Leave to Caesar the decisions of Caesar!

Kenya’s Salaries and Remuneration Commission (SRC) was formed with the primary intention of taming the greed of State officers who had formed the habit of raising their own remuneration every opportunity they got.

The executive and the legislature were particularly notorious, sitting as prosecutors, judges and juries in their own cause. In the recent past, we had become accustomed to having salaries and allowances being the first order of business for our elected representatives at all levels.

During the review of the constitution, Kenyans indicated their distaste for this behaviour, and created a constitutional commission to rein it in and thus save the exchequer from the risks inherent in unchecked rises in the salaries and allowances of powerful State officers.

At Article 230(4)(a), Kenyans made it mandatory for the commission to “set and regularly review the remuneration and benefits of all State officers”.

We hoped to have cured the malaise once and for all, and expected that this commission would act as a buffer between our greedy politicians and our taxes, giving them only that which we felt was commensurate with their work, and no more.

The people’s expectation was that this commission would be composed of experts with a bird’s eye view of the economy, and with the capacity to predict potential impacts of the economic policies implemented at all levels of government. As a result, Article 230(4)(b) provided that the commission would also “advise the national and county governments on the remuneration and benefits of all other public officers”.

CONTROL GREED

A reading of the constitution therefore lays bare the intention of Kenyans – primarily to control the greed of State officers, and to provide expertise to guide the national and county governments in their decisions regarding remuneration of their own employees. One would expect that this is clear to anyone reading Article 230 of the constitution but, alas, Kenyans are a special breed.

As soon as it assumed office, the commission got into a skirmish with Parliament and lost, perhaps because the members were ill-prepared for the job the constitution gave them. They allowed Parliament and the county assemblies to run roughshod over their constitutional mandate and, as a result, left the culture of impunity and greed intact.

Having failed here, the commission instead turned its mandate on its head. It decided to get into the business of “setting and regularly reviewing” the remuneration and benefits of all public officers (except State officers!) in complete contravention of the constitution. For State officers, the commission contented itself with providing advice, a role the constitution does not contemplate in this regard.

The shortage of creative, long-term thinkers in our State offices was apparent when the Court of Appeal sided with the SRC and ruled that the commission’s “advice” with regard to “other public officers” was firstly mandatory, and secondly “binding”, meaning that it had to be followed.

If one were to follow the reasoning behind the ruling of the Appeal Court that fortified the SRC’s subversion of the Constitution, the national and county executives would not have to bear any political responsibility for the exercise of fiscal policy.

This reasoning takes away from the executive the mandate to prudently allocate resources under the watchful eye of the legislature, and donates much of this power to an unelected, appointed corpus whose decisions therefore acquire the force of law.

At the end of the day, the SRC will purport to set all remuneration for public officers, and a future government could quite persuasively argue that it is not responsible for the bloated wage bill, and should therefore not be punished for it at the ballot.

By extension, the government could farm out all its economic decision-making to other constitutional commissions and independent offices and cease taking political responsibility for a poorly performing economy!

Atwoli is associate professor of psychiatry and dean, School of Medicine, Moi University; [email protected]