June 22, 2018

Teachers Strike is Unprotected says High Court

Law courts Nairobi

By Calvin Osiemo

Teachers have suffered a blow after the High Court declared that the ongoing teachers strike as ‘unprotected by law’. Reading the ruling, Employment and Labor Relations Court Judge Justice Monica Mbaru said that the teachers did not follow the due process before arriving at the decision to down their tools. The strike, which kicked off on Tuesday, is being held by teachers in a bid to secure a 50 to 60 percent salary increment as directed by the Industrial Court in a pay row that has lasted the better part of over 18 years.

The ruling by the Industrial court was upheld by the Supreme Court after it ruled in favor of the teachers indicating that the increment should have reflected in the teachers’ August payroll. Failure by the government to honor the court ruling compelled the teachers to give TSC an ultimatum of until Monday midnight which prompted the ongoing strike. Delivering the ruling Justice Mbaru said despite the fact that the Kenya National Union of Teachers (KNUT) and Kenya Union of Post Primary Education teachers (KUPPET) are right to call for industrial action, they should have given a notice first before proceeding with the strike.

“Upon the confirmation by the unions that their members are on strike in their enjoyment of their rights under Article 41 of the Constitution, the court finds that the strike is without such due process and is not protected,” said Judge Mbaru.

The court however did not declare the strike by the teachers illegal because under the dispensation of the Kenya constitution under the 2007 Labour Relations Act that requires a strike notice to be issued, the lawyer representing the teacher unions said is in conflict with the new constitution that was inaugurated in the year 2010.

“The Constitution (of) 2010 is supreme and any law that does not conform with it is invalid. We are, therefore, asking for an order that a three-judge bench be constituted to determine whether such a notice was required in the face of the new constitutional dispensation,” said lawyer Paul Muite representing KNUT.

The Teachers Service Commission had moved to court seeking to declare the strike illegal while on the other hand the teachers’ unions (KNUT and KUPPET) say that TSC was in contempt of court for failing to honor the ruling by both the Industrial Court and the Supreme Court.

The court has granted KNUT till Monday to present their argument in court over the 2007 Labour Relations Act that demands for a strike notice before calling for a strike. The case will be heard on Thursday next week.

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