NEW! 
Written by EI Team | 
The Teachers Service Commission (TSC) is highly centralized; teachers seeking job-related services have to, sometimes travel hundreds of kilometers, to Nairobi to get their problems sorted. Talk of out of the frying pan into the fire.
“We expect the new constitution to improve our terms and conditions of service,” said a teacher we met in one of the far flung districts in Kenya.
Teachers working in remote districts in this country expect the service delivery by TSC to improve. “Coming to Nairobi is a nightmare,” a teacher from Homa Bay told Education Insight. “We get into lot of problems. Some of us get robbed or coned of our money in the streets.”
One teacher told us a senior TSC officer threatened to get him interdicted on trumped charges of desertion! ‘Desertion is a term used by TSC to describe an offense in which a teacher is absent from duty continuously for a period of 14 days or more without written permission or acceptable explanation. “I got permission over the telephone to be away for a couple of days to come to Nairobi to sort out some standing salary issues,” the teacher told Education Insight. “Those demoralized and poorly remunerated TSC staff at the TSC headquarters can stop at nothing to extort money from teachers visiting TSC offices.”
Though TSC has units in almost every district in Kenya, teachers troop to the TSC headquarters in Nairobi to follow-up their concerns over salary delays, quarter per diem, arrears; or follow-ups of transfers, study leave applications, promotion letters, and other services.
Quarter per diem is a phrase popularly used by teachers to describe maintenance allowances payable to a teacher attending a course of training outside Kenya, or subsistence allowance when travelling on duty outside Kenya. A teacher is expected to apply to TSC for the allowance on prescribed forms and relevant documents authorizing and approving the course. “You know how the Government works. We do not receive official letters directly. They come through authorizing or approving officers… in some cases the letter reaches you a few days before departure, yet TSC regulations demand that one must apply for subsistence allowance ‘through respective heads of institutions at least two weeks before the date of departure, what do you do?” a principal asked Education Insight. “Some people bribe TSC official to be paid the quarter per diem on return.”
Another principal said, “I applied for the allowance in good time, but when I made a follow up for my case days before my teacher, my file was missing! I borrowed money from a friend to attend the seminar outside. When I returned, the file had been found but the documents were missing. I could not submit fresh claims because the rule states: Claims should not be submitted after the teacher completes the course. Those in the know tell us you have to part with something to get paid!”
Transparency International Kenya writes : As Kenya’s single largest employer (employing 250,000 teachers), Teachers Service Commission is an important national institution. Corruption within its ranks therefore has national implications. Not much research has been done on corruption in Kenya’s education sector. Nevertheless TI Kenya’s annual Kenya Bribery Index has since 2002 featured the Teachers Service Commission. In 2005, the education sector featured prominently with four national education sector institutions being ranked in the KBI: The Teachers Service Commission, the Ministry of Education, Public Universities, Public Colleges and Public Schools. Teachers told Education Insight they pay Ksh50, 000 – 70,000 (if not more) to secure transfers or buy promotions.
Teachers hope that with the enactment of the Proposed constitution, TSC will be brought to their counties and personal files will be brought to their districts so that they won’t be required to travel to Nairobi TSC headquarters where unscrupulous TSC secretariat staff force bribes out of them before they can be served. “My disciplinary case has taken years to be heard because my file was hidden by an officer whom I refused to give a bribe,” an elderly teacher told Education Insight.
Our informant told us that bribery at the TSC headquarters is carried out by an informal group within the commission comprising officers of all ranks - from the juniors to the seniors.
Teachers we interviewed are optimistic that the Proposed Constitution will remove the bottlenecks created by TSC rigid bureaucracies. There is a layer of administrators that tend to insulate the TSC secretary and keep him beyond the reach of teachers. Currently, delegation of function of the TSC is to the Provincial Director of Education, District/Municipal Education officer, Provincial Education Board (Nairobi), the District Education Board and the Board of Governors. These arrangements often cause confusion and duplication of services.
Teachers expect that the Proposed Constitution will facilitate devolution of key services such as recruitment and deployment of teachers, promotions, discipline, payment of pension and gratuity and that others controlled by a cartel of powerful senior officials and deputy secretaries will come to an end.
