Teachers have been ordered to report to school today when schools open.
Justice Byron Ongaya suspended the planned strike by the Kenya National Union of Teachers (Knut) and directed that the union resume conciliation talks with the Teachers Service Commission (TSC) to resolve the dispute that threatened to paralyse the re-opening of schools for the first term.
The judge also declined to reschedule the school opening dates to Monday next week to allow the union to officially communicate to its members about the aborted strike.
“All teachers must report to class in line with the academic calendar. Children must not be left unattended since it is in their interest that they be in school given that the academic timelines apply both to private and public schools,” ruled the judge.
His decision was, however, a win-win situation for both the teachers and their employers as he stopped the commission from effecting the 3,094 teacher transfers until February 14, when they would have acted on the request to review them.
Justice Ongaya also stopped the commission from transferring union officials from the geographical areas in which they were elected to serve and suspended a circular by TSC on teacher promotion guidelines.
“All promotions must be done in accordance with the collective bargaining agreement and since the formula for teachers’ professional development has not been formulated, the parties should engage in talks and have it implemented only after reaching an agreement,” ruled Ongaya.
He directed that TSC boss Nancy Macharia and Knut Secretary General Wilson Sossion lead their respective teams to resume conciliation talks at the Ministry of Labour from today until the issues in contention are resolved.
Ongaya made the decision after a long day of heated exchanges during which both parties took a hardline stance to push through their cases.
Knut detailed the four issues that put it at loggerheads with TSC, which it claimed the employer had decided to do unilaterally without considering the welfare of over 12 million school children.
Through lawyer Paul Muite, the union insisted that it would be meaningless to force teachers back to class as the issues remained unresolved. Knut argued that using the court to stop the strike was more harmful than if teachers were allowed to boycott work.
“Children’s interest demands they be taught by motivated teachers. You can take a cow to the river but you cannot force it to drink water, which is why the court should lift the orders stopping the strike. Teachers will have no excitement to teach if they are demoralised,” said Mr Muite.
He stated that the union’s contention leading to the strike revolved around teachers’ promotions, transfers, the performance contracting system and teachers’ professional development modules.
According to Muite, the four issues were to be resolved using the collecting bargaining agreement registered in November 2016, which TSC breached by coming up with a new formula that was not negotiated.
“Teachers are only asking the employer to respect the terms and conditions set out in the CBA. The dispute arose because instead of complying with the terms TSC reverted to the old days of dictatorship and dictating to teachers on what to do,” he said, adding that teachers were willing to resume conciliatory talks but would not do so when if orders stopping the strike were still in force.
“We cannot be on a level playing ground if we go to conciliation talks with a gun to our head. We feel an injustice has been meted out on teachers by stopping the strike and we are asking the court to vacate the orders, then we go for talks,” said Muite.
His arguments were backed up by Mr Sossion, whose affidavit stated that the union followed due process in calling the strike after talks with TSC collapsed in October, 2018.
Sossion said the dispute could have been avoided if the teachers’ employer fully implemented the CBA instead of introducing new guidelines without consulting them.
He said delocalisation was being done in an opaque manner that failed to consider the peculiar circumstances of the teachers involved, while tools used to appraise teachers were cumbersome and meant to frustrate them.
But TSC, through lawyer Cavin Anyuor, said it had not breached any terms of the CBA and opened the door for more talks.
The commission said there were no pending cases of teacher promotions but admitted that there were flaws in the teacher professional development programme since they were still procuring the systems.
“You cannot call a strike for a process that has not been implemented. Their case is that our tools are cumbersome and cause delay, but what we are telling them is that we can jointly review the systems to come up with what is best for the teachers,” said Mr Anyuor.