Economy

MPs leave clerks in tight spot after quashing notices

Clerks of the National Assembly and the Senate were on Tuesday left in a tight spot after Members of Parliament voted to quash four legal notices setting the salaries of public officers.

The vote, which was taken at the end of debate on a report by the Committee on Delegated Legislation, revoked the legal notices that set the MPs’ salaries at Sh542,500 per month and Sh79,000 for Members of County Assembly paving the way for a return to the Sh851,000 per month salary that members of the Ninth and 10th Parliament earned.

The vote effectively puts Senate Clerk Jeremiah Nyegenye and his National Assembly counterpart, Justin Bundi, under the spotlight as they have the authority to sign off payment of any money from parliament’s budget.

Paying the MPs a salary of Sh851,000 would be a risky undertaking for the duo because the legislators’ decision to overturn the Salaries and Remuneration Commission’s actions has been challenged in court and the Constitution provides for punitive penalties for public officers who spend or authorise spending of public funds in breach of the law.

“If the holder of a public office, including a political office, directs or approves the use of public funds contrary to the 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,” says Article 226(5) of the Constitution.

CIC chairman Charles Nyachae made clear Mr Bundi and Mr Nyegenye’s predicament in the notice published on Sunday, warning that any public officer who makes an unlawful payment of a salary/or benefit to a state officer contrary to the determination of SRC will be held personally liable for any losses that ensue.

“We wish to draw attention to all institutions responsible for paying salaries and benefits to State officers that under Article 226(5), any public officer who makes an unlawful payment of public funds will be personally responsible for making good the loss occasioned by such an illegal payment,” he said.

The CIC’s position means that should the clerks approve the payment of higher salaries to the MPs and the court finds that the MPs acted illegally in overturning the SRC’s decision, the two clerks would be held personally liable for any losses incurred.

Mr Bundi refused to respond to questions on the matter, stating that MPs were free to decide on the committee’s report.

“I don’t want to answer that now. Let us wait because there are too many arguments and counter opinions coming from many quarters including the CIC,” Mr Bundi said, adding that the stand-off needed to end so that the MPs can be paid their salaries.

Mr Nyegenye, who is the Parliamentary Service Commission (PSC) Secretary, said in a text message that he would deal with the matter when and if it arises.

“I am out of the country. Let us deal with the matter when/if it arises,” Mr Nyegenye said in a text message in response to our questions.

On Tuesday, the MPs defied the CIC’s position that nullification of the SRC’s legal notices was futile as the salaries team bears no legal obligation to publish the notices.

(Read: MPs vote to increase pay)

CIC had also argued that the MPs had, in their quest to clear the way for a reversal of the SRC’s actions, relied on a law that is unconstitutional.

The said law requires any arm of government or agency that publishes subsidiary legislation to submit the same to parliament within 14 days for vetting and endorsement.  

“It is important to realize that SRC is not required by the Constitution to gazette the salaries and benefits of State officers to make them effective, SRC just chose the mode of gazettement in good faith for public information.

“Quashing the gazette notices is therefore of no effect as the new salaries and benefits are already set and communicated to the institutions responsible for paying salaries and benefits,” Mr Nyachae said.

But parliamentarians defied the advice and passed the Committee on Delegated Legislation’s report declaring legal notices numbers 2885, 2886, 2887 and 2887 which set salaries for MPs and other state officers unconstitutional.

“The committee was of the view that the legal notices raised serious constitutional issues that required urgent resolution by Parliament,” said Baringo North MP William Cheptumo, who chaired the committee.

Mr Cheptumo said the powers and functions of SRC under Article 230 of the Constitution were not clear.

“The same Constitution also states that the SRC shall take certain principles into account,” he said even as he urged Parliament to quash the notices that are “unconstitutional, unlawful and therefore null and void.”

The committee also recommended that MPs’ remuneration continues to be governed by the National Assembly Remuneration Act Cap 5 and the Parliamentary Pensions Act Cap 196 of the Law of Kenya that remain in force.

Agnes Odhiambo, the Controller of Budget, who authorises withdrawal of money from the Consolidated Fund was in Kisumu on official duty and promised to comment on the matter later.

She had not responded by the time we went to press and our calls to her went unanswered. Article 228(5) of the Constitution stipulates that “the Controller shall not approve any withdrawal from a public fund unless satisfied that the withdrawal is authorised by law.”

The CIC has further warned that the National Assembly Remuneration Act cannot be the basis of paying MPs’ salaries and benefits since under Article 2(4) it is void 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 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,” the Nyachae-led team said.

Commissioner Kamotho Waiganjo dismissed MPs move terming it an exercise in futility and an illegality. He said MPs move could not annul the determination of their pay by the SRC since it has already been made.

“The SRC has already made a salary determination for MPs, Senators, Governors and County Assembly representative as per their mandate outlined in Article 230 of the Constitution,” said Mr Waiganjo.

Mr Cheptumo had argued that Section 12 (1) of SRC Act mandated the commission to take into account recommendations of previous commission’s established to inquire into remuneration of public servants and cited the Justice Majid Cockar and Akilano Akiwumi tribunals.

“There has been accusations that MPs are greedy, selfish people. This is the Constitution we are quoting. This process was objected to by Parliament and the PSC termed the job evaluation process unconstitutional,” he said.

Mr Cheptumo charged that the issue of annulling the notices was not about an individual but the rule of law. 

“It is not about an individual but the wellbeing and dignity of MPs and above all the rule of law,” he said stating that MPs are elected to exercise sovereign will of the people and stand below the President and Deputy President in the pecking order.

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