Teachers working and living in rural Kenya are the most disadvantaged teachers in this country. In addition, they have to travel hundreds of Kilometers to follow-up their job-related issues, but they are marginalized and left out of TSC employee fringe benefits such as ex gratia. According to teachers in the country payment for ex-gratia assistance for medical expenses is a preserve of a few.
The Teachers Service Commission Code of Regulations for Teachers (2005) states: the Commission may at its discretion consider ex-gratia assistance for medical expenses incurred by a teacher in excess of the amount refunded to him/her…. Claims for ‘ex-gratia” assistance giving details of the illness should be forwarded for consideration to the Secretary, Teachers Service Commission. All claims for the teachers and head teachers in both primary and post primary institutions should be submitted through the Provincial Director of Education (Nairobi), District Education Officers or Municipal officers.
Several teachers interviewed said “ex-gratia” assistance has never served rural teachers. A teacher who sought anonymity told Education Insight “Teachers working in Nairobi and its surroundings, and those who have relatives and friends in TSC are the ones in a position to benefit from what you call ex gratia and government scholarship. Our hope is in the devolution of these resources through county government. That is when we expect to see ex-gratia, scholarship and other fringe benefits from our employer.”
Teachers are optimistic that injustices and suffering under the central TSC are set to end with the Proposed Constitution. Although the devolved government may not be a panacea to social ills in the teaching service, it is likely to bring change in term and condition of teaching service. Teachers stand to benefit inasmuch as the objects of the devolution of government are, among others, to promote democratic and accountable exercise of power, to give powers of self-governance to the people and enhance the participation of the people in the exercise of the powers of the state and in making decisions affecting them, to facilitate the decentralization of State organs, and their functions and services, from the capital of Kenya.
County governments established under this Constitution shall have reliable sources of revenue to enable them to govern and deliver services effectively. Teachers hope to have reprieve with more resources coming to their workplace and environment.
The legislative authority of a county is vested in, and exercised by, its country assembly. County assembly may make any laws that are necessary for or incidental to the effective performance of the functions and exercise of the powers of the county government. Teachers expect county assemblies to demand for accountability and transparency from TSC in the dispensation of its functions.
The Anatomy of the new TSC in the proposed Constitution
Today’s TSC (Teachers Service Commission) is a semi-autonomous state corporation operating under the auspices of the Ministry of Education under the provisions of Section 3(1) of the TSC Act, Cap 21 of Laws of Kenya. But TSC is set to be a constitutional office in the Proposed Constitution of Kenya with provisions applicable under Chapter 15 of the proposed Constitution. Chapter 15, Article 248(2) and (3), describes the functions and powers of the new TSC. Article 249, 2(b) provides that “The Commissions and the holders of Independent Offices;
(a)are subject only to this Constitution and the law; and
(b)are independent and not subject to direction or control by any person or authority.”
Being a constitutional office, the proposed TSC shall be independent and not under the control of any body or authority and that it shall only be accountable as far as the constitutional provisions and other relevant laws.
In respect of funding, Article 249 (3) provides that “Parliament shall allocate adequate funds to enable each Commission … to perform its functions and the budget of each Commission … shall be a separate vote.” This means that the TSC shall receive its funding directly and its budget shall be a separate vote. Currently, TSC is funded by the government through the ministry of education and often operates under a shoestring budget. With the enactment of the proposed constitution, TSC is guaranteed financial autonomy.
Article 252 (1) establishes the powers for each Commission, which includes recruitment of its own staff and any other powers prescribed by legislation in addition to the functions and powers conferred by the Constitution.
The proposed constitution is keen to emphasize the autonomy of TSC. In Article 235(1) it provides that “(1) a county government is responsible, within a framework of uniform norms and standards prescribed by an Act of parliament for-
(a)establishing and abolishing offices in its Public Service;
(b)appointing persons to hold or act in those offices, and confirm appointments; and (c)Exercising disciplinary control over and removing persons holding or acting in those offices.”
But in Article 235(2), the proposed constitution exempts TSC from the application of Article 235 (1). Article 235 (2) states: “(2) Clause (1) shall not apply to any office or position subject to the Teachers Service Commission.”
So TSC shall retain the exclusive mandate to recruit and employ registered teachers all over the Country. This is also by virtue of the provisions of Article 235 (2) which exempt the TSC from the provisions of Article 235 (1).
