CIC says law on Kibaki retirement perks is void

Parliament acted illegally when it handed former president Mwai Kibaki a hefty retirement package, the Commission on Implementation of the Constitution (CIC) has said.

In a memo that seeks a repeal of 30 pieces of legislation, the CIC says the Presidential Retirement Benefits (Amendment) Act, 2013, which the 10th Parliament passed before its dissolution, is unconstitutional.

Under the Act that Mr Kibaki signed before leaving office, a retired president is entitled to a sendoff package of Sh12.6 million for every term served, a monthly pension at the rate of 80 per cent of the final salary and a monthly entertainment allowance amounting to 40 per cent of the last salary, among other benefits.

The CIC says in a report published in the Kenya Gazette on Friday, that the Attorney-General, Parliament and the Executive acted illegally when they by-passed the CIC and the Salaries and Remuneration Commission (SRC) in the passage of the Bills.

“The Bills were hurriedly passed without first being submitted to the commission, and where necessary to the SRC pursuant to the provisions of Article 261 and are therefore unconstitutional,” Charles Nyachae, the CIC chairman, says in a quarterly report covering January to March, 2014.

The commission, which is mandated to oversee the implementation of the Constitution, is now seeking to have Parliament review the laws.

“I believe our objection to the Presidential Retirement (Amendment) Bill, 2012 is linked to non-involvement of the Salaries and Remuneration Commission,  which is established under Article 230(1) of the Constitution to set and regularly review the remuneration and benefits of all State officers,” Kamotho Waiganjo, a CIC commissioner, said on Friday.

In 2013, the CIC wrote to Mr Kibaki urging him to reject the Bill on grounds that it was unconstitutional but the he ignored the advice and signed the Bill into law.

“In light of this, the commission has advised the President that in the clear language of the Constitution, it is the exclusive function of the Salaries and Remuneration Commission established under Article 230(1) of the Constitution, to set and regularly review the remuneration and benefits of all State officers and to advise the national and county governments on the remuneration and benefits of all other public officers,” the commission said.

READ: Kibaki, Moi perks to cost taxpayer Sh150 million a year

Mr Nyachae says the commission had prioritised some of the laws that had been submitted to it for review, including the Office of the Director of Public Prosecutions Act, 2013, and the Office of the Attorney-General Act, 2013.

The 10th Parliament hurriedly passed the Bills before dissolution, ignoring CIC’s advisory to the Attorney-General and the National Assembly pointing out some of the unconstitutional provisions.

“Regrettably, the laws were enacted with the glaring constitutional defects. The commission now seeks to have them reviewed by the National Assembly via amendment to the unconstitutional provisions, or in the alternative, through judicial intervention,” he says.

The pieces of legislation that the CIC wants amended to conform to the Constitution include the Customs and Excise Act that increased taxes on beer, National Government Co-ordination Act, which entrenched the Provincial Administration and the Public Private Partnership Act that allows private sector participation in major government projects.

Others are the Kenya Institute of Curriculum Development Bill, the Basic Education Act, the Social Assistance Act, the Kenya Commission for UNESCO Act, the National Coroners Act, the Science Technology and Innovation Act, the Supplementary Appropriation Act, 2013, the Technical and Vocational Education and Training Act, the Office of the Director of Public Prosecutions Act, the Transition County Allocation of Revenue Act, 2012, the Transition County Appropriation Act, 2013 and the County Governments Public Finance Management Transition Act, 2013.

The commission is also seeking review of the Civil Aviation, International Interests in Aircraft Equipment Act, the Kenya Medical Supplies Authority Act, the Constituencies Development Act, the Kenya Law Reform Commission Act, the National Centre for International Arbitration Act, the Agriculture, Livestock, Fisheries and Food Authority Act, the Public Benefits Organisations Act, the Kenya Agricultural and Livestock Research Act, the Sports Act, the Pyrethrum, Public Health Officers (Training, Registration and Licensing) Act, the Crop Act and Statutory (Amendment) Act, 2012.

“In the lead-up to prorogation of Parliament, a number of Bills were hurriedly passed. Unfortunately, most of these Bills had not been submitted to the commission for review as required by the Constitution,” Mr Nyachae says.

The laws can be amended through the Statute Law Miscellaneous (Amendment) Bill, which provides for minor amendments to existing statutes.
MPs on Thursday voted to reject a motion that sought to fast track the passage of three Bills with August 27 constitutional deadline, warning that the House risked repeating mistakes of the 10th House.

The MPs rejected attempts by the Constitutional Oversight Implementation Committee (CIOC) chaired by Githunguri MP Njoroge Baiya to shorten the publication period of Public Service (Values and Principles) Bill, the Persons Deprived of Liberty Bill and the Environment Management and Co-ordination (Amendment) Bill 2014 from 14 to five days, arguing that it will curtail public participation.

The MPs will now have to raise two thirds majority (233 MPs) to extend the deadline for a period not exceeding one year.