The final and perhaps most controversial pillar of the Teachers Service Commission (Amendment) Bill 2024 is a direct assault on the collective bargaining power of Kenyan educators. By introducing a broad and somewhat ambiguous definition of “Serious Offenses,” the Commission is seeking the legal authority to classify certain industrial actions as acts that “grossly offend public interest.”
This move has sent alarm bells ringing through the headquarters of KNUT and KUPPET, as it potentially equips the TSC with the power to deregister teachers who participate in “illegal” or “unprotected” strikes without the traditional safety net of labor courts.
The draft legislation expands the list of “Serious Offenses” beyond capital crimes and sexual misconduct to include acts or omissions that cause significant disruption to the education system. Under this new framework, organized mass absenteeism—often the hallmark of a strike—could be interpreted as a “gross omission of duty” that harms the rights of the child to an education.
If the TSC can successfully argue that a strike “grossly offends the public,” they would have the power to summarily interdict and eventually remove participating teachers from the register, bypassing the lengthy processes currently mandated by the Labor Relations Act.
A Shield Against Industrial Action?
Critics argue that this clause is a “Trojan Horse” designed to make strikes effectively impossible. Historically, teachers have used strike notices to force the government to implement Collective Bargaining Agreements (CBAs). The new Bill, however, proposes that the TSC can take “disciplinary action on general evidence” rather than strict rules of evidence.
This means that instead of proving individual misconduct, the Commission could use the general fact of a school’s closure during a strike to discipline the entire staff. It shifts the power dynamic from negotiation to coercion, essentially outlawing the primary weapon of the labor movement.
The Battle Over Constitutional Rights
Union leaders have vowed to challenge this specific clause in the High Court, citing Article 41 of the Constitution, which guarantees every worker the right to join a trade union and participate in its activities, including strikes. They argue that by labeling industrial action as a “gross offense to public interest,” the TSC is attempting to overwrite the Constitution through subsidiary legislation.
The TSC, conversely, maintains that while teachers have rights, those rights do not supersede the constitutional right of every Kenyan child to a continuous, uninterrupted basic education.
A Tense Standoff for the Future of Teaching
As the Bill moves to its final reading in Parliament, the tension between the “Iron Fist” of the Commission and the “Voice” of the unions has reached a breaking point. If passed in its current form, the 2024 Amendment will fundamentally change the nature of teacher-employer relations in Kenya. It signals an era where the TSC is not just an employer, but a powerful moral and administrative regulator with the ability to define—and punish—what it deems to be a “betrayal” of the public interest.
