There is need for greater transparency in TSC’s recruitment, promotion, transfer and disciplinary processes to strengthen accountability and public confidence among teachers.
The Teachers Service Commission (TSC) occupies a unique and constitutionally protected position in Kenya’s public sector. Established under Article 237 of the Constitution, the Commission is mandated to register, recruit, employ, assign, promote and transfer teachers, exercise disciplinary control over them, and terminate their employment where necessary. TSC itself describes its institution as an independent Commission established under the Constitution to manage human resources in the education sector.
But an important question deserves open and honest discussion: how independent is TSC in the actual discharge of its functions? This is not a question about whether TSC exists as an independent constitutional commission, since it clearly does. The question is whether its operational, administrative and decision-making independence is always reflected in practice. Article 249(2) of the Constitution is unequivocal: constitutional commissions are subject only to the Constitution and the law and are independent and not subject to the direction or control of any person or authority. The purpose of this provision is to protect commissions from improper interference and enable them to perform their mandates objectively. Yet the relationship between TSC and other government institutions sometimes raises legitimate questions about where institutional independence ends and external influence begins.
Independence is not merely the word used to describe an institution; it must be visible in the way decisions are made. A genuinely independent TSC should be able to make decisions concerning teachers based primarily on the law, established policies, professional considerations and the public interest, rather than on political, administrative or other external pressures. This becomes particularly important in matters such as teacher recruitment, deployment, promotion, transfers, disciplinary action, remuneration and implementation of collective agreements. The Teachers Service Commission Act gives TSC significant powers in these areas, including responsibility for career progression, professional development, payroll management and monitoring the conduct and performance of teachers. Consequently, whenever teachers perceive that decisions affecting their careers are being influenced by considerations other than law, policy and merit, questions about institutional independence naturally arise.
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There is, however, an important distinction. Independence does not mean that TSC should operate in isolation from the rest of government. The courts have recognised that constitutional commissions may need to consult and coordinate with other institutions to perform their mandates effectively. In the well-known TSC-KNUT litigation, the court explained that independence does not mean detachment or disengagement from other institutions. For example, TSC must operate within the broader constitutional and fiscal framework of the State, and its relationship with the Salaries and Remuneration Commission (SRC) illustrates this reality, with the courts having held that SRC has a constitutional advisory role on remuneration matters involving public officers, including teachers. The existence of such relationships does not, by itself, destroy TSC’s independence. The concern arises when consultation becomes control, coordination becomes direction, or cooperation becomes interference. That is where the debate about TSC’s independence becomes legitimate.
Another area worth examining is the manner in which commissioners are appointed. Under Article 250 of the Constitution, commissioners are identified and recommended for appointment through a process prescribed by legislation, approved by the National Assembly and appointed by the President. This constitutional arrangement does not automatically make TSC an extension of the Executive, and the Constitution contains safeguards intended to protect commissions from improper interference. Nevertheless, the appointment process inevitably creates room for public debate about whether commissioners can exercise complete independence after appointment. The public is therefore entitled to ask whether commissioners feel sufficiently protected to make unpopular decisions when those decisions are required by law, which is not an accusation but a legitimate governance question.
The importance of TSC’s independence cannot be overstated because the Commission is not merely another government department; it is the employer and regulator of teachers in public schools, and its decisions directly affect hundreds of thousands of professionals and, ultimately, millions of Kenyan learners. If teachers believe that promotion, deployment, transfer, discipline or other employment decisions can be influenced by political considerations, personal connections or external pressure, public confidence in the Commission suffers. Conversely, if TSC makes decisions transparently, consistently and according to objective criteria, even when those decisions are unpopular, it strengthens its constitutional legitimacy.
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There is another side to the argument. TSC cannot invoke independence as a shield against legitimate scrutiny, and the courts have made it clear that independence does not give constitutional commissions unlimited freedom to act outside the law. Independence exists for the purpose of enabling a commission to fulfil its lawful mandate, not for the purpose of avoiding accountability. TSC is therefore expected to comply with the Constitution, legislation, principles of public service and the national values of good governance. Article 232, for example, requires public institutions to uphold professional ethics, efficient and effective use of resources, responsive and impartial service, accountability, transparency and merit in appointments and promotions. Thus, the proper question is not simply whether TSC is independent, but whether it is independent, accountable and transparent enough to inspire confidence among the teachers it serves.
Ultimately, institutional independence should be judged not only by constitutional language but also by institutional behaviour. A teacher who receives a promotion based on clear and published criteria sees independence differently from a teacher who believes that personal connections determine career progression. A teacher whose disciplinary case is handled fairly and promptly experiences institutional independence differently from one who believes that disciplinary procedures are applied selectively. Likewise, a teacher who can challenge an administrative decision through a transparent and impartial process has greater confidence in the institution than one who feels that decisions are predetermined. These experiences matter.
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Rather than simply declaring that TSC is independent, the Commission should continuously demonstrate that independence through transparent decision-making. There should be clear and publicly understandable criteria for recruitment, promotion, transfer and disciplinary action. Complaints should be handled promptly, decisions affecting teachers should be properly explained, and where the law provides avenues for review or appeal, those mechanisms should be accessible and effective. Most importantly, TSC should jealously protect its constitutional space while maintaining appropriate and lawful cooperation with other state institutions.
The independence of the Teachers Service Commission is constitutionally guaranteed, but constitutional guarantees must be reflected in institutional practice. There is therefore nothing unreasonable about questioning whether TSC always enjoys and exercises the full operational independence contemplated by Article 249 of the Constitution. The question should not be treated as an attack on the Commission; on the contrary, asking difficult questions about independence, accountability and transparency is part of protecting the very constitutional order that created TSC. An independent TSC should neither be controlled by external interests nor operate beyond scrutiny. It should be independent enough to make lawful decisions, transparent enough to explain them, and accountable enough to earn the confidence of Kenya’s teachers and the public. That is the standard by which its independence should ultimately be judged.
By Solomon Weru
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