Salaries team scoffs at MPs’ plan of attack

By LUKE ANAMI

KENYA: The Salaries and Remuneration Commission will not back down in its battle with Members of Parliament over their salaries, top officials say.

They said they had nothing to fear if a Motion put before the House by Igembe MP Mithika Linturi leads to a tribunal to investigate their conduct. MPs, they insist, cannot raise their salaries at will.

The decision sets the stage for a major showdown as lawmakers seek ways to arm-twist the Executive to punish the constitutionally protected body.

Referring to the tabling in Parliament of budgetary proposals that include more pay for legislators, SRC’s Vice-Chairman said MPs no longer have powers to set their own pay and any attempt to do so is unconstitutional.

 “SRC (alone) has the mandate to set pay for State officers as per the

Constitution, not any other body,” Mr Daniel Oguttu explained. “SRC is established under Article 230 to determine pay for State officers, including MPs. This commission set the pay for MPs in accordance with its mandate, so the issue of breaching the Constitution does not arise.” Linturi’s Motion hopes to prompt President Uhuru to appoint a tribunal to probe the SRC. This seems unlikely given his opposition to higher pay for MPs but there are fears blackmail on House business could force his hand.

Possible scenarios

“This commission is ready to face the tribunal should the President decide to appoint one,” Ogutti added. “The Commission will be issuing a statement (on the Motion) in the course of next week when all of us are around.” SRC Chairperson Sarah Serem is out of the country on official duty.    Oguttu said there is nothing unconstitutional in setting pay for State officers including the President, Judges and MPs among others.    Linturi is leading a campaign to secure the removal of the SRC chairperson and other members of the Commission. He argues Serem has “violated, breached, infringed and threatened the Constitution”, citing more than 18 counts in his Motion.

Article 255 of the Constitution states that a member of a commission or a holder of an independent office may only be removed for serious violation of the Constitution or any other law, gross misconduct, physical or mental incapacity, incompetence or bankruptcy.

“If you listen to the debate on Thursday, none of the MPs raised any issues to do with our individual conduct that could justify their claims,” Oguttu says. “We are above reproach as per Chapter Six of the Constitution on matters of integrity. In any case, even if you remove us those appointed will retain the same mandate as per Article 230.”

Commissioner Isaiah Kubai, representing the Central Organisation of Trade Unions on the SRC, said the disbandment of commission is subject to a referendum in accordance with article 255 of the Constitution.

“If the Motion succeeds, the President has the discretion to appoint a tribunal that could recommend our removal,” Kubai says. “But SRC is protected and can only be removed through a referendum (to amend the Constitution).”  Kubai also dismissed an argument fronted by Cotu Secretary-General Francis Atwoli on a general principle never to reduce an employee’s pay.     “The SRC did not revise MPs pay downwards,” he insists. “(We) set pay structures for a new Parliament whose mandate runs from 2013 to 2017. The Tenth Parliament (whose members earned Sh851,000 a month) ended its mandate. This is a new Parliament (whose members have salaries of Sh532,500) and we cannot be accused of setting new pay.”

On Friday, the Commission for the Implementation of the Constitution, the Law Society of Kenya and members of civil society defended SRC and accused MPs for abusing their legislative powers.  “While Parliament has an oversight role over commissions, that does not (empower them to) take over their mandates,” said Charles Nyachae, CIC Chairman, in an earlier interview. He said Chapter 15 of the Constitution is clear as to the mandates and authority of commissions. “Under Article 249, the holders of independent commissions are independent officers and are subject only to the Constitution and the law. The SRC is, therefore, not subject to direction or control by any person or authority.”

Law Society of Kenya chairman Eric Mutua also condemned the MPs’ move. He urged National Assembly Speaker Justin Muturi to rule on whether debating the Motion was constitutional.

Court ruling

“The Commission cannot be disbanded for performing its constitutional mandate of harmonising salaries within the public sector,” Mutua said. He termed Linturi’s Motion as illegal and called on the Director of Public Prosecutions (DPP) Keriako Tobiko to investigate Linturi’s conduct should the Speaker fail to reject the Motion.

“The DPP should probe Linturi as his actions could amount to gross abuse of office and privileges,” the LSK chairman said.

Mwalimu Mati of Mars Group pointed out that a High Court petition by the Rev Timothy Njoya and 17 others compelling MPs of the Tenth Parliament to pay tax also barred MPs from setting their own pay.    “Justice Warsame in his ruling made it very clear: ‘By virtue of the Section 3 (2) of the Sixth Schedule (transitional provisions), the members of the National Assembly were entitled to set their own terms and benefits. This entitlement was, however, extinguished once the Salaries and Remuneration Commission was established.’ The Parliamentary Service Commission appealed against this ruling but they have been unable to pursue it further because they know the position,” Mati explained.