High Court blocks TSC from enforcing social media rules for teachers

NAIROBI, Kenya, Oct 29 – The High Court has rejected an application by the Teachers Service Commission (TSC) seeking to lift orders suspending the implementation of a circular regulating teachers’ conduct on social media, dealing a setback to the commission’s efforts to enforce the rules.

The court upheld the conservatory orders after finding that petitioner Fredrick Ochieng Oduory had established a prima facie case that the circular could infringe on teachers’ constitutional right to freedom of expression because of its vague and restrictive provisions.

In its ruling, the court questioned the clarity of the guidelines, noting that they failed to specify the kind of online conduct that could expose teachers to disciplinary action.

The judge warned that the lack of clear definitions could leave teachers vulnerable to arbitrary enforcement by the commission.

“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 clear and specific guidelines on teachers’ online conduct instead of relying on blanket restrictions imposed through an administrative circular.

It noted that the existing legal framework already provides mechanisms for dealing with teachers who engage in professional misconduct, raising questions about the necessity and scope of the disputed restrictions.

The judge further emphasised that any limitation on freedom of expression must have a legal basis and meet the constitutional threshold of reasonableness and proportionality under Article 24 of the Constitution.

The petition also challenges the circular on grounds that TSC allegedly failed to conduct public participation or consult teachers and other affected stakeholders before issuing the directive.

The court observed that the commission had not disputed the absence of stakeholder consultation, raising concerns about compliance with Article 47 of the Constitution, which guarantees fair administrative action, and the Fair Administrative Action Act.

TSC had defended the circular, arguing that it was issued 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 lifting the existing orders would undermine the petition, which raises substantial constitutional questions concerning freedom of expression, public participation and the exercise of administrative authority.

The decision means TSC cannot implement the disputed circular while the conservatory orders remain in force, pending the hearing and determination of the substantive petition.

The ruling does not amount to a final determination of the circular’s constitutionality, with the court yet to make a conclusive decision on the legality of the restrictions.

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

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