In a letter (below) to the Judicial Service Commission seen by Kenya Today, Human Rights activist Ndung’u Wainaina raises fundamental constitutional issues with the conduct of justice Nelson Abuodha regarding his orders to KNUT and KUPPET to end strike.
Judicial Service Commission
Through Chairperson Dr. Willy Mutunga Chief Justice and President Supreme Court of Kenya
Date: October 3, 2015
RE: COMPLAIN AGAINST JUSTICE NELSON ABUODHA ORDERS TO TEACHERS
Teachers in public schools have been on legal strike since September 2, 2105. The strike was occasioned by Teachers Service Commission (TSC) to failure to obey court orders.
The Employment and Labour Relations Court issued the court orders on June 30, 2015 directing the TSC to pay teachers a basic salary increment of 50-60 per cent. The raise is due from July 1, 2013 to June 30, 2017 and was to take effect immediately.
Teachers had gone on strike earlier on January 2015. However, when the court directed them to resume duty as it handles their case they obliged. On July 25, 2015, Teachers Service Commission went to the Court of Appeal seeking the court nullification of the Employment and Labour Relations Court decision. Court of Appeal judges directed Teachers Service Commission (TSC) to effect the 50 to 60 per cent increase by August 1 and continue paying until an appeal that the commission has filed before them is heard and determined.
On August 2, 2015, Teachers Service Commission filed a petition at the Supreme Court seeking to stop the previous court decision that awarded teachers a salary increment.
On August 24, 2015, The Supreme Court said it had no jurisdiction to rule against the decision by the Court of Appeal. The Teachers Service Commission went back to the Employment and Labour Relations Court seeking to court orders declaring teachers strike illegal. This application was blatant abuse of the court process by the Teachers Service Commission and the office of the Attorney General. Employment and Labour Relations Court declined to stop the ongoing teachers strike.
On September 25, 2015 Justice Nelson Abuodha ruled that teachers strike was legal, which was the only issue he was to make determination on. However, he went further to issue orders directing teachers to suspend their strike for 90 days and within 30 days Ministry of Labour constitute a conciliation committee. Judge decision had the following problems:
1. The fresh application Petition 72 of 2015 filed by Teachers Service Commission and Attorney General was a direct affront and abuse of the court process
2. The judge was full aware that Court of Appeal was sized of the matter and had given specific orders to the Teachers Service Commission
3. The judge was aware that Supreme Court had ruled that the dispute was under the jurisdiction of the Court of Appeal
4. The judge knew that Teachers Service Commission was in contempt of the orders used by the Employment and Labour Relations Court and that those of the Court of Appeal.
5. The judge had full knowledge that the strike was prolonging because the Teachers Service Commission and Executive had disregarded the directives of both Employment Court and Court of Appeal of paying teachers salary increment beginning August 1, 2015.
In this regard Justice Abuodhaâ€™s orders to the teachers had the following implications: (a) Direct manifestation of executive arm of the state interference with functional responsibility of the court (b) Assisting, abating and facilitating Teachers Service Commission and Executive to continue abusing the court process and disobeying courts (c) Dealt judiciary significant blow on its credibility, integrity, independence and legitimacy (d) Promoting impunity of Executive and its agencies by disobeying court orders . (e) Buttress Executive and its agency( TSC) attempt to use courts to halt teachers’ strike after failing to honour its own offer(50-60%) and the subsequent courtsâ€™ orders (f) Gave the Executive and its agency space to turn role of courts to that of stopping legal strike emanating from Executive and its agency( TSC) intransigence, arrogance and contempt to meet its obligation.
Consequently, this petition is filed to find that Justice Nelson Abuodha orders to teachers without considering decisions of Court of Appeal and Supreme Court were:
1. Made beyond err of the law
2. Demonstration of incompetence
3. Clearly strengthen Executive and its agency ( TSC) to disobey court orders, disregard Constitution and its obligations with contempt, arrogance and intransigence.
Judicial Service Commission is requested to commence expeditious investigations into the conduct of Justice Neslon Abuodha and take appropriate action against him. This petition is in enforcement of Articles 37 and 168 of the Constitution and the enforcement of the judicial officersâ€™ accountability.
Sincerely Ndungâ€™u Wainaina