JANE WACHIRA
On September 18, 1962 – October 11, the Kenya National Union of Teachers (Knut) held its first nationwide strike. Kenya’s current president Uhuru Kenyatta was a toddler then. The strike was declared illegal by the ruling party Kanu, and Knut officials arrested; the charges preferred against them were later dropped by the Industrial Court.
The November 1966 strike made history as the government eased its stand and allowed formation of the TSC through a parliamentary Bill by the then minister for Education Jeremiah Nyagah. In November 1969, there was another strike – it was to be the last in Mzee Jomo Kenyatta’s rule –between TSC and Knut; it saw the formation of the Teachers Service Remuneration Committee, whose recommendations the demands made by teachers government honoured the following year.
Twenty eight years later, in 1997, the teachers took to the streets again, this time demanding a 300 per cent pay rise. They were led by the vocal unionist Ambrose Adongo. It was an election year and former president Daniel Moi blamed the opposition for attempting to sabotage elections. The strike aimed to paralyse learning and alter examination dates. It saw the formation of the (in)famous “teachers’ salary agreement” spearheaded by the then minister for Education Joseph Kamotho. First, a down payment of 34 per cent was made as it was an election year and all funds were directed to elections. The second payment was made in 1998, but after that no more payments were made. To date every other teachers strike has been based on this agreement.
In October 1998, there was another strike, for which the union blamed government for failing to implement the pay rise it had promised. In 2002, the teachers’ salary issue had been a campaign issue for Narc, which promised to pay the teachers. However, when it took power, it did not keep that promise. So, in October 2002, the teachers went on strike which lasted two weeks. The minister for Education then, Henry Kosgey, threatened to sack all of teachers, however they did not relent, and this caused a major paralysis in the education sector.
In January 2009, during “the mother of all strikes”, eight million children were affected. The teachers were demanding that the government pays a sum of Sh19 billion. It promised to pay Sh17.3 billion in phases citing economic issues. In September 2011, there was another teachers’ strike, this time with different grievances: they claimed that they were understaffed due to the influx of students following the introduction of free primary education.
In July 2013, shortly after Jubilee government came into power, the teachers were on strike again, demanding a 300 per cent pay rise and responsibility allowance. The strike lasted for twenty four days although it had been declared illegal by industrial court. Knut, Wilson Sossion (chair) and Mudzo Nzili (secretary general) were each charged for contempt of court and fined five million, five hundred thousand and five hundred thousand respectively. Later, the Deputy President William Ruto struck a deal with the unions and the teachers went back class.
Gave counter offer
In August 2014, Knut issued a strike notice over the government’s failure to honour the return-to-work agreement they signed in 2013. In January 2015, Knut and the Kenya Union of Post-Primary Teachers (Kuppet) went on strike demanding a salary increment, commuter allowance, as well as hardship and responsibility allowances. However, after negotiations they decided to go back to work.
Last month, the most controversial teachers’ strike I would say, comes after a series of rulings and judgments from the High Court, Court of Appeal and a related pronouncement from the Supreme Court. It has so far lasted three weeks and was moving on to its fourth week when government ordered the closure of all public and private schools – the court has since overturned the order on private schools.
This followed negotiations between TSC and Knut and Kuppet, with the unions originally asking for between 200 and 300 per cent increments. The TSC had proposed to the Treasury and SRC, as it is claimed, an increment of between 50 and 60 per cent as a counter offer. When TSC failed to honour its pledge, the unions went to court, where Industrial Court judge Nduma Nderi ordered that the TSC pay teachers the 50 to 60 per cent increment. This controversial increment was actually a suggestion of the TSC, “the judge did not pluck it from the air” Senior Counsel Paul Muite acting for the Unions told the Court of Appeal later.
