The Law Society of Kenya (LSK) and activist Okiya Omtatah vowed to move back to court to recover the ‘illegal pay’ after the High Court declared unconstitutional an action by MPs to increase their perks.
MPs pocket on average Sh1.2 million monthly after revoking notices by the Salaries and Remuneration Commission (SRC) that had pegged pay at a modest Sh774,800.
While MPs ‘lost’ the push to have their basic salary raised from Sh532,500 to Sh851,000, they secured concessions allowing them to pocket more money through their allowances.
These included a payment of Sh5 million upfront as a ‘car grant’, an apparently disguised advance payment of Sh83,333 a month, plus mileage allowances, that raised the benefits paid out to MPs to about Sh1.2 million monthly.
The 416 MPs — 349 members of the National Assembly and 67 Senators — secured the ceasefire deal to end the fight with SRC that annoyed lawmakers by decreeing that they will be paid a taxable Sh532,500 monthly salary.
Yesterday, LSK Chairman Eric Mutua said they were putting legal notes in order so as to move to court to seek orders requiring MPs to refund the illegal earnings they awarded themselves after quashing SRC gazette notices.
Mr Mutua, who was defending his seat in yesterday’s elections, said they are considering as a priority having the individual MPs surcharged for additional fundsreceived since March.
“That is our next move. We want the court to declare that whatever money theymay have earned, above what was stipulated in the SRC gazette notice, was wrong benefits and thus unconstitutional,” Mutua told The Standard.
Mutua expressed satisfaction with the court ruling, saying it had upheld the position that the lawyers have been advancing; that an interested party cannot set their own salaries.
“That was the reason for us moving to court. Now we want a declaration that earnings received by MPs above those set by Sarah Serem (SRC chairperson) are illegal and thus, they must be returned to public coffers. We must reclaim public money lost over that period,” said Mutua.
Activist Mr Omtatah said he would also pursue MPs to refund the illegal pay.
He said the plea to have the MPs surcharged for the extra payments was among the applications he had made to the court. Omtatah said he was thus expecting the judges to address the matter in their detailed ruling.
Court ruling
“What the judges gave us was a highlight. They promised to send us the detailed ruling and I am keen to find out if they have addressed that issue. If not, I will be returning to court,” he said.
He said there were many illegal payments that legislators had granted themselves, and which they should be compelled to return to public coffers.
“In my suit, I was also challenging the car grants that the MPs awarded themselves. I will be seeking to have the court declare them illegal as well and have all the vehicles that the MPs may have bought with the grant returned to the State,” he added.
The High Court rebuked Parliament for usurping the constitutional role of setting and reviewing the salaries for all State officers, which is vested on the SRC.
A three-judge bench of Isaac Lenaola, Mumbi Ngugi and Weldon Korir ruled that the National Assembly Remuneration Act, which has allowed MPs to set their salaries in the past, and which they relied on to increase their perks, is unconstitutional.
The House approved a report by Committee on Delegated Legislation that quashed the gazette notices by SRC, granting the legislators a leeway to award themselves heavy perks.
“The National Assembly Remuneration Act and Parliamentary Pensions Act, shall continue to govern remunerations of Members of Parliament,” read the report unanimously endorsed by MPs.
Mutua said they would approach SRC to tabulate the possible “illegal earnings” to form their petition to court.
However, National Assembly Speaker Justin Muturi laughed off the possible court action for refunds.
“I dare the LSK and anyone else who may so wish to quickly rush to court and obtain the orders but I can guarantee the same cannot be executed. Let them try,” said Mr Muturi.
The Speaker, who is also the chairman of the Parliamentary Service Commission (PSC), the body that looks after the welfare of MPs, maintained that Parliament has never set its own salary since the salaries commission was set up.
State officers
“Members earn salaries and allowances which were negotiated with SRC, nothing above that. LSK can go to court but it will be a waste of time,” said the Speaker.
Muturi argued that it was within the law for State officers — dissatisfied with the salaries set by the Serem-led commission — to negotiate for pay increment, saying this was the route the legislators took.
“It is not anything strange. Everybody negotiates for a pay rise. The problem is that when MPs act within this authority, someone thinks it is a process that is not legal,” he added.
Serem opted to restrict herself to the gist of the ruling, which she said was meant to “put the law straight” that only SRC had the mandate to set the salaries.
“The court confirmed what we were stating, that it is the duty of SRC to set salaries and that MPs could not rely on subsidiary laws, which have since been overtaken by the stipulations of the new constitutional dispensation,” she said.
“What Parliament wanted to do was to rely on stipulations of the Act, which they were using before the current Constitution, but now they have been told that the Constitution is supreme over any other law,” Serem said.
- The Standard
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