- The debate over JSS teachers’ trade-union membership has raised questions about freedom of association and voluntary membership.
- Article 36 and Article 41 of the Constitution and Sections 4 and 48 of the Labour Relations Act, 2007, address the right to join or leave a trade union.
- TSC has been urged to clarify whether deployment to JSS automatically confers union membership and the legal basis for union deductions.
The ongoing debate over the trade-union membership of Junior Secondary School (JSS) teachers raises an important question that deserves public discussion and clear clarification from the Teachers Service Commission (TSC): Can a teacher be compelled to belong to a particular teachers’ union without his or her consent?
Teachers’ trade unions, including the Kenya National Union of Teachers (KNUT) and the Kenya Union of Post Primary Education Teachers (KUPPET), play an important role in representing teachers, negotiating collective bargaining agreements and advocating for better terms and working conditions. Their role in the teaching profession is therefore important and should be respected.
However, union representation and individual union membership are two issues that should not necessarily be treated as one and the same.
What does the Constitution say?
The Constitution of Kenya, 2010 provides important protections concerning freedom of association.
Article 36(1) provides that:
“Every person has the right to freedom of association, which includes the right to form, join or participate in the activities of an association of any kind.”
More significantly, Article 36(2) states:
“A person shall not be compelled to join an association of any kind.”
The Constitution also provides specific protection to workers under Article 41. Article 41(2)(c) gives every worker the right:
“to form, join or participate in the activities and programmes of a trade union.”
The wording of these provisions raises a fundamental question: if joining a trade union is a constitutional right, can that right be transformed into a compulsory obligation simply because a teacher has been deployed to JSS?
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The JSS question
The transition and deployment of teachers to JSS have brought renewed attention to the question of whether teachers should belong to KNUT or KUPPET.
Understandably, questions of union recognition and collective bargaining must be addressed. TSC, as the employer, has relationships with recognised teachers’ unions, and collective bargaining requires clear arrangements concerning representation.
However, there is a distinction between recognising a union for collective bargaining purposes and compelling an individual teacher to become a member of that union.
A teacher may therefore reasonably ask: If I have not voluntarily joined a particular union, on what legal basis can I be treated as a member of that union?
This question becomes even more important where union dues are deducted from a teacher’s salary.
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What about union deductions?
The Labour Relations Act, 2007 provides the legal framework governing trade-union membership and the deduction of union dues.
Section 4 recognises an employee’s right to join a trade union and also the right to leave a trade union. Section 48 provides the framework for the deduction and remittance of trade-union dues.
Consequently, teachers deserve transparency regarding the basis upon which union deductions are made from their salaries, particularly where a teacher maintains that he or she has not voluntarily joined the relevant union.
A call for clarity, not confrontation
This debate should not be interpreted as an attack on either KNUT or KUPPET. Both unions have an important role in advancing teachers’ interests.
Neither should the debate be reduced to a question of which union is better.
The fundamental issue is freedom of association.
If there is a court order, recognition agreement, collective bargaining agreement or other legal instrument that determines how JSS teachers are represented, TSC should clearly communicate that legal position to the affected teachers.
Equally, if there are circumstances under which teachers may choose their union freely, teachers should be informed of that right and the procedure for exercising it.
Transparency would help eliminate uncertainty, suspicion and unnecessary conflict between teachers, their unions and their employer.
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The question TSC should answer
The Teachers Service Commission should therefore clarify publicly:
Does deployment or appointment to JSS automatically make a teacher a member of KNUT or KUPPET, even where the teacher has not voluntarily joined that union?
If the answer is yes, teachers deserve to know the precise constitutional and statutory basis for that position.
If the answer is no, then the Commission should clarify how teachers who have been automatically placed under a particular union’s membership records or subjected to union deductions can exercise their constitutional rights.
The Constitution is clear that freedom of association is a fundamental right. Article 36(2) expressly states that a person shall not be compelled to join an association of any kind.
The discussion about JSS teachers and trade unions should therefore be guided not by political, institutional or union rivalry, but by the Constitution, the Labour Relations Act, applicable court decisions and the rights of individual teachers. JSS teachers deserve clarity. TSC has the opportunity to provide it.
By Mwalimu Edwin Kundu Mutambo
Garissa, Bura East
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