Why TSC's suspended social media circular has sparked a legal fight

Advocate of the High Court Abdul Nassir has challenged the Teachers Service Commission (TSC) over its attempt to regulate teachers’ use of social media, arguing that the directive threatens their constitutional right to express opinions, expose wrongdoing and participate in public debates.

Nassir said the commission's August 13, 2026 circular placed excessive restrictions on teachers' online activities and risked punishing educators for expressing views that are protected under Article 33 of the Constitution.

Speaking on Radio Generation on Friday, November 6, Nassir questioned the legal basis for imposing broad restrictions on teachers' social media activities, arguing that their professional responsibilities should not prevent them from exercising their constitutional freedoms.

He maintained that teachers should be allowed to use digital platforms to communicate important messages, challenge actions they consider wrong and contribute to discussions on issues affecting society without fear of disciplinary measures, provided their expressions remain within the law.

Citing platforms such as TikTok, Nassir argued that teachers can use creative content to pass messages to the public and their students, adding that such forms of communication should not automatically be treated as professional misconduct.

"The broad base argument in terms of that circular, it defeats every purpose of what we call Article 33, the right to express yourself. Teachers are the best of artists. They reveal messages to the wider public or the students they have through artistic methods. If today a teacher can go to TikTok and do a video that is going to condemn a certain act in public, we must protect that freedom to do that," Nassir said.

The disagreement centres on Circular No. 14/2026, titled Prohibition of Unprofessional Conduct on Social Media Platforms and Cyberbullying, which was issued by TSC Acting Secretary and Chief Executive Officer Evaleen Mitei on August 13, 2026.

The circular was sent to regional directors, county directors and teachers following concerns raised by the commission over what it described as growing cases of unprofessional behaviour by educators on social media.

It warned teachers against cyberbullying, harassment, intimidation, sharing offensive material and other forms of online misconduct, cautioning that such behaviour could lead to disciplinary action.

In defending the directive, TSC referred to constitutional provisions protecting freedom of expression, the right to privacy and children's interests, as well as existing laws regulating professional conduct, data protection and cybercrime.

The commission maintained that constitutional protection of free speech does not give teachers the right to engage in hate speech, incite violence, promote discrimination or circulate other forms of prohibited content.

However, the circular was challenged in court by teacher Fredrick Ochieng Oduory, who filed a case at the High Court in Kiambu, arguing that its broad provisions could leave teachers vulnerable to disciplinary action even when exercising their lawful constitutional rights.

Oduory also questioned the process through which the directive was introduced, arguing that teachers and other affected stakeholders had not been adequately consulted before the commission issued it.

On August 21, 2026, Justice Francis Nyungu Kyambia suspended the implementation of the circular through conservatory orders, pending the hearing and determination of the application challenging it.

The court orders followed arguments that the directive imposed wide restrictions on teachers' online activities without clearly explaining what amounted to unprofessional conduct, potentially exposing educators to arbitrary disciplinary measures.

Explaining the progress of the case, Nassir said the legal challenge consisted of two separate processes, namely the application seeking conservatory orders and the substantive constitutional petition.

He noted that the court had already handled the preliminary application and granted the orders stopping implementation of the circular, but the main petition would require a separate determination of the constitutional issues raised.

"We filed an application for conservatory orders and a substantive petition. So this case has been finalised at the preliminary stage of the application. The conservatory orders were issued, and we argued this matter before the Kiambu High Court. The petition is another issue on its own because the petition carries weighty constitutional violations that our client is alleging that this circular, if it remains in place, is going to hurt the freedom of expression of teachers," he said.

Following the suspension, TSC moved to have the court orders lifted, arguing that the circular had not created new disciplinary offences or introduced an additional system for regulating teachers.

Instead, the commission maintained that it was simply reminding educators of professional responsibilities already provided for under the Constitution, the Teachers Service Commission Act, the Code of Regulations for Teachers and the Code of Conduct and Ethics for Teachers.

However, the commission's efforts to have the suspension overturned were unsuccessful.

On October 29, 2026, the High Court declined to lift the conservatory orders, meaning the circular would remain suspended as the substantive petition proceeds through the courts.

In its ruling, the court raised concerns about the lack of clear definitions of the conduct that could attract disciplinary action under the directive, noting that the wording could give the commission wide discretion when deciding what amounts to unprofessional behaviour online.

The court also questioned whether adequate consultations had been conducted before the circular was issued and whether the commission had complied with constitutional requirements governing administrative decisions.

Although the ruling did not make a final determination on the constitutionality of the directive, it allowed the suspension to remain in force until the main petition is determined.

The case is scheduled for further directions on February 3, 2027.

Beyond the constitutional concerns, Nassir questioned why TSC needed to introduce the circular when the country already has laws addressing cyberbullying, harassment and other offences committed through digital platforms.

He specifically pointed to the Computer Misuse and Cybercrimes Act, 2018, arguing that the legislation already provides a legal framework for dealing with unlawful conduct on social media.

Nassir said the commission should rely on existing laws rather than introduce administrative restrictions whose broad wording could create confusion over the limits of teachers' constitutional freedoms.

He further challenged TSC's position that the suspension of the circular could disrupt its operations, particularly its responsibilities in managing teachers' professional affairs and promotions.

According to Nassir, the argument that the commission's work would be affected was difficult to justify because the suspended directive did not address the promotion of teachers.

He questioned how stopping the implementation of a circular focused on social media conduct could interfere with the commission's core responsibilities.

"One of the primary issues TSC deals with is promotion of teachers. If you are telling us that this circular, the impugned circular that has now been suspended pending determination of the petition, is going to cripple TSC operations, we told the court, no, this is not fair. How can they be crippled if promotion of teachers has not been addressed in this circular?"

Nassir added that the court challenge was intended to safeguard the constitutional rights of more than 450,000 teachers serving under the commission.

The substantive petition will now determine whether TSC acted within its constitutional and legal powers when it issued the directive and whether the restrictions it sought to introduce meet the requirements for limiting freedom of expression.

In the meantime, the circular remains suspended, although teachers are still required to observe existing professional regulations and laws governing cyberbullying, harassment and other forms of unlawful conduct.