Review registering, disciplining of tutors

Clifford Geertz, in his book The Interpretation of Cultures, says “man is an animal suspended in webs of significance he himself has spun”.

The Teachers Service Commission (TSC) is the single-largest employer in Kenya.

Because of its size, just like other organisations, it has in place a web of policies, programmes, procedures, laws and regulations that govern its activities. Take, for example, registration and dismissal of teachers.

Before teachers are hired by the TSC, they have to be registered by the commission.

The TSC Act, Cap 212 (1968) (repealed) provided an elaborate procedure for getting an individual registered and for them to appeal when the TSC refuses to do so.

It provided that “any person aggrieved by the refusal of the Commission to register him may, within 21 days of the service on him of the notice, appeal to the Appeals Tribunal”.

A teacher can also be removed from the register of teachers after an elaborate disciplinary process has been concluded.

However, if a teacher is dismissed and removed from the register and desired to appeal, the same law provided for a procedure of doing so.

It stated that “any person in respect of whom a determination has been made by the Commission under this section may, within 28 days of the service on him of the notice, appeal to the Appeals Tribunal”.

The Act provided for an Appeals Tribunal to consider and determine appeals from aggrieved persons on refusal by the TSC to register them or having removed them from the register and “whose decision in any such appeal shall be final”.

It was composed of a chairman, appointed by the Education minister; not less than two nor more than four other members, also appointed by the minister, and of whom at least one is a registered teacher who shall be appointed after consultation with the organisation that is seen by the minister as representing teachers, and a person who is not a member of the Commission.

The other was an assessor to the Appeals Tribunal, who should be an advocate of not less than five years’ standing, appointed by the tribunal with the approval of the minister, and who would attend the proceedings of the tribunal as necessary and advise it on questions of law.

The tribunal had offices at the Ministry of Education headquarters at Jogoo House, Nairobi.

This Tribunal was independent of the TSC and an aggrieved person would, in all likelihood, be satisfied with its verdict.

The TSC was upgraded to a constitutional commission in 2010. Consequently, it cannot be instructed or directed by anybody except the Constitution itself.

On the basis of this change, the TSC Act 2012 was enacted and, concurrently, the TSC Act, Cap 212 (1968) repealed.

The new law does not provide for an Appeals Tribunal. A person who is denied registration can only appeal to the TSC.

The process of disciplining teachers, leading to removal from the register, is a lengthy one.

At the county level, the investigating officer is the county director, who forwards the report to a discipline officer at the TSC.

The discipline officer prosecutes the case in a panel of commissioners, who eventually pass judgment.

If the judgment is that the teacher be dismissed and removed from the register, the teacher could choose to appeal to the same Commission in the absence of an Appeals Tribunal.

One wonders whether a second set of commissioners hearing an appeal on a case presided over by another set of commissioners would make a different judgment, since all the commissioners are equal in status.

When the Kenya National Union of Teachers (Knut) presented a memorandum to the Building Bridges Initiative in August, it made a statement to the effect that “since the Constitution appreciates that education has a vital role to play in the development of the country’s human, natural and material resources, and being the main enabler of socio-economic development, the management of teaching and learning needs to be in safe, trusted and secure hands at all times”.

Could the union have been having in mind the need for some form of structure that provides for checks and balances as far as the welfare of teachers is concerned?

Could it be the case that the gains made by a strong independent constitutional commission in service delivery to teachers may be getting eroded inadvertently by the absence of an independent Appeals Tribunal that previously provided “safe, trusted and secure hands at all times”?

Could we have created webs that teachers and their employer have suspended themselves?