Self-regulation in any profession requires that government acknowledges that a profession's membership has specialised knowledge to govern themselves and address its regulatory functions. A self-regulating organisation licenses her members to practice and maintain standards of competency and professional conduct.
The main purpose of professional self-regulation is to ensure that consumers of the services of that profession are protected from the unskilled or unethical practice .
The motivations for self-regulation vary. Some are concerned with raising the quality and standard of services, thereby making it possible to raise confidence while others want to protect the consumer. Some industries self-regulate so as to feature competitively in the market.
In developing the self-regulation, parties can play a role in setting, monitoring and enforcing rules. Quite commonly, self-regulatory codes are developed in consultation with the government and/or consumer agencies such as consumer protection agencies, then adopted and administered exclusively by a trade or profession. For example, banks and insurance companies, when making of their codes, always ensure consumers of their services, through their representatives, participate in making the codes.
For self-regulation to succeed, there should be clearly defined tasks but no high risk of serious or widespread harm to consumers so that the failure of self-regulation does not result in great damage. There should also be an active and cohesive industrial relation that brings together employers and the employees’ representatives anchored on acceptability so that enforcement is easier.
Self-regulation has a number of potential advantage. It is dynamic - able to evolve according to need, it is adaptable -less tightly constrained than legislation, it is faster to implement than legislation, it can be sector-specific based on common underlying principles, it can apply to a community across national jurisdictions, it is easier to enforce, industry involvement may make self-regulation more relevant, it can respond to market forces, the burden of cost falls on those with commercial interests and saves government spending.
Traditionally, lack of enforcement of regulations within a sector and redress are weaknesses in self-regulation. Even informal sanctions can be enough to spur cooperation and thereby deter offenders. Nevertheless, it should be recognised that the problem of enforcement is part of any self-regulatory mechanism. This weakness needs to be taken seriously because without adequate sanctions, the self-regulatory effort will fail.
There are examples of professional organisations that are self-regulating. The advocates have a professional body called the Law Society of Kenya. This organisation has an instrument of operation called the Code of Ethics and Conduct for Advocates of 2016. The LSK is essentially the principal regulatory authority over the legal practice and profession in Kenya. The society disciplines her members if they contravene their rules. This has succeeded for all the years it has existed.
LSK commits to the highest possible standards of professional conduct and competencies.
Kenya Medical Practitioners and Dentists Board regulates the medical profession in, among other things, professional ethics, conduct and observance of all related laws within the profession. The board has an instrument called the Code of Professional Conduct and Discipline 6th Edition. This instrument states clearly its mandate and areas of professional conduct that need to be addressed. This instrument has so far controlled the profession tremendously.
Teachers have come of age and should begin practicing self-regulation, especially on discipline within their profession. Teachers have the competencies and the requisite professional ability to instill professional ethics in the teaching profession. The Kenya National Union of Teachers can lead the over 339,000 teachers into a self-regulated teachers professional organisation.
With the Teachers Service Commission should be left with the mandate of exercising powers espoused in chapter 15 article 248 (2). The commission exercises all her roles as at Part XI (139-156) alongside other mandates. It is this mandate on discipline that, as teachers’ representatives, we feel needs to be managed by a teacher’s professional body.
The worst part in the process of disciplining is where a teacher feels aggrieved after being dismissed as per regulation 159 part XII. The commission initially had a Teachers Appeals Tribunal (TAT) which had the mandate of independently looking at review cases, but the tribunal is no longer there. Teachers feel in the absence of the TAT, very little in terms of fairness can be realised.
Streamlining professional matters such as professional conduct, ethical issues and even maintaining standards in the education sector done by the teachers themselves, just like in the other professions above, will help to reduce the many challenges we are witnessing within the profession currently. We wish to encourage our members to begin thinking in this direction. The time has come!
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