The government had been directed to enforce the order by July 30, but TSC filed an appeal arguing that there was only one week left before salaries were remitted, and that it was not possible to effect as the 2015/2017 budget had already been passed. The three-judge Court of Appeal bench directed that the TSC effect the increase by August 1, upholding Judge Nderi’s ruling. The TSC, not satisfied with the ruling, lodged yet another appeal at the Supreme Court. The Court’s bench, led by Justice Smokin Wanjala, ruled that, by legal norms and jurisdiction that ought to preserve the substratum of an appeal, the Supreme Court did not have jurisdiction over the matter, and that the orders of the Court of Appeal sufficed.
The courts had pronounced themselves, and teachers had won, again and again.
But wait. Court orders in the banana republic that is Kenya, shall only be followed when they favour the bourgeoisie, those of the ruling class and with the most power.
Legitimate Expectation
The doctrine of legitimate expectation dictates that if a public body, in this case the TSC or the government, makes a promise, it’s expected that they shall and should deliver on that promise. The doctrine seeks to enhance trust and legitimacy of the government; it then follows that the the 50-60 per cent increment as directed by the courts should be effected.
How is it that the principle of contempt of court can be enforced against Knut, but cease to apply against government and its agencies? Article 27 of the Constitution deems all Kenyans equal, but this is hardly the case in reality, on the basis of what we are witnessing. Clearly, “some animals are more equal than others”. We have in place a government that recognises the song of the ‘rule of law’ but does not sing its tune – again, consider the move to shut down all public and private schools, and statements such as “we cannot pay, we shall not pay”
Article 37 confers on every person the right, “peaceably and unarmed, to assemble, to demonstrate, to picket, and to present petitions to public authorities”. Government, by closing down schools, is suppressing this right. What teachers are asking for is merely a just wage, which is their right, under Article 43 on Economic and social rights, with special reference to Article 43 (1) (b) on the right to accessible and adequate housing and to reasonable standards of sanitation.
Under Article 28, every person has inherent dignity and the right to have that dignity respected and protected. But all that government has been doing is to humiliate teachers, degrade them through paying meagre salaries, and treating them like less of people professionals.
Article 36 grants to every person freedom of association; teachers have every right to form unions and to obey their directives if they are aimed at bettering their welfare and fighting for their infringed upon rights. By their numerous strikes, teachers have been disrupting education and disorienting our children; this I do not dispute. But how is it their fault that they are on strike yet it’s the government that refused to pay them their promised dues? What about the teachers’ children? Does anyone care whether they are getting adequate and sufficient education and other basic needs? Don’t they fall too under the scope of our nations’ children?
Kenya is the perfect example of Karl Marx’s capitalist society, one where the ruling class call the shots, employs, rather exploits the proletariat’s hard labour in exchange for “peanuts” as wages. It is the same class that sets the market prices, just like the Kenyan government is doing now, deciding who gets paid and how much.
Not unable; just unwilling
After the Jubilee government came into power, it made an outrageous Sh1.43 billion Anglo Leasing payout on grounds that it was protecting Kenya’s reputation as a country that follows the rule of law and one that honours its contractual obligations. Which rule of law is this that is adhered to before international courts and not before local courts, including the Supreme Court?
It is doubly sad that the last cabinet meeting was held on May 21, and the next one was held to order the closure of schools and to suppress the teachers strike. According to the Auditor-General, Sh67 billion was lost in the 2014/2015 financial year, and more will be lost if loopholes are not sealed. Recently, it emerged that Sh791 million was lost at the National Youth Service under the Devolution ministry, but that has been conveniently put in the background. There is a lot of money going around; it is just not getting to the people who need it most. If government wanted to pay teachers, it could. But it won’t, because it does not want to. This whole idea is actually a fallacy prima facie, that the right and decisions are being made.
Every five years, we go into elections seeking to elect better leaders, ones who will honour the promises they make, uphold the Constitution, respect the law, exercise democracy and treat citizens with respect and dignity. But every time, they make us realise we made a mistake yet another time.^
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