The battle over salaries between MPs and the Salaries and Remuneration Commission is far from over.
If anything, it has only gotten worse.
Just two days after a committee of the National Assembly “quashed” the SRC decision concerning their remuneration, the Commission for the Implementation of the Constitution has come out to declare that the move was in vain.
And it did not stop there. The commission has moved to issue a warning to the Parliamentary Service Commission, which pays MPs, that it will be held responsible “for any loss of public funds occasioned by any illegal payments”.
The commission cites Article 226 of the Constitution on accounts and audit of public entities. The Article states in part 5 that if the holder of a public office, including a political office, directs or approves the use of public funds contrary to law or instructions, the person is liable for any loss arising from that use and shall make good the loss, whether the person remains the holder of the office or not.
CIC which, like SRC, has also been the subject of attack and recipient of angry outbursts from MPs over the salaries row, now says quashing the Gazette notices touching on the salaries is of no effect as the new salaries and benefits are already set and communicated to the institutions responsible for paying salaries and benefits.
CIC’s latest counter-declaration comes as MPs warm to lumpsum monthly pay of Sh851,000 from next week, reflecting a reversal of the stipulated payment of Sh532,500.
Sources within Parliament confirmed to the Sunday Nation that a good number of MPs have already taken salary advances as they look forward to a huge payday.
Members of the National Assembly were scheduled to take an 11-day break on Thursday, but they declined to proceed, with sources indicating that a motion on the report by the Committee on Delegated Legislation “quashing” the SRC remuneration package for the two Houses as the reason for their decision to stay on. The report is scheduled for discussion next week.
The MPs’ first salary is expected to be processed as soon as the National Assembly passes the motion––if it does.
But citing Article 226(5) as reference, CIC has warned all State institutions that any public officer who makes an unlawful payment of a salary and/or benefit to a State officer contrary to the determination by SRC will be held personally responsible.
The commission’s position is expected to ignite yet another round of tirades from the legislators who have vowed to do everything in their power to reinstate the salary and benefits that were paid to their predecessors in the Tenth Parliament.
The MPs have been united in supporting the salary changes. They have already indicated support for the report tabled by the Committee on Delegated Legislation which had been mandated to look into the constitutionality of the contentious Gazette notices that “stood in the way” of their fight for better remuneration.
The committee resolved that the National Assembly Remuneration Act (Cap 5) and the Parliamentary Pensions Act (Cap 196) of the Laws of Kenya should continue to govern the remuneration of MPs.
CIC, in a swift response, however, dismissed the conclusions made by the committee of Parliament arguing that the National Assembly Remuneration Act cannot be the basis of paying MPs’ salaries and benefits.
The commission argues that the Act is void under Article 2(4) to the extent that it is inconsistent with Article 230(1) of the Constitution.
“In any event as MPs arrange to vote on the motion on quashing the Gazette notice, they should note the provisions of Article 122(3) which provides that “a member shall not vote on any question in which the member has a pecuniary interest,” CIC warns in a paid advertisement in newspapers.
In question are Gazette Notice Nos 2885, 2886, 2887 and 2888 published by the Salaries and Remuneration Commission in the Gazette notice of March 1, 2013.
The Speaker of the National Assembly referred the matter to the 29-member select committee on May 2 following a petition that was tabled before the House by Mr Mithika Linturi (Igembe South, Jubilee) questioning the legality of the decision by the SRC to slash salaries paid to MPs.
The committee, chaired by Mr William Cheptumo, compiled a 30-page report after holding four sittings.
In the report, the committee takes issue with the ranking of State officers and the job evaluation of MPs which it declares as unconstitutional and accuses the commission of interference with the independence and internal workings of Parliament as well as with the constitutional role of the Parliamentary Service Commission.
In its wording, in principle it is improper and unreasonable for the remuneration of the State office of Member of Parliament to be set below those of State officers that are essentially subordinate to it and subject to its approval process and supervision.
“This is not good human resource practice because it shall undermine the constitutional role of oversight by Parliament and complicate the interaction between the National Assembly and the State offices that it is under a constitutional duty to superintend as the expression of the sovereignty of the people,” says the committee on page 16 of the report.
This was in response to SRC’s decision to place members of the National Assembly and Senate at positions 43 and 44, respectively, in the ranking order, a decision that offended the legislators.
In the SRC ranking, Cabinet Secretaries are ranked at number 6 followed by the Chief of Defence Forces, Judges, Principal Secretaries, Director General NSIS, Controller of Budget, and Chairpersons of Constitutional Commissions among other state officers.
MPs, however, have argued that the ranking was an insult to the institution of Parliament which mandates the National Assembly to review conduct in the office of the President and his deputy and other State officers and even further, to initiate the process of removing them from their offices.
They are also involved in vetting and approving the nomination of State officers prior to appointment, a role they argue places them high above the ranking ladder contrary to the SRC judgement.
“In effect the National Assembly plays the role of a supervisor to these State officers and superintends the State offices to ensure that they always comply with the law in the execution of their functions,” the report says.
The argument sustained by Parliament is that SRC has opened a large disparity in remuneration between the decision making organs of the three arms of government which, it says, clearly has the effect of disadvantaging one arm.
The report by the Committee on Delegated Legislation goes further to warn that the salaries commission should not be blind to this risk.
“If this imbalance is not addressed, the country runs the risk of losing all the gains made in the attainment of a sustainable and effective parliamentary democracy where the Legislature is able to operate and discharge its functions effectively and independently without bowing to the financial whims of the Executive,” it says.
Going by the consensus that has been expressed, the National Assembly is in support of the committee conclusions that declare the salaries commission Gazette notices unconstitutional.
But CIC says that while it recognises that members of the National Assembly and other State officers are well within their rights to demand a review of their salaries and benefits if not satisfied with the proposals by the salaries commission, it urges them to dialogue with the commission.