Duncan Otieno on Why Kenyan MPs should not be remunerated for the “Unserved” term
Kenyans have been treated to news about the MPs demanding KShs 3.3 billion ostensibly for the ‘unserved’ eight months occasioned by the “shortening” of their term. This has elicited anger from majority of Kenyans .
But just how did we find ourselves in this conundrum? It will be remembered that after promulgation of the Constitution, political and legal contestation arose over the term of the then 10th parliament besides the issue of when the first election under the new constitution was to be held.
As expected, the matter ended up in the High Court.
A number of issues were canvassed but only two are of interest here. One was the question of “when to hold the first elections under the new constitution” and two was “whether the unexpired term of the National Assembly incorporates the terms and conditions of service for the National Assembly.”
In the case of the former, the court found and held that, “the first election under the new Constitution could only be lawfully held in 2012, within sixty days from the date on which the National Coalition is dissolved by written agreement between the then President and the Prime Minister in accordance with section 6(b) of the National Accord and Reconciliation Act, 2008 — or within sixty days from the expiry of the term of the National assembly on January 15, 2013.”
It was on the strength of this order of the court that the IEBC set the March 4, 2013 election date.
Regarding the issue of the unexpired term, terms and conditions of service, the three-judge bench unanimously ruled that, “For the avoidance of doubt, the terms and conditions of service of Members of Parliament are only applicable as long as they are in office.”
The court further held that MPs are remunerated as long as they hold office, and upon dissolution or expiry of the term of parliament their salaries and allowances cease. The High Court ruling was appealed at the Court of Appeal in the Civil Appeal No. 74 & 82 of 2012. The Court of Appeal unanimously upheld the High Court ruling thereby bringing an end to the matter.
Seven years on, MPs and most recently Members of County Assemblies are mounting pressure on the Treasury to pay them for the eight months. In their wisdom or lack thereof, they claim that by holding elections in August 2017, they are disadvantaged since their social contracts with Kenyans ought to expire in March 2018.
Article 102 (1) of the Constitution provides that the term of each house of Parliament expires on the date of the next general election. It therefore follows that the term of the current Parliament shall expire on August 8, 2017.
The only time the term of Parliament can be extended is when Kenya is at war and such extension must be approved by at least two-thirds of all the members of the house. Kenya is not at war. Therefore any attempt to pay MPs for even an extra day beyond 8th August 2017 will not only be unconstitutional but also fraudulent.
The Treasury must not give in to this nefarious plan by the MPs to defraud Kenyans. Treasury must not allow itself to be blackmailed — and if recent media reports that the Cabinet Secretary Henry Rotich may be contemplating striking a deal with the parliamentarians to avoid ‘war’ with the MPs are true, then Kenyans need to be worried.
Should Treasury accede to the lawmakers demands, every MP will pocket minimum of KShs. 6 million for the contested period. Kenyans have no problem with paying MPs but what they are against is paying for an illegal contract.
Duncan Otieno, is a Public Policy Commentator. Twitter: @nyorude
(This article was first published by The Standard Media Group)