National Assembly speaker Justin Muturi has today told the Departmental Committee on Education and Research to keep off from the resolution process of the refrain from the current disputes between the TSC and KNUT. The two parties have had a sour relationship for the past few years, a scenario that has seen the latter lose many members.
Here is the full communique by the Speaker;
MATTERS BEFORE THE DEPARTMENTAL COMMITTEE ON EDUCATION AND RESEARCH, THE TEACHERS SERVICE COMMISSION AND THE KENYA NATIONAL UNION OF TEACHERS
Honourable Members, this Communication relates to a matter in the Departmental Committee on Education and Research relating to the Teachers Service Commission and the Kenya National Union of Teachers which has been brought to my attention as requiring immediate intervention.
Honourable Members, I wish to inform the House that on 8th September 2020, I received a letter from the Leader of the Majority Party seeking my guidance on a matter that had been brought to his attention by the Secretary and Chief Executive Officer of the Teachers Service Commission (TSC). In the letter dated 4th September 2020, the CEO of the Teachers Service Commission submitted the Commission’s concerns on the manner in which the Kenya National Union of Teachers (KNUT) was approaching an ongoing labour-related issue in view of existing redressal mechanisms.
Honourable Members, the reading and perusal of the documents that were attached to the letter of the Leader of the Majority Party as well as information available to me from the letter of the Teachers Service Commission to the Clerk of the National Assembly of 19th August, 2020 reveal that-
(i) On 11th August 2020, the Departmental Committee, in furtherance to the authority of parliamentary Committees under Article 125(1) of the Constitution, held a meeting attended by the leadership of the Teachers Service Commission as well as senior officials of both the Kenya National Union of Teachers (KNUT) and the Kenya Union of Post Primary Education Teachers (KUPPET). In that meeting, rafts of proposals were made as way forward on the ongoing impasse between TSC and KNUT;
(ii) Following the meeting, the Kenya National Union of Teachers strangely wrote to the TSC urging the Commission to implement a raft of resolutions which KNUT claimed to have risen from the aforementioned meeting. The resolutions, titled “Way forward” which the KNUT asked the TSC to adhere to were as follows –
(a) That the Code of Regulations for Teachers is a valid document used to manage teachers. The Code of Regulations does not capture Career Progression Guidelines.
(b) That the Committee of Education will spearhead the urgent and immediate review of the Code of Regulations for Teachers in readiness for the next CBA negotiations to avoid disputes and standoffs in future. All parties shall give their submissions via a public participation process.
(c) That all teachers to be paid their third and fourth CBA benefits notwithstanding union affiliations with immediate effect as per the law.
(d) That TSC immediately reverts to the Union membership register as it was in June 2019 and resume strict deductions of union dues to return normalcy to KNUT operations.
(e) That the Cabinet Secretary for Labour should urgently gazette agency fee in favour of KNUT to endure equal treatment of unions in the teaching service.
(f) That Parties to immediately cease hostilities, compromise all matters in court and record consents of withdrawals and move out of courts and reset their relations to 2016.
(g) That TSC to develop Teacher Professional Development (TPD) guidelines and submit to the National Assembly for approval in compliance with the Statutory Instruments Act of 2013.
(iii) In response, the Teachers Service Commission wrote to the Clerk of the National Assembly and later to the Leader of the Majority Party seeking guidance on the unusual sequence of events and voicing its reservations about its active participation in Parliament on a matter which is active in Court.
Honourable Members, the occurrence of these events raises the following three key issues whose guidance I have been called upon to offer-
(a) How should Members who represent special interest relate with the said interest in the House and its Committees?
(b) Whether the recommendations or proposals of a Committee of the House can be implemented prior to being considered and adopted by the House; and,
(c) Whether a Committee of this House ought to deal with matters that are active in Court.
Honourable Members, before I address the first issue, it is notable that the Kenya National Union of Teachers did obtain the proceedings of a Departmental Committee of this House including its minutes.
Indeed, a perusal of KNUT’s letter to TSC dated 26th August 2020 reveals that the presumed “recommendations” that KNUT wanted TSC to implement is an extract of the Minutes of the Committee of 11th August 2020.
