Major Reforms at the Teachers Service Commission, TSC: Final CBC Task Force Report.
| Issues | Analysis | Recommendations |
| Duplication of Quality Assurance function between MoE and TSC. | In Article 237 (3) of the Constitution establishes TSC and mandates it to “review the standards of education and training of persons entering the teaching service”.
Under Section 11(c) of Act, TSC is mandated to “ensure that teachers comply with the teaching standards set by the Commission”, while under Section 11 (f) TSC is required to “monitor the conduct and performance of teachers in the teaching service”. |
Section 11 (c), (f) and Section 35 (1) of the TSC Act and related provisions in the TSC regulations should be amended to cure the duplication of the quality assurance function between MoE and TSC. |
| In implementing both Sections 11(c) & (f) the Commission developed TSC code of regulations, 2015 (Development, Review and Maintenance of Entry and Performance Standards), which provides under regulation, 44 “that the Commission may for purposes of maintaining the performance standards, designate a Quality Assurance and Standards Officer at the County and Sub County level”.
From the foregoing, it is apparent that the function of the TSC as enshrined in the Constitution, is mis-interpreted in the TSC Act and TSC Code of Regulations for teachers. This is because, TSC has established a Directorate of Quality Assurance and Standards at the headquarters with offices across the entire Country thus overlapping with the responsibilities of the Directorate of Quality Assurance and Standards in the Ministry of Education. Furthermore, Section 35 (1) of the TSC Act provides that “the commission shall take all necessary steps to ensure that persons in the teaching service comply with the teaching standards prescribed by the commission under this Act”. However, this is in conflict with the function of the National Government as prescribed under Section 15 Part 1 of the Fourth Schedule of the Constitution. In a letter dated 10th September 2014, the Commission for the implementation of the Constitution (CIC) concluded that Section 35 (1) of the TSC Act, which required the commission to take all necessary steps to ensure that persons in the teaching service comply with the teaching standards prescribed by the commission under the Act is unconstitutional. CIC pointed out that ‘compliance with standards is the responsibility of the National Government’ and therefore whether a teach displays the standards at work is the Primary work of the National government. The Attorney General in a letter dated 19th December, 2014 addressed to the Cabinet Secretary Education concurred with CIC. |
The function of quality assurance and standards is the sole function of the MoE. TSC function should be to the teacher as a professional and employee within
the framework of performance evaluation and not quality assurance of education in a basic education institution by redesigning the teacher performance evaluation to be similar to performance evaluation in other sectors of civil government and to provide for control of operations in learning institutions for MoE. |
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| Pre-Service and In-Service Teacher Training | Section 35 (2) of the Act provides that the commission shall require every registered teacher to undertake career progression and professional development programmes as may be prescribed by regulations made under the Act.
On the other hand, the fourth schedule of the constitution mandates the national government to set education policy, standards, and curricula for all levels of education and training. This means that the national government is required to develop programmes and curricula for teacher education and training. |
Section 35 (2) of the TSC Act is unconstitutional and should be deleted together with the related provisions in the TSC regulations. Pre-service and in- service teacher
training is the responsibility of the MoE. |
| Thus, Section 35 (2) of the TSC Act is unconstitutional on the basis that Article 237 does not mandate TSC to conduct any form of capacity building. Pre- service and in-service teacher training is therefore the responsibility of MoE. | ||
| Deployment, Transfer and Promotion of Teachers | Article 237 (2) (c) & (d) of the constitution mandate TSC to deploy, transfer and promote teachers. On its part, MoE runs the schools through the BoMs and the day to day activities of the school are undertaken by the headteacher in the case of a Primary school and a principal in the case of a Secondary school on behalf of MoE.
The teachers are employees of TSC but they run and implement the curriculum developed by MoE through KICD. Thus, though the teachers are employees of TSC they work for MoE which is expected to supervise and quality assure the teacher delivery of the curriculum. |
Deployment, transfer and promotion of teachers by TSC should be done in consultation with MoE. MoE to sit
in the committees that is deploying, transferring and promoting of teachers, headteachers and principals. |
| However, it is noted that the deployment, transfer and promotion of these teachers is done without consultation with MoE. | ||
| Accountability of heads teachers and principals | Currently head teachers and principals employed and deployed by TSC manage basic educations institutions but are not accountable to the MoE who is the owner and financier of the schools.
