One of the downsides of a rule of law system is that you cannot simply disobey an order of the court that you disagree with. The difficulties in enforcing the order of the court is not a good enough reason to disobey it. The Employment and Labour Court heard the Teachers' Service Commission, the Kenya National Union of Teachers, the Kenya Union of Post-Primary Education Teachers, the Ministry of Education, Science and Technology and the National Treasury and made a determination that, at the end of the day, means that teachers in the public service would be awarded increments of between 50% and 60% of their salaries.
This is an order that will be very difficult to implement; for that reason the Teachers Service Commission has appealed to the Court of Appeal against the order of the employment court. The National Treasury and the Salaries and Remuneration Commission have warned that if the award is enforced, the public wage bill shall become unsustainable and that the national economy would be imperilled. No less than the President of the Republic has stated that the national government cannot and, therefore, will not pay the award. The teachers' unions have gone on strike, and for the past three weeks their members have not attended work.
The order is surely a watershed in the annals of the conflicts between the teachers and the national government. Previous arrangements between the two have not had the backing of Kenya's judiciary. This one does, and it is opposed by all official agencies of the national government, including the TSC, the National Treasury, the education ministry, the SRC and the President.
It is an unenforceable order, if the national government is to be believed. However, when it comes to ambitions of being a rule of law country, the national government has no choice but to implement the award of the court, bar a reversal by the Court of the Appeal which must be affirmed by the Supreme Court. That is what it means to be bound by the rule of law; whether one agrees with the determinations of the courts, one has no choice but to abide by them.
The stance taken by the TSC, the National Treasury, the education ministry, the SRC and the President endangers the fragile gains made in the inculcation of a culture of constitutionalism and a respect for the rule of law. If the national government and its agencies are unhappy with the outcome of their legal contest with the teachers' unions, it has a simple enough option: change the law. That can only happen in Parliament, which has abdicated its duty all along in this sorry saga.
When the Speaker of the National Assembly refuses to reconvene his legislative chamber to address the crisis, he plays into the hands of the teachers' unions. Kenya already has a precedent of dealing with knotty political problems using the blunt instrument of statutory amendment: when the Electoral Commission of Kenya bungled the 2007 general election, in the aftermath of the crisis that it engendered, Parliament amended the Constitution to disband the commission. Granted that there was a broad consensus that the Commission could not live, this is a precedent that can be applied to the extant case.
The reason, I suspect, why this road is not being explored is because the national government and Parliament have both pooh-poohed all efforts at austerity, appropriating for their seniormost functionaries salaries and allowances that are quite abhorrent in the face of the straitened national finances. These institutions do not have the moral authority to deny the genuine demands of teachers and they know it, and that is why the battle against the award is being prosecuted in court, the airwaves, newspaper editorial and commentary pages and in the blogosphere. The national government is trying to rally public sentiment to its side. I fear it will not succeed, especially now that it is piling on the pressure on the public by closing public schools and attempting to shut down private ones.
I hope the Court of Appeal reverses the order of the employment court and that the Supreme Courts supports that determination. However, that should not be the end of the matter. All belligerent parties must negotiate in good faith. If they do not, another version of this crisis will blow up at another inconvenient juncture in the future. Of that there is no doubt.
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