A decision to allow the Judicial Service Commission (JSC) to hold unrestricted sittings could open the door for MPs and MCAs to also pocket uncontrolled sitting allowances.
The decision by Justice Chacha Mwita yesterday benefits 12 JSC commissioners, but exposes taxpayers to similar demands by 416 MPs and 2,562 MCAs, who have also challenged, in court, the reduction of their sitting allowances.
The Salaries and Remuneration Commission (SRC) had capped the number of JSC sittings to eight a month - meaning a commissioner was entitled to a maximum of Sh1 million monthly - but the implication of yesterday’s ruling is that commissioners can sit as many times as they decide.
Number of sittings
The commission had also capped the number of committee sittings for MPs and MCAs to a maximum 16 a month, the limits informed by the need to curb runaway allowances that constituted almost 70 per cent of gross pay for public servants.
By capping the sitting allowances, SRC projected to reduce the public wage bill by 35 per cent and save more than Sh8 billion a year.
The court verdict yesterday is seen as a setback to the efforts to tame the bloated public wage bill, which currently accounts for half of the revenues.
MPs and MCAs have also filed separate cases to challenge the controls.
According to the SRC guidelines, a parliamentary committee chairperson is entitled to a maximum Sh160,000 a month as sitting allowance at the rate of Sh10,000 per sitting.
Vice chairpersons can pocket a maximum of Sh128,000 per month (Sh8,000 per sitting) and a member Sh80,000 per month (Sh5,000 per sitting).
The chairperson of a county assembly committee is entitled to Sh80,000 per month, vice chairperson (Sh64,000) and a member Sh48,000 per month. They want more.
The three groups separately went to court complaining of discrimination and arguing that SRC lacked the powers to regulate their salaries.
They argued that only their respective employers - JSC, Parliamentary Service Commission and County Assemblies Public Service Boards - could determine how much they could earn and how many times they were able to have sittings.
Yesterday, the High Court ruled that it was unconstitutional to limit the number of JSC sittings.
Commissioners of JSC have no salary and are paid allowances based on the number of sittings they hold.
Mwita found that allowing JSC to sit eight times would mean SRC was taking away the latter’s independence to carry out its mandate.
“The respondent’s (SRC) mandate is limited to regulating salaries of civil servants. It, however, does not spread to regulating how the commissions operate,” the judge ruled.
According to the judge, JSC is only answerable to Parliament on how it spends its money.
He observed that it was for MPs, and not SRC, to decide how many times JSC would sit.
“Parliament did not see it fit to limit the number of sittings, hence no other body can do the same. It is a mandate that the respondent does not have and it flies in the face of the Constitution and the law to cap the sittings,” ruled Justice Mwita.
Both commissions had tried to broker a deal in which JSC was required to inform SRC when they needed to increase the number of sittings, but the talks were unfruitful.
In the case, JSC argued that the cap was hampering operations of the Judiciary at large.
It argued that the commission was an independent organ not subject to any direction.
“SRC can only set the remuneration for JSC but cannot set the number of paid sittings they have since that will be attempting to interfere with our administrative independence. In any event, SRC can only review benefits of State officers, but not independent constitutional offices,” the court papers filed by JSC read.
The JSC also argued that it was wrong for SRC to base its arguments on the fact that commissioners held other public positions, enabling them to earn double salaries.
JSC denied that it had misused public funds in paying for sitting allowances, arguing that a report by the Auditor General had only recommended that any money overpaid should be refunded.
“The income that members earn from their full-time employments in other offices has no bearing on the allowances they earn while doing duties at the JSC. They are entitled to those pay whenever attending to JSC matters,” she argued.
But on the other hand, SRC and the Attorney General Paul Kihara asked the judge to dismiss the case.
Although the AG is a member of JSC, in his submissions he backed SRC, arguing that commissioners were State officers and, therefore, their salaries could be reviewed by the latter.
According to the AG, the commission, led by Chief Justice David Maraga, could request to factor in instances where they needed to have more sittings.
“Where there has been need to have more sittings, the JSC has requested for formation of a task-force,” he argued.