Teachers Service Commission under the New Constitution
Open. Accountable. Responsible
As a Commission, the TSC has acquired certain powers that were previously handled by the Ministries of Education.
The TSC will review education standards for teachers, as well as their assignment and discipline. It will also register them.
The Commission will be headed by a Chair and eight Commissioners.
By maintaining a full Commission to oversee a single profession just like the Old Constitution did, the Constitution of Kenya 2010 attaches a great deal of value to education in the Country. It follows therefore that all stakeholders in the sector can expect to see quick and tangible improvement in standards and quality.
The TSC is expected to improve the working conditions of Teachers, and consequently, raise the quality of learning in schools.
The Teachers Service Commission TSC, is a constitutional Commission under the Constitution of Kenya 2010. Excerpts from Article 237, of Chapter 13 - The Public Service, Part 3 - Teachers Service Commission:
237. (1) There is established the Teachers Service Commission.
And by Article 248 of Chapter 15 - Commissions and Independent Offices:
248. (2) The commissions are— (i) the Teachers Service Commission; .......
The Commission is the body empowered to register all Teachers in the Country. It must therefore confirm that such persons have been trained in the profession:
237. (2) The functions of the Commission are— (a) to register trained teachers;
This is an important development in the reform journey of the education sector as it allows the TSC to issue a recognisable certificate of registration to all trained teachers. From Section 28 of the Teachers Service Commission Act 2012:
28. (1) The Commission shall issue to every teacher who is registered under this Act a certificate of registration in the prescribed form.
The TSC is an important body in the education sector in Kenya mandated to not only manage the quality and staffing levels of teaching staff in public schools, but to also advise (both the executive and legislative arms of) government on policies affecting the sector:
237. (3) The Commission shall–– (a) review the standards of education and training of persons entering the teaching service; (b) review the demand for and the supply of teachers; and (c) advise the national government on matters relating to the teaching profession.
It follows therefore that the Commission is responsible for recruiting, and for the full gamut of terms of service of teachers employed in public schools:
(2) The functions of the Commission are— (b) to recruit and employ registered teachers; (c) to assign teachers employed by the Commission for service in any public school or institution; (d) to promote and transfer teachers; .......
The TSC Act 2012 - which gives effect to the Constitutional provisions discussed in this article, provides that the Teachers' register will be a publicly accessible document:
24. (2) A register kept under this section shall be a public document.
Thus any (registration or) deregistration of a Teacher must be gazetted:
30. (2) The Commission shall cause the name and particulars of a teacher whose name is removed from the register under subsection (1) to be published in the Gazette within one month from the date of such removal.
The Commission is also expected to actively promote and facilitate the career development of all the Teachers it registers - all in the name of raising the standards of teaching in our schools as demanded by the Constitution and the Act. In fact, a Teacher who neglects to participate in in-service training could well find themselves under the Commission's disciplinary machinery:
35. (3) A teacher who fails to — (a) undertake a prescribed career and professional development programmes; or (b) take out a teaching certificate under section 35(2) (b) of this Act; shall be dealt with in accordance with the regulations.
Speaking of discipline among teachers, the TSC is mandated by the Constitution to take responsibility for the discipline of Teachers under its employ:
237. (2) The functions of the Commission are— (e) to exercise disciplinary control over teachers; and (f) to terminate the employment of teachers.
The Act is clear on the same; the Commission is expected to crackdown on those Teachers who sexually take advantage of young learners - a common occurrence in the education sector:
30. (1) The Commission may, after inquiry, cause to be removed from the register the name of any person— (c) who has been convicted of a sexual offence or an offence against a pupil or student;
And from the Act - Third Schedule - Disciplinary Offences:
(a) Immoral behavior, including but not restricted to — (i) sexual intercourse ; (ii) sodomy; (iii) lesbianism; and (iv) sexual harassment or flirtation.
Indeed, on the 19th of May 2015, the High Court ordererd the TSC (and the State) to compensate minors defiled in school by their Deputy Head Teacher back in 2010. Further, the Court reminded schools and the Commission and by extension, the State, of their responsibilities to protect pupils and students from abuse. Said the Court,
"157. (2) I find and hold that the 2nd – 4th respondent (the primary school, the TSC, the Attorney General respectively) are vicariously liable for the unlawful acts of the 1st respondent (the Deputy Head-Teacher)."
"158. (c) I declare that all schools and school teachers are at all times under the legal capacity of a guardian and are under a duty to protect all students from sexual and gender based violence or harm by teachers."
