Increasing MPs’ Perks Is Illegal

Dear Prof Githu Muigai,

The latest attempt by Members of Parliament to hike their benefits, allowances, emoluments and gratuities is unconstitutional. You know this already: as a senior counsel as well as the principal legal adviser to the government, this is highly likely to have already been brought to your notice.

Moreover, you would most probably by now know that Jayne Mati of Mars Group Kenya has lodged Constitutional Petition 175 of 2012 for the proper adjudication and ruling on this matter which has been certified as urgent.

But it bears repeating to you because as Justice David Majanja stated while considering this application, it is of great national importance and public interest. In addition, you, of course, are sworn to “promote, protect and uphold the rule of law and defend the public interest” by Article 156 (1) (6) of the constitution.

First a bit of background: On April 19, 2012, the Minister for Finance introduced two amendments to the Finance Bill which increased benefits to Members of the National Assembly. The first amendment to the Finance Bill aims to increase the pay of the Deputy Speaker of Parliament and the Members of the Chairmen’s Panel by an additional Sh2.4 million per annum to be paid as Parliamentary Responsibility Allowance with effect from January 1, 2006. The Parliamentary Service Commissioner is similarly intended to receive an additional Sh1.2 million per annum paid as Parliamentary Responsibility allowance with effect from January 1, 2006. The second amendment to the Finance Bill seeks to increase the benefits of all the members of the National Assembly by raising their severance allowance from Sh300,000 per year already provided for to Sh744, 000 per year.

There are different grounds why this intervention by the Minister for Finance – with the full complicity of the National Assembly - manifestly fails the constitutional exam. Look, for instance, at the process that was followed in Parliament. The two motions for amendment of the Finance Bill were introduced for the first time on the floor of the House on April 19, 2012, included into the Finance bill, debated and passed.

These amendments were not published prior to their introduction as should ordinarily happen to ensure public participation, input and critique. Yet the constitution at Article 118 (1) (b) instructs Parliament to “facilitate public participation and involvement in the legislative and other business of Parliament and its Committees.” “Participation of the People”, and “transparency” are also two critical national values and principles of governance provided for under Article 10 of the constitution that have been violated by this act alone.

Moreover, questions of income, benefits, allowances, emoluments and gratuities are intrinsically and intimately personal in nature and character to those they accrue. In short, they wholly represent a personal interest to those whom they benefit. The constitution is very clear about how state officers, who include MPs, will conduct themselves when it comes to issues in which they have a personal interest. Article 73(2) (c), for example, requires state officers to render “selfless service based solely on the public interest, demonstrated by the declaration of any personal interest that may conflict with public duties.” Did all Members of Parliament declare this personal interest during this debate?

More starkly, Articles 75 (1) (a) and (b) of the constitution requires state officers to avoid “any conflict between personal interests and public or official duties” and “compromising any public or official interest in favour of a personal interest.” The conduct of MPs on this material day went in the opposite direction.

The constitution goes a step further: it talks about how issues around the “pecuniary interest” (related to money) of MPs are to be dealt with. Article 122 (3) states, “A member shall not vote on any question in which the member has a pecuniary interest.” So under what authority did MPs presume to increase their own financial benefits?

This is exactly why a Salaries and Remuneration Commission is established under Article 230 of the constitution. Its powers and functions are to, among others, “set and regularly review the remuneration and benefits of all State Officers.” Since MPs are state officers, the actions of the Minister for Finance and Parliament, blatantly violated the constitutional mandate of the Salaries and Remuneration Commission.

Since Parliament gained the authority to set its own salaries in 1999, Kenyan MPs have been habituated in constantly increasing their benefits to a level where it has been observed, “In Max Weber’s well-known phrase, Kenyan politicians now truly live off politics not for it.” One study on this phenomenon “suggests that Kenyan pay levels are far too high and are not driven by reward incentives for good performance”. It continues: “By international standards and the country’s poverty rate, the salary increase…seems excessive…”

This was a 2007/2008 study conducted for the World Bank Institute. Here’s another sample of its analysis: “After considering further allowances and grants this increase rendered Kenyan MPs among the highest paid legislators not only in Africa but in the world. Bearing in mind that Kenya ranks 148 of 177 countries in income inequality….this seems to be an outrageous development consistent with theories on rent-seeking (classical rational choice) behaviour in unconstrained institutional environments.”

The new constitution, as we have seen, has come in to constrain the institutional environment so that parliamentarians are no longer in control of their own remuneration and benefits. Should they continue in their folly, perhaps they should also consider that they are constitutionally restrained from being the beneficiaries of their own inconsiderate actions. For under Article 116 (1) (c) it is provided that “An Act of Parliament that confers a direct pecuniary interest on Members of Parliament shall not come into force until after the next general election of Members of Parliament”.

Mugambi Kiai is the Kenya programme manager at the Open Society Initiative for Eastern Africa. The views expressed in this article are entirely his own and do not reflect the views of OSIEA.