The government is now grappling with how to enforce a Supreme Court ruling that directed it to enforce the teachers’ 50-60 per cent pay hike awarded by the High Court in June.
The highest court in the land yesterday said it has no jurisdiction over a Court of Appeal ruling directing the Teachers Service Commission (TSC) to effect the awarded pay increment starting August.
And following the ruling, Salaries and Remuneration Commission (SRC) said the court had not factored the technicalities such as the requirement by Parliament to approve any money to be allocated to any government agency.
“For any government agency to receive money from the Treasury, it must first have been approved (in this case no approval had earlier been granted) and secondly, it should have been budgeted for. The process of budgeting then discusses the issue of affordability by the Treasury.
In this ruling, neither of the above was taken into consideration,” SRC said in a statement last evening. SRC said implementation of the court order would see teachers’ wage bill shoot from Sh105 billion to Sh119 billion in 2015/16 financial year and Sh135 billion in 2016/17 financial year.
This will also raise the current overall public service wage bill—that of teachers included—from Sh568 billion to Sh582 billion in 2015/16 financial year and Sh599 (2016/17) and Sh617 billion (2017/18).
This is against the backdrop of the government’s anticipated revenue of Sh974 billion currently, Sh1.1 trillion in 2015/16, Sh1.15 trillion in 2016/17 and Sh1.175 trillion in 2017/18 financial years.
Earlier, the Supreme Court, sitting in Nairobi, declined to listen to an application by TSC citing lack of jurisdiction and effectively setting in motion chain of events that will see teacher’s salaries increased by at least 16 per cent in their August pay.
On the other hand, both teachers unions—Kenya National Union of Teachers (Knut) and Kenya Union of Post-Primary Education Teachers (Kuppet) officials—warned TSC of contempt of court proceedings if the salaries are not increased.
Jubilation rent the air immediately Supreme Court Judge and Deputy Chief Justice Kalpana Rawal declared that the court did not have jurisdiction to hear the case thereby diminishing government’s hopes of not paying teachers.
Union officials were carried shoulder-high by elated teachers and other stakeholders in court corridors and streets after the historic ruling.
“We are sending a warning to TSC that the court order must be obeyed. They must now recall the payroll and effect the new changes. We have won 3-0,” said Knut secretary general Wilson Sossion. He said they would also push to have the increments backdated to July this year.
TSC had already paid teachers their August salaries. Knut lawyer Paul Muite said he will be writing to TSC and Treasury this morning warning them against disobeying the order. “I will write to them and warn them of the dangers of contempt of court.
They have to pay,” he said. Kuppet secretary general Akelo Misori said the ball is now in TSC court. “This ruling is a victory to teachers. We now expect nothing less than full compliance from the government,” he said.
The dilemma of the government was sealed after a five-judge Bench said it was premature to listen to the case at this stage. A ruling by Justice Nderi Nduma of Employment and Labour Relations Court formed the primary basis on which Chief Justice Willy Mutunga and Justices Rawal, Jackton Ojwang, Smokin Wanjala and Ibrahim Mohamed made their decision.
In that judgment, Justice Nderi awarded teachers a 50 to 60 per cent pay rise to be staggered over four years starting with this financial year. TSC moved to the Court of Appeal where it argued it was unable to raise Sh70 billion to pay the salaries, but was directed to start paying by end of August or the appeal would collapse.
Dissatisfied, TSC moved to the Supreme Court seeking a stay of the August payment deadline before the case at the Court of Appeal is heard and determined. In their arguments, Supreme Court judges said the issue before them had not yet been fully determined at Court of Appeal and therefore they could not entertain it.
“The application before us contests the exercise of discretion by the Appellate Court…Moreover, the appeal before the Court of Appeal is yet to be heard and determined,” said Justice Wanjala. Lawyers will now move back to Court of Appeal where the TSC has appealed decision by Justice Nderi. The matter will be heard on September 22.