Now private schools win reprieve from closure order

Politics and policy

Students study at the Kenya National Library Service Mombasa Branch as schools remained closed over the teachers’ pay dispute on September 21, 2015. PHOTO | KEVIN ODIT 

By SANDRA CHAO-BLASTO, schao@ke.nationmedia.com

In Summary

• Private school owners moved to court Monday to protest their involvement in the Sh17 billion pay dispute between the government and its employees and obtained an order keeping their schools open till Thursday.

The teachers’ strike entered its fourth week with an escalation of court battles pitting President Uhuru Kenyatta’s government against the teachers’ union and private school owners.

Private school owners moved to court Monday to protest their involvement in the Sh17 billion pay dispute between the government and its employees and obtained an order keeping their schools open till Thursday.

They launched their battle as the government filed a preliminary objection to Kenya National Union of Teachers’ application seeking to have eight high ranking officials committed to jail for contempt  of court over their failure to pay teachers the salaries they were awarded  last month.

Owners of the schools sought the court’s intervention after the Ministry of Education issued a directive on Friday closing all schools indefinitely over the ongoing teachers’ strike.

But the High Court on Monday temporarily stopped execution of the directive, pending determination of the suit.

Kenya Private Schools Association officials Ernest Muchoki, Mutheu Kassanga and Dolly Anjiri have sued the Education secretary and the Attorney-General over the directive that they say violates the constitutional rights of children to access education from private schools.

Justice Mumbi Ngugi issued temporary orders allowing private schools to continue teaching their pupils until Thursday when the parties are expected in court.

“I am satisfied that in the circumstances of the case it is in the interests of justice to grant the prayers sought by the petitioners, temporarily staying application of the circular dated September 18 to private schools,” she said.

The association, through lawyer Muturi Kamande, had told Justice Ngugi that the grounds for closure of schools did not apply to private institutions.

“Based on the circular, the members of the petitioner who account for 9,000 schools with a population of about two million pupils received the pupils back for the third term with reasonable belief that the term would run until November 13,” he said.

Ndoro Mogere Peter, KPSA’s chief executive, said closure of private schools violated the pupils’ constitutional rights because they are in a contract to be taught until November 13 and the government had no business interfering with that contract.

“Pupils in private schools have paid their contracted school fees and the same will not be refunded despite the shortening of the school term with 53 days since teachers will have to be paid their salaries irrespective of whether they have taught or not,” he said.

In a televised address from State House on Sunday, President Kenyatta defended the decision to close all schools, saying it was the only way to ensure the safety of children and safeguard school property.

READ: Uhuru rules out higher pay amid calls for talks

Mr Kenyatta also ruled out paying teachers higher salaries, insisting that doing so would make the public wage bill unbearable. The constitutional petition by the private schools was fixed for hearing on Thursday.

Knut instituted contempt of court proceedings against TSC’s two high ranking officials, chairperson Prof Lydia Nzomo and chief executive Nancy Macharia, over their failure to implement court orders on the teachers’ salaries.

The Treasury secretary, his Education and Labour counterparts together with their principal secretaries are also listed as respondents in the case.

The teachers are seeking orders directing the government to effect the basic salary increment of 50-60 per cent that the court awarded them in August.

The Teachers’ Service Commission (TSC) wants the court to dismiss the contempt suit, saying it was misconceived.

“The honourable court did not issue judgment against any of the persons named in the motion. They have never been parties in the petition and accordingly no orders can be issued against them,” TSC lawyer Stella Rutto said.

The Attorney-General, who represents Cabinet secretaries and their principal secretaries, argued that the High Court does not have the jurisdiction to grant the arrest orders sought by the tutors. Besides, he argued, the teachers have not supplied the State with any order formally expressing the decision of the court.

“The present application is essentially seeking to execute the contents of a letter from the applicant’s counsel rather than any formal process served upon the respondents herein,” senior state counsel Emannuel Bitta said, adding that issuing the orders sought would be a violation of the role and functional independence of TSC.

Teachers and their employer are this morning expected to appear before the appellate court for hearing of a case the government has filed, seeking to stop the implementation of the 50-60 per cent pay increase that the Employment and Labour Relations Court judge Nduma Nderi awarded the teachers in August.

The Court of Appeal had given TSC a temporary reprieve with the conditional stay stopping payment of backdated dues and instead implementing the pay hike amounting to Sh1.4 billion per month as their appeal is being heard.

Teachers now claim that by failing to meet the conditional stay, the government is now liable to pay the full Sh70 billion award.

TSC has also filed a suit at the Employment and Labour Relations Court, seeking to have the strike declared illegal as its organisers did not follow the legally supported path to its start and had paralysed learning countrywide.

“The right to education outweighs the right to remuneration that the teachers are claiming. Knut and Kuppet are using the strike to enforce a judgment. In any event, there is no money to implement the judgment. The strike is based on remuneration, which can be paid today, tomorrow or next year. Time lost by school children cannot be compensated,” the TSC argued in its petition.

Last week, Justice Nelson Abuodha warned teachers and their employer against threatening each other in the dispute over the dispute and is expected to make a ruling on September 25.