A court has nullified a section of the law that MPs introduced to deny retired top Government officials who engage in politics their retirement benefits.
The amendment to the Retirement Benefits (Deputy President and designated State Officers) Act, 2015, was interpreted as targeting opposition leaders Raila Odinga and Kalonzo Musyoka who had served in the coalition government as prime minister and vice president respectively.
This was after the two “refused to retire” as their political nemesis demanded.
The High Court ruled as unconstitutional section four of the Act which spelt out active participation in politics, removal from office for violation of the Constitution and conviction for an offence as grounds to deny one the perks.
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The law also provides for State perks for retired presidents, their deputies, Chief Justice, Speakers, among others.
Justices Wilfrida Okwany, Pauline Nyamweya and John Mativo ruled that retirement benefits for presidents and their deputies, facilities put in place for them and privileges they enjoy cannot be varied to their disadvantage during their lifetime.
The judges, in a case filed by defunct Coalition for Reforms and Democracy (CORD), declared section four of the Retirement and Benefits Act, 2015 unconstitutional for violating the right to retirement benefits.
The contested section had ruled out retirement pay for any person who held a position of a Deputy President, Vice-President, Prime Minister, Speaker, Chief Justice or Deputy Chief Justice after January 1, 1993 who held a political office or is active in politics.
“A declaration be and is hereby issued that section 4 of the Retirement Benefits (Deputy President and designated State Officers) Act, 2015 is unconstitutional on grounds that it offends the doctrine of separation of powers and the common law principles of ambiguity, uncertainty, vagueness, unreasonableness, double jeopardy and retrospective application,” the judges ruled.
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On June 10, 2015, President Uhuru Kenyatta wrote to Parliament asking it to cut former VP and Wiper Party leader Musyoka and former PM and ODM leader Raila Odinga’s retirement packages.
The memo, which subsequently ended up as an amendment law, stipulated that calculation of the lumpsum payment for retired PM and VP would be based on a year’s pay for the term served as opposed to 18 months.
For Raila and Kalonzo to enjoy the perks, it provided, they had to quit politics because the President was of the opinion that active politicians should not draw State pension.
In court, CORD argued that the Act was amendment aimed at politically punishing those who had previously served in government but were now in opposition.