(i) The roles and responsibilities of a principal and head teacher include: – (ii) Organization and management of approved school curriculum; (iii) Management and control of school finances and stores; (iv) Management and motivation of human resource in the school; (v) Secretary of the school BOM and PTA; (vi) Management and maintenance of the school plant equipment; (vii) Teaching subjects of specialization. These roles and responsibilities are conferred to them by the MoE. However, for example, where there has been a case of mismanagement of funds or resources by a head teacher or principal, the Principal Secretary State Department of Basic Education at the MoE cannot hold the head teacher or principal to account, nor is he/she involved in their discipline. Similarly, TSC does not have the mandate to supervise financial management at the schools. |
TSC to employ and deploy the head teachers and principals in basic education
institutions who will be agents of MoE in the management of the institutions thus accountable to MoE as accounting and authorized officers. Framework should be borrowed from the Public Service Commission (PSC). |
| Thus, a provision be included in the Basic Education Act to state that head teacher and principals in a basic
education institution shall be agents of the MoE. |
| Disqualification of Chairperson and Members of the Commission | Section 8 (1) of the Act provides that within fourteen days of the commencement of this Act, or whenever a vacancy arises in the commission, the President in consultation with the Prime Minister shall by notice in the Gazette declare a vacancy and constitute a selection panel for the purpose of selecting suitable candidates for appointment as the chairperson or member of the commission. The phrase “within fourteen days of the commencement of this Act, has been overtaken by events and the post of Prime Minister has since been abolished. | 1. Amend Section 8 (1) to delete the phrase “within fourteen days of the commencement of this Act,
or” and “in consultation with the Prime Minister”. 2. Amend Section 8 (5) to include advertisement in the TSC website. 3. Delete the whole of Section 8 (17) of the TSC Act. 4. Amend Section 8 (18) of the TSC Act by deleting the phrase “in consultation with the Prime Minister may”. |
| Section 8 (5) of the Act provides that the selection panel shall, within seven days of convening, invite applications from persons who qualify for nomination and appointment as chairperson or member of the commission by advertisement in at least two daily newspapers of national circulation. Such should include advertisement in the TSC website with the current wide use of technology.
Section 8 (17) of the TSC Act provide that until after the first general election under the Constitution, the President shall in nominating persons for appointment as chairperson or member of the Commission act in consultation with the Prime Minister. The post of Prime Minister has since been abolished. |
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| Section 8 (18) provide that despite the foregoing provisions of this Section, the President, in consultation with the Prime Minister may – by notice in the Gazette, extend the period specified in respect of any matter under this Section by a period not exceeding twenty-one days. The post of Prime Minister has since been abolished. | ||
| Conduct of the Affairs of the Commission | Section 15 (3) of the Act provides that the commission may invite any person to attend any of its meetings and to participate in its deliberations, but such a person shall no right to vote at the meeting. The provision should be reworded for clarity.
Clause 2 of the Second Schedule of the Act provides that the quorum of a meeting of the commission shall be one half of members. In accordance with Mwongozo quorum of a meeting should be two thirds of the members. Clause 5 of the Second Schedule of the Act provides for instances where there may be conflict of interest. However, the provision is too detailed and is not well understood. |
1. Amend Section 15
(3) of the TSC Act to include the word “have” between shall and no. 2. Amend clause 2 of the Second Schedule to state that quorum shall be two thirds of the members. 3. Amend Clause 5 of the Second schedule to read “a member who has a direct or indirect interest in a matter being considered or to be considered |
| by the commission shall, as soon
as the relevant facts regarding the matter come to knowledge of the member, disclose the nature of such interest, and shall not be present during any deliberations on the matter.” |
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| Secretary of the Commission | Section 16 (5) & (6) of the Act provides for the duties and responsibilities of the Secretary. However, the Section as described is wordy and confusing as some of the duties and responsibilities given fall on other persons e.g. the SRC.
Section 17 (2) of the TSC Act provides for the procedure for removal of the Secretary. The terms and conditions indicated therein are not clear. |
1. Amend Section 16
(5) of the TSC Act to read as follows, “the Secretary shall be the chief executive of the commission, and shall be responsible for the management of the day-to-day activities of the commission, for clarity. 2. Delete Sub-Section (6) of Section 16 of the TSC Act. 3. Amend the whole of Section 17 of the TSC Act to read as follows: (1) the secretary may be removed from office by the commission, in accordance with the terms and conditions of service, for – 4. Amend Section 30 (3) of the TSC Act to include last known postal address or by electronic means. 5. Delete Section 31 (1) (a) of the TSC Act. inability to perform the functions of the office arising out of physical or mental incapacity; |
| gross misconduct or misbehavior; incompetence
or negligence of duty; or any other ground that would justify removal from office under the terms and conditions of service. (2) Before the secretary is removed under Sub-Section (1), the secretary shall be given an opportunity to defend himself or herself against any allegations against him or her. |
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| Appointment of members of its staff | Section 16 (6) of the TSC Act provides for the appointment of the members of staff taking into account: (a) persons with disabilities; and (b) regional and ethnic diversity of the people of Kenya. This is not all inclusive as provided for in the constitution. | Amend Section 16
(6) of the TSC Act to read “taking into account”. |
| The Register | Section 27 (e) of the Act provides that the commission shall not register a person as a teacher if such person is engaged in any activities which, in the opinion of the commission, are prejudicial to peace, good order or good government in Kenya. The provision is broad and subject to abuse.
