The country is smarting from yet another prolonged industrial action that was called by the giant teachers union (KNUT). In as much as reason prevailed and the union called off the strike, there are a number of aspects that cannot be swept under the carpet: First, the way the government handled the strike leaves a lot to be desired. From issuing ultimatums, divide and rule tactics, threatening to sack, ordering for recruitment of new teachers to seeking legal action, it was manifest that the government was hell bent on scuttling the strike by all means possible. This was despite the fact that the government was duly bound by the 1997 deal entered into vide Legal Notice No. 234.
The country is smarting from yet another prolonged industrial action that was called by the giant teachers union (KNUT). Inasmuch as reason prevailed and the union called off the strike, there are a number of aspects that cannot be swept under the carpet: First, the way the government handled the strike leaves a lot to be desired. From issuing ultimatums, divide and rule tactics, threatening to sack, ordering for recruitment of new teachers to seeking legal action, it was manifest that the government was hell bent on scuttling the strike by all means possible. This was despite the fact that the government was duly bound by the 1997 deal entered into vide Legal Notice No. 234. Suffice to say, the government even purported to deny the existence and/or question the legality of such deal!
Two, to give credit where it is due, the government managed to offer Kshs. 16.8 Billion which shall be implemented in 2 phases. Be it as it may, a trend of strikes appears to be taking root especially in the education sector. A walk down the memory lane will establish that even before the ink on which the return-to formula is signed dries up, you hear of clamor for pay increment occasioned by breach of the negotiated agreements. It has become commonplace that one can even predict another strike by the next financial year!
Now when there appears to be signs of normalcy in the sector and KNUT is taking stock, enters the Salaries Remuneration Commission (SRC). It is on record that the SRC has issued a directive to TSC not to pay teachers salaries for the time they were on a strike. In default, the TSC secretary shall be held personally liable for misuse of public funds. The SRC’s letter reads in part:
“Please take note that as a public officer, if you pay or approve the payment of any remuneration and benefits out of public funds contrary to SRC instruction or advise and more so in contravention to court order to resume work, any payment made for the period during which teachers were on strike would be illegal and in contravention of Article 226(5) of the Constitution which places responsibility of public funds on such officer,”
Granted, the SRC is established as a constitutional commission and vested with the power to set, review remuneration of all state officers and further advise both the national and county governments on remuneration matters. The Constitution further provides for the tenets to be considered by the commission in discharging its functions. Article 230 5(c) provides thus:
‘…the need to recognize productivity and performance…’
On its part, the TSC is established under Article 237 of the Constitution as an independent constitutional commission and its functions so stipulated thereunder.
Interrogation of SRC’s directive
There are a number of issues that stem out of this directive:
i. Does the SRC directive to withhold remuneration amount to punishing the Kenyan teacher twice?
ii. Will the SRC directive plunge the education sector into a crisis, if it is implemented?
iii. The position of negotiated agreements (read return-to work formula) in industrial actions.
I stand corrected, double jeopardy is prohibited in law. It is trite law that no person should be punished twice. The Industrial Court on Monday 22nd July 2013 found the KNUT officials guilty of contempt of court and imposed a fine of Kshs 500, 000/- each and Kshs. 5,000, 000/- on the union albeit with an indication by union officials to appeal the decision.
Again, one of the fundamental clauses of negotiated agreements touches on non-victimization. The employer undertakes not to punish the employee for downing tools which rationalizes aptly with an employee’s constitutional right to go on strike. It is in the public domain that the return to work formula contained a provision of no victimization and further immediate release of the June salary. Does it mean a negotiated agreement can be vitiated or watered down by a person or body which was not party to such agreement? Put otherwise, is it tantamount to sneaking a provision on victimization into negotiated agreements?
If that is the case, what will be the attendant effect on the employee’s right to go on strike as provided for at Article 41 (1)(d) of the Constitution? I envisage a situation where the Kenyan employer will enter into a return to work formula and dishonor it once the employee has resumed work. It is instructive to point out that in most instances, parties to an industrial dispute resort to negotiations and eventually end up signing return-to-work formulae.
Withholding the July pay will leave the Kenyan teacher a dejected lot. Already, the union has called a press conference to condemn the SRC directive and threatened to call for another strike if it is effected. This will adversely affect learning and sink further the already wanting quality of education in our public schools.
With due respect, this directive is ill-advised and will set a bad precedent not only in the education sector but also for the Kenyan employee at large. It serves to negate the full realization of the right to go on strike. Besides, it is also not in tandem with best labour practices for it amounts to curtailing the right of trade unions to freely and lawfully engage in advocating for their members concerns.