Teachers' strike unprotected, rules judge

A Standard Four pupil at Kilimani Primary School in Nairobi waits in vain for his teachers on September 3, 2015. The High Court on September 4, 2015 declared the ongoing teachers' strike unprotected. PHOTO | ANTHONY OMUYA | NATION MEDIA GROUP

What you need to know:

  • Allowing any party to exercise a right to strike outside the due process, she said, is tantamount to throwing everything into disarray.

  • The judge, however, declined to declare the strike illegal and directed Knut and Kuppet, who are seeking to defend their action, to file their court papers by Monday.

  • Knut and Kuppet are opposed to the application by TSC to have the strike declared illegal, saying the Constitution grants them the right to strike.

The ongoing teachers’ strike, which officially started on Tuesday, is unprotected, the High Court has ruled.

Justice Monica Mbaru of the Employment and Labour Relations Court on Friday said the Kenya National Union of Teachers (Knut) and the Kenya Post Primary Education Teachers (Kuppet) failed to follow the law before calling the job boycott.

The two unions called the strike to compel the government to raise teachers' pay by 50 to 60 per cent as directed by the Court of Appeal.

Although members of the two unions have a constitutional right to strike, the judge ruled, they should have given a notice first.

“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.

STRIKE NOTICE

Allowing any party to exercise a right to strike outside the due process, she said, is tantamount to throwing everything into disarray.

The judge, however, declined to declare the strike illegal and directed Knut and Kuppet, which are seeking to defend their action, to file their court papers by Monday.

Knut and Kuppet are opposed to the application by the TSC to have the strike declared illegal, saying the Constitution grants them the right to strike.

The 2007 Labour Relations Act that requires a strike notice to be issued, they argue, cannot supersede provisions in the Constitution 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,” Knut lawyer Paul Muite said.

CONTEMPT OF COURT

His arguments were echoed by Kuppet lawyer Aaron Ndubi, who told the court that the 2010 Constitution directs that all laws that existed before it ought to be construed with the alteration, adaptation, qualifications and exceptions necessary, to bring them into conformity with it.

Mr Ndubi and Mr Muite equally stated that the TSC was in contempt of court, and the labour court should not have entertained its application.

The teachers' employer, they said, had failed to comply with the Court of Appeal orders that required it to pay teachers higher salaries from August 31.

But TSC lawyer George Obura said the matter before the labour court is of national importance as the strike is affecting both the commission and learners in public primary and secondary schools.

The TSC is seeking orders directing teachers to resume teaching.

The application by Knut and Kuppet challenging the requirements in the 2007 Labour Relations Act that a notice be issued before a strike commences will be heard on Thursday.