The High Court has rejected an application by the Teachers Service Commission (TSC) seeking to lift conservatory orders suspending the implementation of a circular regulating teachers’ conduct on social media.
The decision allows the existing orders to remain in force pending the hearing and determination of a petition challenging the legality and constitutionality of the circular.
In its ruling, the court found that petitioner Fredrick Ochieng Oduor had established a prima facie case that the directive was vague and potentially restrictive of teachers’ constitutional right to freedom of expression.
The judge observed that the circular did not clearly specify the type of online conduct that could attract disciplinary action, leaving room for the commission to exercise 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 formulate clear and specific guidelines governing teachers’ online conduct instead of relying on broad administrative restrictions.
It further noted that the existing legal framework already provides mechanisms for addressing professional misconduct among teachers.
The judge emphasised that any restriction on freedom of expression must have a legal basis and meet the constitutional standards of reasonableness and proportionality set out under Article 24 of the Constitution.
The petition also questions the process through which the circular was issued, with the petitioner alleging that TSC failed to conduct public participation or consult teachers and other stakeholders who would be affected by the directive.
According to the court, the commission had not disputed the absence of stakeholder consultations, raising questions about compliance with Article 47 of the Constitution and the Fair Administrative Action Act.
These provisions safeguard the right to fair administrative action and require public authorities to exercise their powers lawfully and fairly.
In its defence, TSC maintained that the circular had been issued within its constitutional and statutory mandate to regulate the teaching profession and discipline teachers found guilty of misconduct.
However, the court found that lifting the conservatory orders at this stage would undermine the petition, which raises substantial questions concerning constitutional rights, public participation and the exercise of administrative authority.
The ruling means TSC cannot implement the contested circular while the suspension orders remain in force.
However, the decision does not constitute a final determination on the constitutionality of the directive. The court will make that determination after hearing and resolving the substantive petition.
The matter is scheduled to be mentioned on February 3, 2027, for further directions.