"161. However, in the present circumstances, damages are the only remedy that the Court can offer. In view of my finding above in respect of the vicarious liability of the 3rd and 4th respondents, such damages should not only be borne by the 1st respondent, as the perpetrator, but also by his employer, the State through the TSC, which has failed to adequately exercise its duty of care to the petitioners."
The Court also sought to raise the disciplinary bar for the TSC beyond mere transfers or dismissal of perpetrators:
"164. With respect to the State through the TSC, it must up its game with respect to protection of minors. It cannot shuffle paedophiles from one school to another, and finally, content itself with dismissals. It has to put in place an effective mechanism, whether through an inspectorate department within TSC or the Quality Assurance Department within the Ministry, to ensure that no-one with the propensity to abuse children is ever given the opportunity to do so. Dismissal, and even prosecution, while important, can never restore the children’s lost innocence."
Moving on, the TSC bureaucracy is expected to be fully funded in order to establish functional operational units within the Counties, as many roles and functions previously under the Ministry of Education were not devolved but were instead assigned to the Commission by the Constitution of Kenya 2010.
The old TSC under the Old Constitution was often overshadowed by the parent Ministry of Education in policy formulation or dispute resolution. However, the sector appears to be undergoing rapid paradigm shifts following the enactment of the New Constitution. For example, a few months after the General Elections of 2013, their union - the Kenya National Union of Teachers KNUT, called for yet another national strike by its members protesting the failure of successive governments to honour a long-standing collective bargaining agreement, CBA.
So, although the salaries of the teachers employed by the Commission are to be determined and set by the Salaries and Remuneration Commission SRC as stipulated in the Constitution, the teachers had secured their CBA way back in 1997. However, the TSC filed a petition seeking to have the High Court inter alia, declare the 1st of July strike as illegal. The Court nonetheless granted the TSC its request.
Inexplicably, the Teachers' Union did not appear in court and so the judgement was made without its side of the story being heard. The Union refused to recognise the Court's ruling, insisting that the 1997 CBA be implemented fully before it can call off the strike or negotiate new terms with the SRC. The Court went ahead to find the Union's officials of contempt and fined each half a million shillings.
The Union soon called off the strike after entering into an agreement with a Government team led by the Deputy President and the Cabinet Secretary for Labour.
The push-pull tussles between the Teachers and the TSC continued into 2015 in response to the best efforts of the Commission to frustrate the rights of Teachers. Their union called a nationwide strike in January 2015, but after a few weeks agreed to a back-to-work formula with their employer. This spat ended in Court where the Employment and Labour Relations Court orderered the TSC to honour the Collective Bargaining Agreement on the terms and conditions of Employment of all unionisable teachers in Kenya.
All in all the Commission is expected in future, to fully take charge of the mandates assigned to it by the Constitution and the Teachers Service Commission Act 2012.
Lydia Nzomo Chair of the TSC
Although the New Constitution is largely silent on the specifics of the tenure of the Commissioners of the TSC, the Teachers Service Commission Act 2012 affirms that they will serve a fixed 6-year term.
For various reasons, some of which played out in court, the Commission was without a working minimum quorum of three Commissioners between June - when the tenure of most of the Commissioners' expired - and 6th August 2013 when two Commissioners were sworn in. It continued to operate with just three Commissioners until the 20th of November 2014, when the chair was appointed by the President at the conclusion of a delayed recruitment process that was not without controversy.
Indeed two years on after the enactment of the TSC Act 2012, the Commission was without its full compliment of nine Commissioners as required by law until as late as the 26th of Feb 2015 when the remaining batch of 5 Commissioners were appointed into office .
The current Chair of the Commission is expected to serve until the year 2020.
1. Constitution of Kenya, 2010. National Council for Law Reporting. The Attorney General.
2. The Teachers Service Commission Act 2012. National Council for Law Reporting. The Attorney General.
3. Kenya Law Reports. National Council for Law Reporting. The Attorney General.
4. "Personal interests at play in TSC deadlock". Website of the Daily Nation. Referenced July 2014.
5. Clifford Keya v Attorney General & 6 others  eKLR. National Council for Law Reporting. The Attorney General.
6. The Kenya Gazette Vol.CXVII-No.23, Notice Number 1553 of 10th March 2015. The Republic of Kenya.
7. Petition 331 of 2011. W.J & another v Astarikoh Henry Amkoah & 9 others  eKLR. National Council for Law Reporting. The Attorney General.
8. Petition 3 of 2015. Teachers Service Commission v Kenya National Union of Teachers (KNUT) & 3 others  eKLR. National Council for Law Reporting. The Attorney General.