By Peter Opiyo

Outrage against the nocturnal conspiracy through which Members of Parliament awarded themselves a Sh2.1billion send-home package rose as it looked certain the dispute is headed to the courts.

But even as the fury soared with street demonstrations against the sweetheart deal MPs struck expected to start today, national attention is on President Kibaki, with the question of the day being whether he will append his signature to the Bill doling out about Sh10 million to each MP.

With the economy struggling to get back its foothold, waves of national strikes by public workers over poor pay, rising public expenditure over the new offices created by the Constitution and Devolution model, and the general rise in the cost of living, the MPs’ winding-up allowance conspiracy could not have come at a most inappropriate time.

However, even as attention was riveted on Kibaki, the President stuck to his trademark silence over heated national debate, and on Monday, he left the country for a two-day bilateral meeting with Uganda’s President Yoweri Museveni in Kampala.

The Clerk of the National Assembly Mr Patrick Gichohi revealed he had submitted the amended Bill to Attorney General Githu Muigai for delivery to the President.

Alongside the hefty payout, the MPs also unanimously endorsed a proposal by Finance minister Njeru Githae to levy a 10 per cent tax on cellular phone money transfer services, in effect overburdening ordinary Kenyans who rely on the services. What it means is that for every cash transfer, Kenyans will be raising funds to meet the MPs’ pay deal.

The move to award hefty allowances was executed a few minutes to 10pm on Thursday, after Wajir West MP Adan Keynan proposed an amendment to the Finance Bill (2012).

The new clause 21A sailed through without any debate and would see the 224 MPs — among them the Speaker and the Attorney General — pocketing a severance allowance calculated at 31 per cent of their basic pay of Sh200,000 per month from the time they were sworn in on January 15, 2008 up to August 26, 2010.

Thereafter, they would benefit from 31 per cent of their gross pay of Sh851,000 as severance pay from August 27, 2010 until January 15, 2013 when their term expires. This would mean each MP would pocket Sh9.3 million at the end of their term.

But the outrage was not only confined to ordinary Kenyans, rights groups and non-governmental organisations, but also the key institutions charged with overseeing the implementation of the Constitution and ensuring fairness in pay awards.

Salaries and Remuneration Commission (SRC) as well as the Constitution Implementation Commission (CIC) declared the award illegal, unconstitutional and unwarranted, and vowed they would move to court to challenge it.

“The politicians’ move is not just unconstitutional and therefore illegal, it is also insensitive and unrealistic. Where will the money come from in the first place under our current unsustainable wage bill?” asked SRC chairperson, Mrs Sarah Serem.

Unsustainable wage bill

She argued that the current wage bill was unsustainable and the commission was struggling to rationalise it, adding that the SRC must first approve such payments.

“The decision by Parliament was therefore null and void and will be fought in the courts if necessary,” said Serem. Mrs Serem spoke from the US where she is attending a Diaspora Conference in Virginia. The commission is a constitutional office established under Article 230 of the Constitution.

Transparency International Kenya (TI-Kenya), the Institute for Social Accountability, Federation of Women Lawyers (FIDA-Kenya) and Kenya Human Rights Commission described MPs’ action as in direct conflict with SRC’s constitutional mandate.

“We note with great concern this pattern of MPs continuing to flout the law, this time disregarding the essence of Salaries Remuneration Commission,” the organisations said in a statement read by Samuel Kimeu, TI-Kenya Executive Director.

On Monday, a lawyer, Mr Christopher Kabugu, representing Mars Group filed a court case against the MPs and also enjoined CIC as a complainant against the hefty payment.

CIC Chairman Charles Nyachae had on Sunday said his commission would challenge the move in Court should President Kibaki append his signature to it.

Nyachae has also written to Kibaki asking him to decline appending his signature to the Bill and send it back to Parliament for the offending clause to be deleted.

CIC would also move to court to seek a declaration that any MP who voted for the provisions violated the Constitution and is unfit to hold public office.

Three presidential aspirants also voiced their protests. Prime Minister Raila Odinga, his Deputy Musalia Mudavadi and Gichugu MP, Martha Karua said they were opposed to the award. “It was wrong for the MPs to award themselves the pay package while doctors, nurses and lecturers are asking for more money which they have not been given,” said Raila through a spokesman.

Mudavadi appealed for a reconsideration of decision by Parliament and called for the amendment to the Finance Bill that has proposed gratuity payment MPs saying it does not augur well, coming hot on the heels of labour unrest in the public sector.

“In view of the existence of the Salaries and Remuneration Commission (SRRC) and agitation by the public, Parliament may have sent a negative signal with this award. I ask the President to hold his assent to allow the agency do its work”, said Mudavadi.

Mudavadi appealed to President Mwai Kibaki to keenly listen to public concerns and advice Parliament against the award.

“The President should reconsider the Bill with the proposition for possible amendments. Salaries and Remuneration Commission to be proactive to come on board actively to such to prevent such actions in future”, he said.

Karua again said she does not support the ex-gratia payment and also warned it is only SRRC which can review salaries.

Mars Group criticised the move saying it is contemptuous of the court proceedings regarding the same matter. “We note that yet again Members of Parliament and the Parliamentary Service Commission have abused their privileges and disregarded all rules of decency and conflict of interest to purport to yet again enact increases to their personal remuneration and allowances,” said Ms Jayne Mati of Mars Group

In the Petition Ms Mati urged the High Court to find the action by MPs unconstitutional. She specifically urged the Court to issue a declaration that Sections 44 and 44A of the Finance Act were null and void.

It is the provisions that the MPs used to hike their severance allowances from Sh1.5 million to Sh3.7 million each in April, separate from last week’s new award.