For almost three years, Kenya’s courts have wrestled with a difficult constitutional question.
Should teachers remain in classrooms when they genuinely believe staying could cost them their lives?
Or should the State prioritise uninterrupted learning, even in regions stalked by terrorism?
On July 29, the Employment and Labour Relations Court delivered an answer that carefully balanced both interests.
In a landmark judgement, Justice Jemimah Keli ruled that the Teachers Service Commission (TSC) acted unfairly by disciplining non-local teachers who fled Mandera after escalating terrorist attacks without first guaranteeing their safety.
At the same time, the judge affirmed that the Commission retains constitutional authority to deploy teachers across the country where public need demands.
The ruling partly vindicates 122 teachers who left Mandera during the 2023 security crisis, arguing they feared becoming the next victims of extremist violence.
It also reinforces an equally important constitutional principle that children living in historically marginalised regions deserve the same access to education as every other Kenyan.
Crisis Unfolds
The dispute traces its origins to renewed insecurity that swept through Mandera in 2023.
In July that year, suspected Al-Shabaab militants attacked Wargadud Police Station, killing police officers and a non-local teacher before destroying communication infrastructure.
The incident reignited fears that teachers working near Kenya’s border with Somalia had long carried while serving in some of the country’s most volatile communities.
Within weeks, more than 200 non-local teachers travelled to Nairobi seeking transfers, saying they could no longer continue working under constant fear of attack.
Rather than approving mass transfers, TSC consulted security agencies before directing teachers to resume duty.
The Commission promised to deploy them to relatively safer urban centres within the region while maintaining classroom learning.
Most eventually returned. A smaller group refused.
Those teachers insisted that returning to Mandera, even after consultations, exposed them to unacceptable risks.
Their refusal ultimately resulted in interdictions, disciplinary proceedings and findings that they had deserted duty, prompting the constitutional petition before the court.
Teachers’ Case
Represented by the Kenya Teachers in Hardship and Arid Areas Welfare Association, the petitioners argued they had not abandoned duty out of defiance or negligence.
Instead, they told the court they had acted from the most basic human instinct, self-preservation.
The petition recounted deeply troubling experiences. Some teachers described surviving landmine explosions.
Others narrated witnessing militia attacks, hiding in bushes to evade terrorists, spending nights inside police camps and watching colleagues lose their lives while serving in Mandera.
The association argued that instead of investigating those complaints, TSC punished the affected teachers by withholding salaries, initiating disciplinary proceedings and eventually directing many of them back to the very stations they had fled.
The petitioners maintained that once life is lost, no constitutional right can restore it.
Consequently, they argued, the right to life must take precedence whenever genuine security threats arise.
TSC’s Defence
TSC urged the court to view the dispute through a different constitutional lens.
The Commission argued that every Kenyan child enjoys an equal right to basic education, regardless of where they live.
Its lawyers reminded the court that the affected teachers had voluntarily applied for vacancies specifically advertised for Mandera and Wajir, fully aware of the regions where they would serve.
The Commission further argued that transferring all non-local teachers would cripple learning in already understaffed schools while unfairly denying thousands of children access to education.
It also maintained that every affected teacher received show-cause notices, disciplinary hearings and opportunities to defend themselves before disciplinary decisions were reached.
Court’s Balance
Justice Keli agreed with part of TSC’s argument but rejected its ultimate conclusion.
The judge reaffirmed that TSC enjoys constitutional independence and broad managerial powers to recruit, deploy and transfer teachers.
Courts, she observed, should only interfere where constitutional rights are threatened and any intervention must remain proportionate.
However, the court held that procedural fairness alone could not justify decisions that ignored credible threats to life.
In one of the judgement’s strongest observations, Justice Keli declared that “the right to life is sacred.”
She found that the teachers’ fears were genuine and supported by evidence, including the undisputed killing of a fellow teacher during the 2023 Mandera attack.
The court concluded that disciplining educators before assuring their safety amounted to unfair administrative action.
Still, the judge declined to characterise the entire North Eastern region as unsafe.
While acknowledging Mandera’s serious security challenges, she found no evidence justifying a blanket condemnation of every county in the region.
The court also found insufficient evidence supporting claims that Christian teachers were systematically coerced into changing their religion.
Final Orders
Rather than ordering wholesale transfers outside North Eastern, the court endorsed TSC’s proposal to relocate the remaining teachers to Garissa County while excluding Hulugho Sub-County because of continuing insecurity.
The court quashed the disciplinary verdicts against the affected teachers and nullified the decision, reposting them to Mandera.
It further ordered TSC to transfer the remaining 22 teachers to Garissa within 30 days and directed the Commission to observe existing government policies governing hardship postings.
Justice Keli also awarded each of the 122 teachers KSh100,000 as compensation for violating their constitutional rights to life and fair administrative action.
However, the court declined to award salary arrears, holding that the teachers had not rendered services during the disputed period despite succeeding in their constitutional challenge.
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