Commission Secretary’s Office
Chapter 15 which is an exclusive chapter on Commissions and Independent Offices provides under Article 250 (12) that “There shall be a Secretary to each Commission who shall be:-
(a)appointed by the Commission; and
(b)the Chief Executive Officer of the Commission.”
This provision applies to the TSC as one of the Commissions established under the Constitution. It therefore implies that TSC shall have a Secretary who also doubles up as the Chief Executive Officer. Article 233 (6) states - “The Secretary:-
(a)is the Chief Executive of the Commission; and
(b)shall be appointed by the Commission for a term of 5 years, and is eligible for reappointment once.
Office of the Commissioners
Article 250 (1) provides for the office of the Commissioners to each Commission. The aforesaid provision limits the number of Commissioners to be at least 3 and not more than 9.
Sub-Article (6) there under provides that “unless ex-officio, a member of a Commission shall be appointed for a single term of six years and is not eligible for reappointment...”
At the present, TSC has 24 Commissioners, a number which is set to reduce so that the new establishment is in tandem with the aforementioned provisions.
Furthermore, Article 250(2) provides that “The chairperson and each member of a commission, and the holder of an independent office, shall be-
a)identified and recommended for appointment in a manner prescribed by national legislation;
b)approved by the national assembly
c)appointed by the president….”
Implicitly, the provisions of the TSC Act, shall still apply in so far as the qualifications of a member to the Commission relate. However, the proposed constitution is silent as to the body that makes the recommendations for the appointment of a Commissioner as set out in Article 250(2).
Transition
Part 7 provides for miscellaneous matters and more particularly, Section 31 touches on existing offices. The provision therefore relates to offices of Commissioners presently in office and the Secretary to the Commission.
31 (2) “Subject to subsection (7) and section 24, a person who immediately before the effective date, held or was acting in a public office established by law, so far as is consistent with this constitution, shall continue to hold or act in that office as if appointed to that position under this constitution.”
This implies that upon the Constitution coming into effect, the Commissioners and Commission Secretary shall continue to hold office for their respective unexpired period.
Remuneration of Teachers
The Proposed Constitution creates Salaries and Remuneration Commission as follows:
Article 230
(1) There is established the Salaries and Remuneration Commission.
(2) The Salaries and Remuneration Commission consists of the following persons appointed by the President—
(a) a chairperson;
(b) one person each nominated by the following bodies from among persons who are not members or employees of those bodies—
(i) the Parliamentary Service Commission;
(ii) the Public Service Commission;
(iii) the Judicial Service Commission;
(iv) the Teachers Service Commission;
(v) the National Police Service Commission;
(vi) the Defence Council; and
(vii) the Senate, on behalf of the county governments;
(c) one person each nominated by—
(i) an umbrella body representing trade unions;
(ii) an umbrella body representing employers; and
(iii) a joint forum of professional bodies as provided by legislation;
(d) one person each nominated by—
(i) the Cabinet Secretary responsible for finance; and
(ii) the Attorney-General; and
(e) one person who has experience in the management of human resources in the public service, nominated by the Cabinet Secretary responsible for public service.
(3) The Commissioners under clause (1) (d) and (e) shall have no vote.
(4) The powers and functions of the Salaries and Remuneration Commission shall be to —
(a) set and regularly review the remuneration and benefits of all State officers; and
(b) advise the national and county governments on the remuneration and benefits of all other public officers.
(5) In performing its functions, the Commission shall take the following principles into account—
(a) the need to ensure that the total public compensation bill is fiscally sustainable;
(b) the need to ensure that the public services are able to attract and retain the skills required to execute their functions;
(c) the need to recognise productivity and performance; and
(d) transparency and fairness.
This implies that salaries and remuneration of public servants will be harmonized. The proposed Salaries and Remuneration will determine salaries and remuneration payable to the public servant. This means the Proposed Constitution renders null and void The Teachers Service commission Act Chapter 1212 Article (13), which empowers the Minister for Education to establish, for the purpose of considering the remuneration payable to teachers in the teachers service, a committee known as the Teachers Service Remuneration Committee.
Furthermore, the Proposed Constitution limits TSC ‘s role in the determination of teachers’ remuneration. According the Proposed Constitution, TSC nominates one person who is not a member or employee of TSC in the Salaries and Remuneration Commission. One person will represent ‘an umbrella body representing trade unions.’
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