the Supreme Court simply stated that it does not have jurisdiction (or warrant) to interfere with the exercise of ‘discretionary power’ by the Court of Appeal.

Then it crowned it by directing TSC to pay the costs of suit to Knut and Kuppet, the rival unions representing teachers’ interests. Now, this is not what you read in the media and I can imagine you pondering over hard questions like, what did they say about the teachers’ salary and about the strike? I will offer some insight which, hopefully, updates your understanding of the ruling and its importance. A historical journey is necessary in order to understand the context and the effects of the subject decision of the Supreme Court.

In January, Knut and Kuppet called teachers to nationwide strike to protest the laxity of TSC to review their salaries. TSC hurriedly moved to the Employment and Labour Relations Court challenging the legality of the strike. The court summoned the parties and initiated a conciliation process which resulted in a consent order ending the strike as well as mandating the unions and TSC to negotiate a new Collective Bargaining Agreement (CBA) on teachers’ salaries and allowances.

The teachers went back to class but TSC allegedly refused to engage in negotiations. This prompted under-current wars with various letters exchanged by the parties, and meetings in semblance of negotiations held. In one of the meetings TSC had proposed to review the basic salary for teachers at 50-60 per cent spread over a period of four years. This was in counter to the unions’ demand for a 300 per cent increment. The ‘negotiations’ then stalled and the parties went back to court to revive the January case as the orders had not been fully satisfied. Specifically, Knut and Kuppet asked the court to order a salary increase for teachers in line with prevailing economic indices, being inflation rates and the Consumer Price Indices and backdated to 1997 when the teachers had last ‘negotiated basic salary increase’ (it is important to note that there have been government-initiated increment until 2009 but these have been contested by the unions as inadequate).

Following lengthy trials and legal submissions, Justice Mathews Nderi Nduma made a decision on June 30 ordering TSC to immediately effect a basic salary increment of 50-60 per cent spread over four years and backdated to July 1, 2013. This is an annual increase of between 12.5-15 per cent. This component, as can be deduced from the summary, was only affecting the ‘basic salary.’

TSC felt aggrieved by the decision and immediately lodged an appeal to the Court of Appeal. Pending the hearing and determination of the appeal, TSC made an urgent application seeking stay of execution of the above orders by the Employment and Labour Relations Court concerning increase of teachers’ salaries and allowances. Jurisdiction of the Court of Appeal to order stay of execution in such circumstances is ‘discretionary’, meaning the court is not statutorily or constitutionally required makes such orders, but nevertheless considers and makes them under its inherent jurisdiction with a view to protecting the subject matter of appeal from being rendered nugatory or ineffective.

On July 23, 2015, the Court of Appeal made a ruling and agreed to stay the execution of the orders of Employment and Labour Relations Court, but on set conditions being met by TSC. Specifically, the Court of Appeal stayed implementation of review of allowances, negotiating and registering new CBA and backdating of basic salary increase. The Court of Appeal, however, directed TSC to immediately ensure increase of basic salary in the terms ordered by the Employment and Labour Court, commencing August 1 2015.

TSC still felt dissatisfied with the decision to only grant it partial and conditional stay and therefore tried its luck up the ladder by filing the Supreme Court of Kenya, seeking stay of the Court of Appeal’s order directing it to effect basic salary review for teachers beginning August 1. The Supreme Court rendered itself on August 24 unequivocally declaring that it “lacks jurisdiction to entertain an application challenging the exercise of discretion by the Court of Appeal under Rule 5 (2) (b) of that Court’s Rules.”

The Supreme Court highlighted the fact that it cannot arrogate powers not specifically granted to it by the Constitution or statute.

The appeal is still pending at the Court of Appeal and TSC is still required to prosecute the appeal and show the court why the orders of the Employment and Labour Court should be set aside. If TSC fails to prosecute its appeal, then the orders of the Employment and Labour Court will remain unchallenged and it will be required to comply with them. At the moment, TSC has exhausted all its judicial options on the matter of stay of execution and has to immediately effect a salary increase for the teachers at the annual rate of 12.5- 15 per cent over the next four years beginning August 1, 2015.  Should TSC fail to effect salary increment as ordered by the Court of Appeal, its commissioners and senior officers risk being cited for contempt of court and could be fined or handed jail terms commensurate with contempt offences.