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 as a constitutional challenge proceeds.
In its ruling, the court dismissed TSC’s application to set aside the conservatory orders, finding that petitioner Fredrick Ochieng Oduory had presented a prima facie case raising concerns about the circular’s clarity and its potential impact on teachers’ freedom of expression.
The judge observed that the circular did not adequately specify the kind of online behaviour that could attract disciplinary action, leaving room for broad interpretation and potentially giving the commission excessive discretion when dealing with teachers.
“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’s concern centred on whether teachers could clearly understand the limits imposed by the circular and the consequences of violating them. It noted that any restrictions on constitutional rights must have a clear legal basis and meet the standards of reasonableness and proportionality set out under Article 24 of the Constitution.
Rather than relying on broad administrative restrictions, the judge advised TSC to develop more precise guidelines outlining acceptable online conduct for teachers.
The court also pointed out that existing laws and regulations already provide mechanisms for addressing professional misconduct, meaning the commission could pursue disciplinary action within the established legal framework.
Oduory’s petition further challenges the process through which the circular was issued, alleging that TSC failed to conduct public participation or consult teachers and other affected stakeholders before introducing the restrictions.
According to the court, TSC had not disputed the absence of stakeholder consultation, raising questions about whether the commission complied with constitutional requirements governing administrative decisions.
The concerns touch on Article 47 of the Constitution, which protects the right to fair administrative action, as well as the Fair Administrative Action Act.
TSC, in seeking to have the orders lifted, maintained that it had acted within its constitutional and statutory mandate to regulate the teaching profession and discipline teachers found to have engaged in misconduct.
However, the court found that removing the interim protections at this stage would undermine the petition, which raises substantial questions about freedom of expression, public participation and the limits of administrative authority.
The decision means the circular cannot be implemented while the conservatory orders remain in force, pending the hearing and determination of the substantive petition.
The ruling does not amount to a final finding that the circular is unconstitutional. Instead, the court has allowed the existing orders to remain in place as the parties prepare to argue the main case.
The matter is scheduled for mention on February 3, 2027, when further directions are expected. The court also directed parties that have yet to file 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.
