The High Court has declined to lift orders suspending the implementation of a Teachers Service Commission (TSC) circular regulating teachers’ conduct on social media, allowing the restrictions to remain on hold pending determination of a constitutional petition.
In its ruling, the court dismissed TSC’s application to set aside the conservatory orders, finding that petitioner Fredrick Ochieng Oduory had established a prima facie case questioning the circular’s clarity and its potential impact on teachers’ freedom of expression.
The judge observed that the circular did not clearly specify the online conduct that could expose teachers to disciplinary action, raising concerns that it could give 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 instead of relying on broad restrictions through an administrative circular. It noted that existing laws already provide mechanisms for disciplining teachers over professional misconduct.
The judge further held that any limitation on freedom of expression must be grounded in law and meet 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 issuing it.
According to the court, TSC had not disputed the absence of stakeholder consultations, raising questions about compliance with Article 47 of the Constitution and the Fair Administrative Action Act.
TSC had argued that the circular fell within its constitutional and statutory mandate to regulate the teaching profession and discipline teachers for misconduct.
However, the court found that lifting the orders would undermine the petition, which raises questions about constitutional rights, public participation and the exercise of administrative authority.
The ruling does not amount to a final determination of the circular’s constitutionality. The orders suspending its implementation will remain in force until the substantive petition is heard and determined.
The matter will be mentioned on February 3, 2027, for further directions. The court also directed parties that had not filed responses to the petition to do so before the next appearance.
Abdihakim Guyyo, Brance Odhiambo, Rajab Shaaban and Abdul Nassir appeared for the petitioner.
