TSC circular on social media conduct could violate teachers’ rights – High Court

The High Court has dealt a blow to the Teachers Service Commission (TSC) after dismissing its application seeking to lift conservatory orders suspending the implementation of a circular regulating teachers’ conduct on social media.

In its ruling, the court upheld the existing orders, finding that the petitioner Fredrick Ochieng Oduor had established a prima facie case that the circular was vague, restrictive and could violate teachers’ constitutional right to freedom of expression.

The judge noted that the circular failed to clearly define the online conduct that could expose teachers to disciplinary action, potentially giving the commission excessive discretion in enforcing the restrictions.

“What is clear from the circular is that the same does not sufficiently define or particularise the conduct which may expose teachers to disciplinary action,” the court ruled.

The court advised TSC to develop specific guidelines on teachers’ online conduct rather than impose blanket restrictions through an administrative circular, noting that the existing legal framework already provides mechanisms for disciplining teachers who engage in misconduct.

The judge further held that any limitation on freedom of expression must be grounded in law and satisfy the constitutional requirements of reasonableness and proportionality under Article 24 of the Constitution.

The petition also challenges the circular over the alleged failure by TSC to conduct public participation or consult teachers and other affected stakeholders before its issuance.

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The court noted that TSC had not disputed the absence of stakeholder consultation, raising concerns over compliance with Article 47 of the Constitution and the Fair Administrative Action Act.

TSC had argued that the circular was issued within its constitutional and statutory mandate to regulate the teaching profession and discipline teachers for misconduct.

However, the court found that lifting the conservatory orders would undermine the petition, which raises significant questions about constitutional rights, public participation and the exercise of administrative authority.

The dismissal means the orders suspending implementation of the circular remain in force pending the hearing and determination of the substantive petition. The ruling does not, however, amount to a final determination of the circular’s constitutionality.

The matter will be mentioned on February 3, 2027, for further directions. The court also directed parties that had not filed their responses to the petition to do so before the next appearance.

Abdihakim Guyyo, Brance Odhiambo, Rajab Shaaban and Abdul Nassir appeared for the petitioner.

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