Parliament staff warned over high pay for MPs

Parliamentary staff have been given a stark warning: If they dare pay MPs higher salaries, they will be prosecuted and surcharged.

The Salaries and Remuneration Commission (SRC) on Wednesday warned Parliamentary Service Commission officers that if they implement a pay rise for MPs, they will be prosecuted in their personal capacities.

SRC is mandated by the Constitution to set the salaries of all public officials, including members of Parliament.

Parliamentary staff were advised to pay MPs in accordance with the Legal Notice published in the Kenya Gazette by the salaries team.

MPs have since declared the notice illegal, though they have no constitutional mandate to make such a determination.

The Commission for the Implementation of the Constitution had warned the MPs that should they accept a pay increase, the money will be recovered from them.

President Kenyatta weighed in on the issue to urge for calm and dialogue, while pointedly observing that the job of fixing MPs’ salaries constitutionally belongs to SRC.

Said Mr Kenyatta: “While acknowledging the independence of our Parliament, the Constitution explicitly mandates the Salaries and Remuneration Commission to set and review the salaries of all state officers,” the President said.

Kenyans expected independent constitutional institutions, including Parliament, to respect the institutional arrangements and division of mandates in the Constitution.

“This continuing paralysis is not in the national interest and it is imperative that this matter be brought to an appropriate and sustainable conclusion within the law.

“I therefore urge Parliament to engage the Salaries and Remuneration Commission in a constructive manner with a view to resolving this matter,” he said, adding: “For the avoidance of doubt, all state officers in the Executive will continue to abide by the determination of the Salaries and Remuneration Commission.”

Earlier at a news conference at the SRC offices in Nairobi, the chairperson, Mrs Sarah Serem, said the revocation of the Legal Notices published by the commission had no effect because the commission derives its powers from the Constitution.

She said SRC did its job as per article 230 of the Constitution — to set the salaries of State officers.

“With that in mind, we operated within the law and therefore anybody who acts outside this law in pursuant of payment will have acted unlawfully and faces the risk of being held liable for abuse of office and aiding in the misuse of public funds,” she said.

Judicial interpretation

At another news conference, the chairman of the CIC, Mr Charles Nyachae added: “When SRC set the remuneration and benefits of State officers and communicated the same through the said Gazette Notices, those terms became effective. Thereafter, those terms can only be changed by the SRC itself reviewing them, or pursuant to judicial intervention”.

Mr Nyachae said the National Assembly Remuneration Act “is not applicable” if there’s any inconsistency with the Constitution.

That was a direct warning to the accounting officers of Parliament — the two Clerks, Mr Justin Bundi (National Assembly) and Mr Jeremiah Nyegenye (Senate) — that they will end up in court if they agree to pay the MPs Sh851,000 as stipulated in the National Assembly Remuneration Act.

Instead, the commissions took the view that the MPs should be paid Sh532,500 for every month worked.

“CIC will institute proceedings in court against any public officer who approves, makes or facilitates such payment,” Mr Nyachae said. He added that the application in such a case will seek to bar an officer from ever holding public office.

The CIC has written to the Attorney General, Prof Githu Muigai, Mr Nyegenye, the Clerk of the Senate, in his position as the secretary of the PSC, Controller of Budget and the Cabinet Secretary of the National Treasury not to pay any money.

Mrs Serem dismissed the revocation of SRC’s legal notices on the pay of State officers as inconsequential.

“It is important to note that SRC was not required by law to gazette the salaries and remuneration for State officers, but only did that as good practice and for public information,” Mrs Serem said.

But the Speaker of the National Assembly, Mr Justin Muturi, who is the chairperson of the Parliamentary Service Commission, said the salaries commission and even the Commission for the Implementation of the Constitution were “speaking per incuriam”, that is “through lack of care”. The phrase refers to a judgment of a court that has been decided without reference to statutory provision or to an earlier judgment that would have been relevant.

“The SRC derives its mandate from the Constitution, but the method that they shall then follow when doing their job is in the SRC Act. She’s is supposed to bring her proposals to Parliament. Read section 26(2) of the SRC Act,” he told the Nation. CIC disagreed with the interpretation.

The Speaker, who is in Turkey, also issued a veiled threat to the two commissions urging them not to “threaten Parliament”.

“They should tread carefully. They should not threaten Parliament; are they out of their minds? Parliament will take action and we’ll see where they will go,” Mr Muturi said in a telephone interview.

The PSC, he said, will sit to determine how to execute the House resolution, which some MPs such as the Deputy Leader of Minority Party, Mr Jakoyo Midiwo, and PSC member Jimmy Angwenyi, had asked that it be implemented immediately.

The Speaker’s comments came as the SRC invoked the name of President Kenyatta, his deputy, Mr William Ruto, and the civil society for backing the push to reduce the public wage Bill. She said there was no division in the commission as alleged by MPs.