Court upholds suspension of TSC social media circular over free speech concerns
The High Court has declined to lift orders suspending the implementation of a Teachers Service Commission (TSC) circular regulating teachers’ conduct on social media, ruling that the petition challenging the guidelines raises substantial constitutional questions.
In its ruling, the court dismissed TSC’s application seeking to set aside the conservatory orders, finding that petitioner Fredrick Ochieng Oduor had established a prima facie case that the circular could infringe teachers’ constitutional right to freedom of expression.
The judge observed that the circular did not sufficiently define the online conduct that could expose teachers to disciplinary action, potentially granting 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 clear and specific guidelines on teachers’ online conduct instead of imposing broad restrictions through an administrative circular.
It noted that the existing legal framework already provides mechanisms for addressing professional misconduct among teachers.
The judge further held that any limitation on freedom of expression must be prescribed by law and meet the constitutional tests of reasonableness and proportionality under Article 24 of the Constitution.
The petition also challenges the circular over alleged failure by TSC to conduct public participation or consult teachers and other affected stakeholders before issuing the guidelines.
According to the court, TSC had not disputed the absence of stakeholder consultation, raising questions about compliance with Article 47 of the Constitution and the Fair Administrative Action Act.
The provisions require administrative decisions to meet standards of fairness and lawful procedure.
TSC had argued that it issued the circular 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 at this stage would undermine the petition, which raises significant questions about constitutional rights, public participation and the exercise of administrative authority.
The ruling means the suspension of the circular’s implementation remains in force pending the hearing and determination of the substantive petition.
The decision does not amount to a final ruling on the constitutionality of the circular, with the court yet to determine the petition on its merits.
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.
