Now AG Muigai tells TSC to obey court order and pay teachers their September salaries

Attorney General Githu Muigai has recommended that the Teachers Service Commission (TSC) should immediately pay teachers their September salaries.

In a legal opinion to TSC Secretary Nancy Macharia, Prof Muigai said the Commission must abide by the Employment and Labour Relations Court that directed that the teachers be paid their September Salaries without victimisation.

“In the special circumstances of this matter , the directive issued by the Court would stand unless there is a stay order either from the Employment and Labour Relations Court itself or Court of Appeal barring the implementation of the directive,” states Prof Muigai.

The legal opinion on the teacher’s salary standoff dated November 30 is also copied to Chief of Staff and Head of Public Service Joseph Kinyua.

The opinion by the Attorney General is expected to end a stand-off between the teachers and their employer over the September salaries after they went on a five week strike this year.

More than 245,000 teachers missed their salaries after their employer released payment for only 42,973 teachers who were in school during the strike period.

Sources at the National Treasury told Daily Nation that, funds to pay the teachers are available and ministry is only waiting for a payroll to effect the payment any time.

Those who were paid September salaries were principals, their deputies and heads of departments as they were in school during the duration of the strike.

TSC on November 24, wrote to the AG to seek his opinion on whether the commission has a legal basis to effect payment of salaries and whether the commission and its officers may be held liable in the event of payment.

In the letter Mrs Macharia stated that TSC was having difficulties implementing the directive citing section 79(6) of the Labour Relations Act Cap 233 which states that an employer is not obliged to remunerate an employee for service that the employee does not render during a protected strike or lockout.

TSC was also concerned with Court of Appeal ruling that a court cannot and should not direct any person to commit an offence by effecting payment without following constitutional procedures under section 196 of the Public Finance Management Act.

Mrs Macharia also cited Section 196(1) of the Public Finance management Act no 18 of 2012 which provides that a public officer shall not spend public money otherwise than authorised by the Constitution or an Act of Parliament.

However, Prof Muigai said: “The Employment and Labour Relations Court in making the above decision is taken to have been fully aware of the law and particularly section 196(1) of the Public Finance management Act no 18 of 2012 and section 79(6) of the Labour Relations Act.”

He added that in his considered opinion, the decision of the Court of Appeal in the civil Appeal is distinguishable and does not apply to the teachers’ matter.

“It was made in reference to the contested legal issue arising from the decision of the trial court of another case between the teachers and TSC,” advises Prof Muigai.

The AG went on: “For the avoidance of doubt, a person cannot be said to have acted against the law and liable for any penalty prescribed by law when the action is stated to be premised on a court order.”

On Sunday, Education CS Fred Matiang’i promised teachers their salaries, but TSC has been reluctant to release the salaries stating that it’s an independent institution.

Dr Matiangi had issued the directive after holding a meetings with Prof Muigai and National Treasury CS Henry Rotich on Sunday.

On Monday, the Cabinet secretary held another meeting with the teachers’ union leaders and promised that the teachers would be paid their salaries.

The four hour-meeting at Jogoo House was attended by top Knut and Kuppet officials.

On November 11, President Kenyatta asked TSC to consider paying the teachers their salaries.

He also directed that teachers who worked during the striking period be compensated for their extraneous work.

On Wednesday, TSC Chairperson Lydia Nzomo said commissioners are out in the field and will look at the issue of the salaries once they are back.

Dr Nzomo added that she was yet to get the AG’s advisory and will only be able to comment once she has seen it.