The bruising industrial battle between the Teachers Service Commission (TSC) and the Kenya National Union of Teachers (Knut) will soon move to the floor of the National Assembly as the two attempt to clip each other's wings.
Knut Secretary-General Wilson Sossion, who is also a nominated MP, has drafted a bill that seeks to fundamentally change the make-up of the commission to give teachers more say. The draft proposes changes to the Teachers Service Act that was passed in 2012, establishing the TSC in accordance with the 2010 Constitution.
The 2019 Teachers Service Commission (Amendment) Bill proposes to delete sections of the principal Act that provide for the appointment of the chairperson and eight other members of the commission. It recommends that the commissioners instead be elected by members of registered and recognised teachers' unions in accordance with the Constitution and the provisions of section 8.
"TSC is supposed to be an independent constitutional commission but the teachers have no say. Where is the independence? The initial objective of independent commissions was to create autonomy. We need to have a chair and a commission that defends the interests of the teachers," Mr Sossion told the Sunday Nation.
TSC, for its part, this week notified Knut of its intention to annul their 51-year-old recognition agreement. The commission also applied to the National Labour Board seeking to be freed from the relationship with the oldest teachers' union in Kenya. If granted the wish, annulling the agreement would make the Knut position complicated in its engagement with the teachers' employer.
On Monday, TSC chief executive Nancy Macharia gave Knut a two-month notice before terminating the recognition agreement the two parties signed in 1968. She said Knut members are not a majority of teachers.
"The Kenya National Union of Teachers does not have a simple majority of unionisable employees under the employment of the Teachers Service Commission as at November 4," the letter reads.
Ms Macharia hinged her actions on Clause 2 of the recognition agreement and Section 54 (1) and (5) of the Labour Relations Act. Knut has since disputed the legality of the notice, arguing that the 50 + 1 rule only applies to new applications for recognition.
The membership of Knut is also in dispute. TSC gives the figure as 115,000, against which it paid Knut union dues amounting to Sh83 million in September and October. However, Knut says it has 187,000 teachers in its register for which it has been receiving Sh143 million monthly in union dues.
Thousands of teachers, especially in primary schools, where Knut enjoys a huge following, would be in a quandary if the relationship is severed. It is on the basis of the recognition agreement that Knut negotiates better teachers' salaries, promotions and general welfare.
"TSC just wants to legitimately kill Knut and it's not right," a teacher from Bungoma County told the Sunday Nation.
Mr Sossion will need to rally the support of fellow members of Parliament to see the bill through to law. "We created a commission without proper structures of operationalisation," Mr Sossion said.
The amendment bill he has drafted deletes the words "appointed" in Section 6 of the principal Act and replaces it with "elected" and in Section 7 substitutes the word "appointment" with "election".
Mr Sossion suggests the greatest alteration in Section 8 of the Act. In its current form, the section spells out in detail the process of appointing commissioners, through a selection panel that is appointed by the President and their requisite qualifications.
Interested candidates apply to the selection panel, which shortlists and conducts interviews and submits the names of three qualified applicants for the position of chairperson to the President. Thirteen qualified applicants' names are also forwarded to the President for consideration.
The President then forwards the names to Parliament for vetting and approval after which successful candidates are formally appointed. It is this process that the bill replaces with the election the commissioners by teachers, through their unions.
The draft neither provides guidance on conducting elections nor gives the qualifications required of candidates seeking to be commissioners.
According to Mr Sossion, the draft can be amended and for now, it only captures the spirit of the intended change with the nitty-gritty of the proposed elections to be decided by the unions later. There are two registered and recognised teachers' unions -- Knut and the Kenya Union of Post Primary Education Teachers (Kuppet).
The amended Section 8 reads:
"The members of registered and recognised teachers' unions elect suitable candidates for appointment as the chairperson or a member of the Commission (a) at least six months before the lapse of the term of the chairperson or a member; (b) within thirty days of the declaration of a vacancy in the office of the chairperson or member."
When an MP intends to change a law, he or she writes to the Speaker of the National Assembly outlining the intention of the change. The Speaker may approve or reject the proposal based on merit. If approved, it is forwarded to the Legal Office, which drafts the bill before it goes to the Budget Office for a determination on whether it is a money bill (whether its enactment will prompt additional expenditure of public funds).
It is then tabled before the relevant committee for consideration and if approved is published for presentation in Parliament.
The TSC Act obligates the President to "observe the principle of gender equity, ethnic and other diversities of the people of Kenya, and ensure equality of opportunity for persons with disabilities" in the appointments.
The nominees must comply with Chapter Six of the Constitution on integrity. It is not clear how the proposed amendment bill will achieve this and the vetting procedure for candidates.
Mr Sossion argues that the changes he proposes will bring TSC to the level of other constitutional commissions, such as the Judicial Service Commission and the Parliamentary Service Commission.