It is therefore logical to conclude that proceedings of the Committee and part of its journal was deliberately and prematurely disclosed to KNUT in blatant and clear breach of the Standing Orders and the provisions of sections 13 and 25 of the Parliamentary Powers and Privileges Act, 2017.
Honourable Members, you will recall that I have in the past reminded the House, including the Members nominated to represent the youth, persons with disabilities and workers of the need to avoid conflict of interest between their personal and public interests as required by Chapter Six of the Constitution, the Leadership and Integrity Act, 2012, the Public Officer and Ethics Act 2003 and the Parliamentary Powers and Privileges Act, 2017.
Additionally, I have guided before that, Members must at all times declare their interest on any matter before the House or a Committee pursuant to the provisions of Standing Orders 90(1) and 107(1)(e). Indeed, you will recall, Honourable Members, that on 9th May 2019, I guided as follows with regard to an issue that, interestingly, is similar to the one before me today, and I quote-
“THAT, with respect to the Members of Parliament nominated under Article 97(1)(c) of the Constitution, that is, those representing the special interests including the interests of the youth, persons with disabilities and workers, they are also NOT exempted from the application of the provisions of Article 122(3) and Standing Order 90. Further, it is gross misconduct and out of order to wear the hat of a trade unionist or a workers’ representative and at the same time purport to also wear the hat of a Member of Parliament, in the same sitting of a Committee or the House.”
That guidance should suffice with respect to the first Question.
Honourable Members, the next Question that one would probably ask is – what about the authority of the information that was irregularly obtained from the Committee? Hon. Members are aware that, it is a violation of Standing Order 86 for any Member, staff or other person to divulge contents of a Committee’s proceedings before such proceedings become the property of this August House. The said Standing Order states and I quote-
86 . “No Member shall refer to the substance of the proceedings of a Select Committee before the Committee has made its report to the House.”
Honourable Members, even as I settle the Second Question, it is a matter of public knowledge that Committees are organs and creatures of this House, and consequently, their resolutions have no binding effect and cannot be acted on unless adopted by the House in its plenary sitting. Indeed, a Committee has no authority except that which the House has delegated.
Under Standing Order 216(5), one of the functions of Departmental Committees is to investigate, inquire into, and report on all matters relating to the mandate, management, activities and operations of the assigned ministries and departments. The operative words
are “report on”. No committee has powers to “order”, “direct”, or “instruct”, except as may be resolved by the House having considered a report of a Committee on a particular matter. Permit me, Hon. Members to refer to Commonwealth Parliaments’ Practice as codified in the 23rd Edition of Erskine May, page 142, which states, and I quote-
“The publication or disclosure of debates or proceedings of committees conducted with closed doors or in private or when the publication is expressly forbidden by the House, or of draft reports of committees before they have been reported to the House will constitute a breach of privilege or contempt.”
Honourable Members, The information quoted in the letter of the KNUT to the TSC constituted deliberations of the Departmental Committee on Education and Research which are yet to be brought to the House in form of a report. While it is obvious that the KNUT and the TSC are free to exchange any correspondences between them, it is extremely out of order for KNUT or indeed any person to quote the deliberations or proposals made in the Departmental Committee on Education and Research and use them as an authority in a bid to compel action from a third party.
In any case, Honourable Members, even if the proposed recommendations had already been adopted by this House, the onus of communicating them to both TSC and KNUT would have rested on the Clerk of the National Assembly, and not on KNUT which is itself a party to the matters. I therefore admonish the strange and unprocedural manner in which the KNUT appear to have behaved in this matter, by not only purporting to use premature parliamentary information to its benefit, but also taking up the role of Clerk of the National Assembly as the official conveyor of the decisions or resolutions of the House and its Committees.
Honourable Members, on the Third Question of whether a Committee of this House ought to deal with matters that are active in court, this now introduces the issue of sub-judice as indeed raised by the Teachers Service Commission. As you are all aware, Standing Order 89 prohibits the deliberation of matters that are active in a court of law.
