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Refund Sh2.7b illegal pay to taxpayers, court orders MPs

By Kamau Muthoni | December 11th 2020 at 00:00:00 GMT +0300

MPs keep social distance during a National Assembly Special Sitting as they discussed the country's battle with Covid-19. [Boniface Okendo, Standard]

MPs must refund more than Sh2.7 billion they illegally allocated themselves for house allowance.

The High Court has ordered the Parliamentary Service Commission (PSC) to recover the money in one year.

Justices Pauline Nyamweya, Weldon Korir and John Mativo yesterday found that the commission had no powers to allocate Sh250,000 monthly to every MP and backdate it to 2018 without the authority of the Salaries and Remuneration Commission (SRC).

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For 26 months, taxpayers paid Sh104 million each month to MPs illegally.

The judges dismissed PSC’s plea that it allows current MPs to earn equal salaries as those who served in the 11th Parliament and to keep the illegal payout.

Defied advice

The bench noted that PSC defied advice by the National Treasury that it ought to seek approvals from SRC and the Controller of Budget before making any payments.

“Even if PSC had the authority to set a housing benefit for the MPs, that decision could not legally benefit the current Parliament. The membership of the PSC comprises sitting MPs. The effect of the decision is to award benefits to themselves during their term thereby the effect, spirit and purpose of Article 116 (3),” the court ruled.

The court also declined to fault SRC for limiting the number of committee sittings.

In this case, PSC claimed that SRC had encroached on its independence. It argued that the allowances were facilitative and enabled lawmakers to effectively serve their constituents.

However, Attorney General Kihara Kariuki, in his response, told the court that it was illegal for MPs to get an additional Sh250,000 each for house allowance as PSC never consulted SRC and the money was not approved.

The AG, SRC, Law Society of Kenya (LSK) and activist Okiya Omtatah had urged the court to force PSC to deduct the amount from the MPs’ salaries and return it to the Treasury.

The case was filed by SRC and it argued that MPs receive 40 per cent of their gross salaries as consolidated allowances, and which cater for all the allowances they are entitled to.

“In cognizance of Parliament’s immense power, the Constitution includes checks to limit House’s power in determining members’ remuneration. Indeed, pay for all state and public officers is a Constitutional issue.

“No person or state organ can determine their remuneration and therefore we urge the court to declare the action of the Parliamentary Service Commission to award Members of Parliament a house allowance of Sh250,000 unconstitutional thus null and void,” senior State Counsel Thande Kuria argued.

At the same time, SRC’s lawyer Peter Wanyama told the court that MPs bulldozed it to ratify 19 allowances for themselves. The lawyer claimed that in retaliation, Parliament went ahead to slash SRC’s budgetary allocation. He said SRC employees do not have tea in the office as a result of the cut by MPs.

“MPs presented 19 allowances which they wanted SRC to ratify and pay immediately. They tried to bulldoze SRC to cut the budget. You don’t know these MPs. One of the allowances was house allowance. It was camouflaged as a facilitating housing benefit,” claimed Wanyama.

The PSC, on the other hand, wanted the court to declare that SRC had discriminated against them and that they are entitled to good pay.

The commission also wanted the court to declare SRC’s 2013 Gazette notice, which spells out their pay and allowances, unconstitutional. They also wanted the court to lift the current sittings limit. The SRC had limited the august House sittings to 16 a month.

Skewed mileage

The PSC argued that the salaries earned by MPs in the 11th Parliament ought to be retained on the basis of the high cost of living and that their predecessors used to earn more. According to the MPs, salaries and allowances set in 2013 have not been increased since then, despite changes in the economy.

Meanwhile, it emerged that 18 lawmakers had raised concerns with National Assembly Speaker Justin Muturi and the SRC against their colleagues over excessive allowances and skewed mileage.

A letter in court revealed that some legislators take home an extra Sh3 million (nontaxable) per month.

“This is morally wrong and unacceptable. This makes our parliamentarians the highest-paid employees in the world. They are also paid more than the presidents of Kenya and the US,” the letter written by former Makadara MP Benson Mutura reads.

 


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