Blow to TSC as court allows teachers to use social media

Teachers Service Commission issued a circular cautioning teachers about the use of social media. [File, Standard]

Teachers can continue entertaining netizens on social media without fear of sanctions from their employer.

This is after High Court Judge Francis Kyambia extended the orders suspending the circular issued by the Teachers Service Commission (TSC) until the case filed before him is heard and determined.

From the foregoing, it is clear that conservatory orders are not only intended to aid the party who has filed the petition, but to preserve the status quo that is being challenged. In this case, the petitioner has raised issues of public participation, the need for the 2nd respondent to uphold and promote constitutional imperative in carrying out its regulatory mandate.

Without delving into the merits of the petition herein, discharging the conservatory orders issued herein will render the petition nugatory,” ruled Justice Kyambia.

The case was filed by Fredrick Oduory.

His lawyers Abdulrasil Mohamed, Brance Ken, Boru Guyyo and Rajab Shaaban told the court that the move was against teachers’ right to express themselves and link with the world through creative means.

“Teaching is one of the most noble professions one can pursue. Teachers selflessly impart knowledge and shape generations, often without recognition. Their contribution to society is profound and enduring. It is therefore incumbent upon the Court to jealously guard the rights and dignity of teachers where they face unlawful or unconstitutional directives, and to ensure that the rule of law prevails,” the battery of lawyers led by Mohamed argued.

The commission raised concerns over teachers posting photographs, videos or personal information involving learners without parental consent, warning that such exposure could breach data protection requirements regardless of whether the content is meant to be educational or promotional.

It further cited cases involving cyberbullying, harassment, intimidation, hate speech, ethnic incitement and the spread of offensive material that could damage the profession's reputation.

However, in court, Oduory argued that the commission issued a vague and blanket ban without justification.

He insisted that although TSC had raised concerns about learners, the circular did not cite any instances or incidents where there were such violations.

Oduory argued that the commission had become the complainant, the prosecutor, the judge and the jury. He insisted that social media users were well aware of the consequences of violations, which were beyond the commission’s mandate.

None of the TSC employees, he added, had been found using Tik Tok, Facebook, X or Instagram during teaching hours.

He was of the view that TSC should leave the violators to court if and when a complaint is raised.

“The first respondent's circular directly assumes powers of adjudication and sanction over teachers' conduct on social media, a role properly and exclusively reserved for courts of law and other bodies established by law, and does so through vague and undefined standards that fail the test of legality under Article 24(1)(a) of the Constitution and were promulgated without the consultation required under the Statutory Instruments Act, 2013,” argued Mohamed.

Oduor lamented that the teachers’ employer had discriminated against them as no other government agency had sent such a directive. He observed that police officers and other civil servants were among millions of social media content creators and users.

He averred that it would be against the freedom of expression granted to the 3000 teachers.,

“The balance of convenience favours the grant of the conservatory orders sought, as no prejudice shall be occasioned to the respondents by the suspension of the impugned circular pending the hearing of the petition, whereas the applicant and all teachers in the Republic shall continue to suffer a chilling effect on their constitutional rights and exposure to disciplinary jeopardy if the orders are not granted,” he said.

Oduory explained that he is a teacher. He was of the view that the commission had turned into social media police without a clear-cut explanation on what it was targeting.

He was of the view that none of the unions had been consulted before a decision was arrived at.

The teacher further argued that the net effect was to create a chilling effect on all teachers out of fear of undefined disciplinary consequences.

“The first respondent cannot, through an administrative circular, impose restrictions upon constitutionally protected expression beyond what is authorized by law or in a manner that circumvents the safeguards prescribed by the Constitution,” he argued, adding that the commission had left them hanging on what was to happen after.

“As a direct consequence of the impugned Circular, other teachers and I are apprehensive that lawful expression and participation in public discourse on social media may expose us to disciplinary action,” added Oduory.

In response, TSC claimed that the orders were issued without its participation. It argued that the issues raised were internal, and between employers and employees.

It insisted that the court had no powers to intervene.