Personal interests at play in TSC deadlock

The Teachers Service Commission. Fresh controversy has hit the recruitment of the chairperson of the TSC following advertisement of the position a few days ago. PHOTO/FILE.

What you need to know:

  • Documents seen by the Sunday Nation show that top government officials have, in the process, breached the TSC Act No 20 of 2012.
  • The standoff has hindered the work of the commission that has a budget of about Sh156 billion and employs more than 300,000 teachers.
  • According to the TSC Act, the commission has seven functions, which include formulating policy, managing the payroll, and enforcing standards.

Attempted moves by top government officials to plant their allies at the Teachers’ Service Commission (TSC) are to blame for the stalemate at the agency.

Documents seen by the Sunday Nation show that top government officials have, in the process, breached the TSC Act No 20 of 2012, disregarded a court decision and advice from the Attorney-General’s office to stick to the rule of law in appointing TSC chairperson and commissioners, positions that have been vacant for close to 24 months now.

The standoff has hindered the work of the commission that has a budget of about Sh156 billion and employs more than 300,000 teachers countrywide.

Without a chair and full membership, the commission cannot perform some of its tasks.

According to the TSC Act, the commission has seven functions, which include formulating policy, managing the payroll, and enforcing standards.

In one of the documents, Attorney-General Githu Muigai advises TSC and Parliament to stick to the law through two letters sent to the two institutions in January last year, and March this year.

“As regards the existing vacancies, and for which a selection process has already been initiated, it behoves the President to draw fresh names of nominees from the list that has been prepared by the selection panel.

The issue of constituting a new selection panel to select candidates for the existing vacancies does not arise at all. A selection has already been constituted by the President as provided for by law,” says Prof Muigai in one of his letters.

His remarks are repeated in another letter signed on his behalf by the Solicitor-General Njee Muturi dated March 23 and addressed to Parliament.

In this letter, the AG gives legal advice to Parliament in a letter addressed to Majority Leader Aden Duale.

This is when the selection came up in Parliament after another attempt to hire the chairperson and commissioners failed.

However, earlier in January, Head of Public Service Joseph Kinyua had waded into the controversy, when he sought to disband the Prof James Kamunge panel constituted two years ago to interview and select the chair and commissioners to the TSC.

In a letter to the Kenya National Union of Teachers (Knut) and Kenya Union of Post-Primary Education Teachers (Kuppet) urging them to nominate members to the panel, the AG wrote: “As you are aware, the post of chairman and five members of Teachers’ Service Commission have been vacant for quite some time.

In accordance with the TSC Act, 2012, section 8 (1, 2), the President is mandated to constitute a selection panel which will oversee the appointment of a chairperson and members.”

TSC Secretary and Chief Executive Gabriel Lengoiboni, in a brief to Education Cabinet Secretary Jacob Kaimenyi, had advised that the selection panel can only be dissolved if all the names they selected are approved by Parliament, which did not happen.

“However in the event Parliament rejects all the nominees, then fresh advertisement and shortlisting should be undertaken by the selection panel,” said Mr Lengoiboni.

Two years ago, the process stalled after the Office of the President showed preference for Mr Kiragu wa Magochi despite a former Kenya Institute of Curriculum Development chief executive, Dr Lydia Nzomo, having led during the interviews.

President Mwai Kibaki had forwarded the name of Mr wa Magochi who had been rejected twice by the previous Parliament.

However, the selection was plunged into disagreements and later rejected by Parliament and subsequent court cases.

Currently, TSC has only three commissioners Cleophas Tirop, Saadia Kontoma and Salome Gichura. In September 2013, Parliament rejected lists of the chairperson and commissioners submitted by President Kenyatta.

Those rejected were Ms Jacinta Kapiyo, Mr Mwijuma Mwinyipembe, Mr James Muthuri, Mr Albert Ekirapa and Mr William Makubo.

The committee in its report said that Mr Makubo’s name was not among those forwarded to the President as he was position 16. Only 13 names are supposed to be handed to the President.

The House team also faulted the inclusion of Mr Mwinyipembe, noting that he had sat in an earlier panel for the same position.

On March 28 this year, Kenya National Association of Parents (Knap) gave a notice to sue the government regarding the TSC vacancies.

In a letter to the Attorney-General, Association Secretary-General Musau Ndunda stated that the government was to blame for the continuous violation of the law by allowing TSC to engage in illegalities.

“The government has failed to comply with Section 13 of the Act by reconstituting the original selection panel because it can only stand dissolved upon appointment of the chairperson and members under subsection (10),” said Ndunda in the letter.

Former Head of Public Service Francis Kimemia had indicated that Dr Nzomo failed to make it to the list to Parliament due to integrity issues that he did not disclose. However, a ruling by Justice David Majanja on July 22, 2013 indicated no evidence of lack of integrity had been demonstrated on the part of Dr Nzomo.

“In any case, it is the Selection Panel, the President and the National Assembly, acting on any material before them to address the issue of integrity of any applicant. Nothing has been placed before this court to show that the institutions dealing with integrity have failed to act on any complaint or material concerning the integrity of the 3rd respondent (Dr. Nzomo),” said Justice Majanja.

The Court considered the matter of fresh nominations from amongst the persons shortlisted and forwarded by the selection panel and in a judgment delivered on 25th March 2013 it stated, “[24] the submission of a list, in so far as it contained names of persons rejected by the National Assembly did not constitute “fresh nominations” and was therefore in breach of section 8(11) of the Teachers Service Commission Act and is to that extent set aside.”

The court ruled that the OP did not submit fresh names as it only submitted the name of Kiragu Wa Magochi which had been rejected twice at that time.

To meet constitutional requirement required of nine, TSC needs five commissioners plus a chairman. Currently they have three.The three are Prof Salome Gichura, Ms Saadia Kontoma and Cleophas Tirop.

Justice Majanja ruled: “I find and hold that the selection of the five members of the Commission shall be by a fresh Selection Panel constituted for that purpose.”

Mr Justice David Majanja directed the Office of the President to constitute a fresh panel to hire the 5 new officials.

The judge argued the panel picked by the government ‘exhibited no mandate in the recruitment of the five TSC commissioners’.

“By the time the positions became vacant, the (James) Kamunge Panel was already in existence, having been formed in 2012.

It is, therefore, as clear as day that the Kamunge Panel pre-dates the five vacancies occasioned by the retirement of the five members. I, therefore, find that the panel contemplated is a new panel and not the Kamunge Panel,” said Justice Majanja.