Law that could give MPs leeway to raise their salaries

By Geoffrey Mosoku

Nairobi, Kenya: A law passed by the 10th parliament may provide a leeway for MPs to annul the Salary and Remuneration Commission (SRC) legal notice that slashed the MPs pay to Shs532,000.

The Statutory Instruments Act 2013, gives parliament the mandate to declare any gazette or legal notice null and void and also powers to revoke it if it was not done in accordance to the law.

The Act which was published on the January 25 this year gives Parliament jurisdiction to review all legal notices from the August 27, 2010; the date of the promulgation of the new constitution.  

According to the Act, any rule, regulation, order, tariff, by-law, resolution or guideline made in execution of power conferred by parliament or any other written law has to be forwarded to parliament before its operationalized.

 SRC did not submit the March 2 legal notice to parliament, as it was gazetted only two days to the elections.

The legislators now want to invoke, this law to revoke SRC gazette notice, and thereby revert to their original pay of 851,000 up from SRC recommendation of 532,000. The lawmakers also can amend provisions of SRC gazette notice.

The MPs, who are currently entangled in a bitter war with the Sarah Serem –led SRC have begun a process to interrogate the new pay structure that was gazetted just two days to the March 4 general elections without submission of parliament as provided for in law. .

 The process began on Tuesday with the election of Baringo North MP William Cheptumo to chair the parliamentary Committee on Delegated legislation.  

Cheptumo was elected unopposed with Kirinyaga central MP Joseph Gitari narrowly beating Hamisi MP Charles Gimose by 9 to 8 votes to become the vice chairman.

Immediately after the elections, all the 23 members of the committee unanimously resolved to hold a meeting to deliberate on the matter but were held back by parliamentary clerks who informed them that there were no rooms available to hold a committee meeting.

The clerks also informed the MPs that they need time to summon individuals and legal experts who will appear before the committee and consequently the MPs will meet today (Wednesday). The team is expected to expedite their work for tabling in parliament before MPs go on recess.

And to shorten the procedure, the MPs will separate the petition by Igembe South MP Mithika Linturi seeking the removal of Serem and her commissioners and will only deal with the legality of the gazette notice.  This is after the MPs were informed that the process of sacking the SRC boss will take almost two years.

“We are looking at the legality of the gazette notice,” Cheptumo who will steer the process said.

According to Cheptumo, his committee’s mandate is not to witch hunt but be to entrench rule law by determining if any statutory law is within the constitution or any other written law.

“There are weighty issues before us and the entire nation and parliament id waiting to hear from us. We want to determine the legality of the gazette notice,” he said shortly after the polls at parliament buildings adding that the committee will give its appropriate recommendations to parliament.

If the committee finds that the Serem commission overstepped its mandate or failed to follow the law in gazetting the salary structure and parliament adopts it, the SRC gazette will stand revoked.

According to Kitutu Chache North MP Jimmy Angwenyi, both the Finance Act 2011 and the Statutory Instruments Act 2013 demanded that the notice is sent to parliament for approval before gazettment.

“They should have sent to parliament the structure with an accompanying memorandum before gazetting it,” Angwenyi a member of Parliamentary Service Commission (PSC) which handles the welfare of MPs.

Although, Angwenyi contends that SRC is the body mandated by law to determine the remuneration he argues that its recommendation can only be legitimate once approved by parliament.

“There is no constitutional commission which is senior to the other, they are all equal. SRC should have consulted PSC before effecting the changes. The Committee on Delegation will have to revoke the gazette notice and well revert back to the original salary,” he says.

Standing order 210 which creates the committee provides that if the House adopts the committee report, its recommendation will automatically take effect within 20 days.

Leader of Majority Aden Duale said parliament has already set a precedent of revoking a gazette notice, when in 2008 the National Assembly through the committee overturned President Mwai Kibaki’s appointment of Aaron Ringera as the Director of the then Kenya Anti-Corruption Commission.

Kakamega Senator Bonny Khalwalwe who was the MP for Ikolomani in the tenth parliament said the amendment to require such notices or regulation to be brought to parliament was introduced by Gem MP Jakoyo Midiwo.

“I remember Midiwo introduced this amendment in the Statutory Instruments Act,” Khalwale said while explaining that the house can rescind a decision by a state organ.  He however regretted that this process should have not come that far, if both SRC and PSC had conducted honest and meaningful consultations.

Kitutu Chache South MP Richard Onyonka too argues that the Serem led Commission acted in bad faith by purporting to gazette the new salary structure by by-passing parliament.

“This was a clear violation of the law,” Onyonka said adding that parliament will have the final decision on any legal decision.