Not for the first time, Kenya’s parliamentarians are dominating the mainstream and alternative media, and not for the right reasons. Duncan Otieno explains …
Kenyans recently woke up to the news that the Parliamentary Service Commission (PARLSCOM), the body responsible for looking after the welfare of Members of Parliament, had paid each member of parliament (Senators and Members of the National Assembly) a monthly house allowance of Kshs. 250,000. Not only this, but the payment had been backdated to the date of a High Court ruling that awarded deputy governors a housing benefit.
Unsurprisingly, many Kenyan’s are angered by this selfish action. Critics see this as an act informed largely by greed rather the concerns of ordinary Kenyans who are struggling to eke a living. Others point out that PARLSCOM acted in breach of the Constitution as it is not within its remit to determine the remuneration of Members of Parliament. This mandate rests with the Salaries and Remuneration Commission (SRC) pursuant to article 230 (4) of the Constitution of Kenya, 2010. The action by PARLSCOM to determine and pay her members house allowance has therefore been said to be unconstitutional, and hence null and void.
Justifying the indefensible
For their part, MPs argue that they have been discriminated against, since other state officers are getting a house allowance as part of their package. However, this is misleading. The SRC in Gazette Notices No. 6516, 6517, 6518 and 6519 of 2017 set gross pay (consolidated pay) for State Officers, including MPs and Senators. This consolidated pay comprises basic salary and allowances, inclusive of any house allowance. Therefore any payment of allowances outside of gross pay effectively means that MPs are being paid twice and is unconstitutional.
Given this, if MPs want to be paid house allowance outside of their consolidated pay, the sound thing to have done would have been to pursue the matter with the SRC directly, rather than to do so through PARLSCOM. This is especially the case as officially PARLSCOM can only make proposals to SRC – the final decision to determine pay is not theirs.
The other argument used by MPs to justify their action is that in October 2018, the High Court ordered the SRC to pay Deputy Governors a house allowance just like Governors, who are provided with a housing benefit. In that petition, the court ruled that denying County Deputy Governors housing benefit was discriminatory, unjustifiably selective, and is contrary to article 27 of the Constitution.
PARLSCOM was not party to this case and the orders were specific to the petitioners, but despite this has invoked it. This makes little sense – if MPs feel that they are discriminated against, the right move would have been to approach the High Court and argue that the ruling should be extended to also cover national legislators. Even if this had happened, however, it would not have been for MPs themselves to determine how to remedy that “discrimination.” That responsibility would still have fallen on the SRC.
If PARLSCOM’s action is left unchallenged, it will have far reaching implication for the economy. It will cost taxpayers Kshs 104 million monthly or Kshs 1.25 billion annually to shoulder this greed. For an economy that operates in fiscal deficits, any addition on the wage bill will only make things worse. Moreover, this decision will invite similar demands from other state officers, further expanding the wage bill – something the country can little afford.
This development can be resisted if the SRC challenge the decision in court and also call on other oversight bodies – such as the media, civil society groups and religious organizations – to come out and lend their voice to a campaign in favour of responsible government. This would be in keeping with article 3 (1) of the constitution that obligates every person to respect, uphold and defend the country’s legal framework.
In the short term, immediate relief must be sought from the courts to halt any further payments until the constitutionality – or lack thereof – of PARLSCOM’s actions has been determined.
Finally, as a country, Kenyans needs to make up their mind about what they want. If citizens believe that everyone should decide their own pay, then we should disband the SRC and allow every institution to determine its own salaries. More likely, Kenyans would want limits to be placed on the pay of those who already earn so much more than the average citizen. We much therefore adhere to the provisions of the current constitution.
A good steward guards her purse jealously.
Duncan Otieno writes on topical issues in Kenya. Twitter: @nyorude
(This article was first published by the Democracy in Africa, an online platform dedicated to building a bridge between academics, policymakers, practitioners and citizens)