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Teachers' pay deal was flawed from the start, AG says

By Kamau Muthoni | October 1st 2015

The Government yesterday presented justification for its opposition to the 50-60 per cent pay hike for teachers in submissions by Attorney General Githu Muigai at the Court of Appeal.

The AG, in his submissions before a five-judge bench hearing the case, stated that the Government had a problem with the award and faulted the Employment and Labour Relations Court judge over his ruling.

Prof Githu, before justices Festus Azangalala, Philomena Mwilu, Erastus Githinji, Martha Koome and Otieno Odek, said that the Government had already told the lower court, from the onset of the dispute, that it did not have the monies to sustain the award and that it would hurt the economy.

The AG said that Justice Nduma Nderi ignored the call.

Not sustainable

"The republic disagrees with how the judge conducted the case. The Treasury had already told the court that Sh72 billion would not be fiscally sustainable and would be devastating to the national economy," he argued.

Githu explained the economics of the award, noting that the country would have to borrow heavily to sustain the bloated salaries and the capital market would have a negative dive if it were implemented.

He argued that the labour court had been made aware of what it meant to increase the current public sector pay, adding the advice was ignored.

The AG said that the lower court had usurped the powers given to Parliament to determine expenditure by various units of Government.

"There is no procedure known in law that would create Sh72 billion. The powers to preserve and spend funds cannot be drawn away from Parliament by the courts," he said.

The AG added that the judge erred in law when he disregarded the role of the Salaries and Remuneration Commission in determining how much the Government was to spend on payroll.

He said that the 2010 Constitution made it mandatory for all officers to seek recommendations from the Sarah Serem-led commission whenever they wanted a pay hike to be implemented.

"No public officer should award himself without the regard of an autonomous and independent body, SRC," he said.

Githu held that the case before Justice Nderi was a constitutional issue and not a pay one. He said the Constitution does not have a clause on economic dispute.

"There was no proper case on pay before the judge for him to make the orders as he did. The constitutional case by Teachers Service Commission before him lies undetermined to date. There is no such a thing as an economic dispute in the Constitution," the judges heard.

The court heard that an employer could not be forced to increase employees' pay, and that the international labour laws only directed that what was be to be paid was the monies agreed upon by the parties.

The State further told the court that the Treasury would only honour an award if it were budgeted for.

The AG lifted the defiance blame from TSC, saying that it had already done its best to inform the Treasury of the award. He said the court ought to stop the unions from pursuing TSC officials for failing to honour the court orders.

Hearing continues today.

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