Section 30 (1) (c) & (f) of the Act provides that the commission may, after inquiry, cause to be removed from the register the name of any person who has been convicted of a sexual offence or an offence against a pupil or student; and suffers from such physical or mental illness or infirmity which renders the person incapable of performing the duties of a teacher. The physical or mental illness or infirmity should be in the opinion of a registered medical practitioner who has the expertise to make such determination. Section 30 (3) of the Act provides that subject to the provisions of the Act, the removal of a teacher’s name from the register shall be notified by the commission to the person by registered mail addressed to his or her last known address. The option of use of electronic means is not provide for in the Act. |
1. Delete the whole of Section 27 (e) of the TSC Act.
2. Amend Section 30 (1) (c) of the TSC Act to replace the word phrase “pupil or student” with “learners”. 3. Amend Section 30 (1) (f) to read as follows: suffers from such physical or mental infirmity which in the opinion of a registered medical practitioner, renders the person incapable of performing the duties of a teacher. |
| Section 31 (1) (a) of the Act provides that where the name of any person has been removed from the register, the commission may, either of its own motion or on the application of the concerned teacher made in the prescribed manner, and in either case after observing due process, direct that
(a) the removal of that teacher’s name from the register be confirmed. |
4. Amend Section 31
(2) of the TSC Act by deleting “after the expiry of a period of eighteen months from the date of removal of the name from the register.” |
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| Section 31 (2) states that an application under Sub-Section (1) may only be made after the expiry of a period of eighteen months from the date of removal of the name from the register. The period is eighteen months is unreasonable and unjustifiable.
Section 31 (1) (a) of the Act provides that where the name of any person has been removed from the register, the commission may, either of its own motion or on the application of the concerned teacher made in the prescribed manner, and in either case after observing due process, direct that (a) the removal of that teacher’s name from the register be confirmed. Section 31 (2) states that an application under Sub-Section (1) may only be made after the expiry of a period of eighteen months from the date of removal of the name from the register. The period is eighteen months is unreasonable and unjustifiable. |
and replace with “after the expiry of a period of 6 months from the date of removal of the name from the register”.
7. TSC should be registered with the Office of the Data Commissioner subject to the Data Protection Act. |
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| Discipline of Registered Teachers | Section 33 (1) of the Act provides that the commission may, subject to the regulations made under the Act, take disciplinary action against any person registered as a teacher under the Act. The phrase “subject to the regulations made under the Act” means that a substantive law is subject to a subsidiary legislation.
Section 34 (3) (j) of the Act provides that the commission, after interdicting a teacher, may take disciplinary actions against a registered teacher undertake any other lawful action as it may consider appropriate. Use of the phrase “undertake” is erroneous The Third Schedule of the Act and TSC Code of Conduct and Ethics for Teachers Regulations 2015 on disciplinary offences provides for the list offences under the Act. However, some of the offences listed contradict other laws, such as the penal code and other offences as prescribed in other laws, e.g. the Sexual Offences Act and the Children’s Act have not been included. |
1. Amend Section
33 (1) of the TSC Act to read the commission may, take disciplinary action against any person registered as a teacher under this Act. The procedure is stipulated by the regulations under the Act. 2. Amend Section 34 (3) (j) of the TSC Act by deleting the phrase “undertake”. 3. Amend the Third Schedule of TSC Act and TSC (Code of Conduct and Ethics for Teachers) regulations 2015 on disciplinary offences. |
| Management of Information | Section 42 (5) of the Act provides that the right of access to information under Article 35 of the constitution shall be limited to the nature and extent specified under that Section. The constitution already provides for the limits on the right of access of information. | Delete Section 42 (5) of the TSC Act. |
| Appeal of the Decision of TSC | The Act does not make provision for appeal. Regulation 151 (1) of the code of regulation for teachers, provides that the discipline process will be administered at the Commission’s headquarters and at the county level, and regulation 156 (1) there is established an ad-hoc Committee of the Commission known as the Teachers Service Review Committee which shall consider and determine reviews arising from the discipline process under regulations. With the proposal that the EAT hear all appeals in the education sector, the Act should provide that appeals of the decision of TSC be made at the EAT. | Amend the TSC Act by introducing Section 46A to read
“a person aggrieved by the decision of TSC shall appeal to the EAT as provided for in the “Education Appeals Tribunal Bill.” |