However, the prohibition of discussion on active court matters is limited to the extent where such discussion is likely to prejudice fair determination of matters at hand. This is primarily the reason why Standing Order 89(5) grants the Speaker of the National Assembly power to allow reference to any matter before the House or a Committee.
Honourable Members, just to reiterate, I have previously addressed this matter on several occasions in the 11th and the current Parliament. You may, for instance, recall the ruling that I delivered on 29th October 2013 upon request by the Member for Ugenya, the Hon. David Ochieng, MP. In that ruling, I did state in part, as follows-
“A recommendation of a Committee is not final until the report is considered by the House and a decision made in one way or the other. However, should the House adopt a report of a Committee purporting to invalidate or nullify a matter determined by a court exercising its judicial powers, then it becomes very difficult for anyone to implement such a resolution.
This is because our Parliament does not have appellate jurisdictions or judicial processes. As a matter of fact, the practice of parliamentary appellate jurisdictions was primarily practised in the United Kingdom (UK) Parliament, where the House of Lords also acted as a court of appeal.
However, this practice ended on 1st October, 2009, when the appellate jurisdiction was transferred to the Supreme Court. In this regard, it will probably be more useful for Parliament to require that the aggrieved party makes an appeal before a higher court. It has been urged that if Parliament makes a resolution that is not implementable, or one that purports to unduly reverse a court process, then such resolution would be in vain.
I am on record asking committees to refrain from making Parliament act in vain because that is not what the membership of this House was elected to do; certainly not to act in vain.”
Having said that, Hon. Members, information before me indicates that there are about eight active cases pending in various courts between the Teachers Service Commission and the Kenya National Union of Teachers part of which relate to the matters that the Departmental Committee on Education and Research was being invited to consider.
As such, any intention by the Committee or this House to delve into these matters is likely to offend Standing Order 89. Whereas the two entities, that is the TSC and KNUT falls within the mandate of the Committee, it is only prudent that parties decide on the path they want to follow to settle their dispute. As at now, it does appear to me that they have chosen the court process.
As a House, it is only fair, that we allow them to exhaust that option without inviting the House or its organs to be part of the dispute or to attempt to mediate, unless the parties formally opt out of the court process in favour of a parliamentary process. For abundance of caution, it is prudent that given the matters are also active in court, it is proper that the Committee and indeed the House deals with the matter after litigation has been settled so that the House would not trespass into the judicial province.
However, it is noted that the principle of sub-judice cannot stand in the way of consideration of a matter vital to the public interest. Whereas under Article 95(2) and (5)(b) of the Constitution gives the National Assembly the role to deliberate on and resolve issues of concern to the people and express oversight mandate over State organs, that mandate ought to be exercised as per the law, the Standing orders and the established precedent.
But in the present case, Honourable members, I hasten to caution that it is not in the public interest that the Committee revisits the long standing suits between the TSC and KNUT until the matters therein are concluded by the Courts. After all, there are various formal dispute resolution mechanisms recognized in law, and this House and its Committees is not any of them.
Honourable Members, in conclusion and having examined the three issues, my considered guidance on the matter is as follows-
1. THAT, the Hon. Members who represent special interests should always declare interest when considering the said interest in the House and its Committees in accordance with the requirements of Standing Order 90;
2. THAT, the recommendations of a Committee of this House are not to be implemented prior to being considered and adopted by this House, unless the law or the Standing Orders provides otherwise. However, at that stage, parties are at liberty to take counsel of the views of the Committee as the views largely represent the views of the people’s representatives ; and,
3. THAT, the Departmental Committee on Education and Research does refrain from revisiting the current disputes between the TSC and KNUT in accordance with the requirements of Standing Order 89 noting that the disputes are subject of active Court cases, unless the parties involved formally opt out of the Court processes in favour of a Parliamentary process.
The Committee and the House are accordingly guided.
I thank you!
THE HON. JUSTIN B.N. MUTURI, EGH, MP
SPEAKER OF THE NATIONAL ASSEMBLY
Tuesday, September 29, 2020
