• Do you fix your own salary or other benefits? Maybe if you run your own business — but then you have to generate the income to pay that salary.
The various parts of the Constitution work together. But it is not a machine. It is a set of directions, or sometimes guidelines, to human beings. And those who wrote the Constitution, and the people of Kenya whose ideas are included, were aware that human beings can be fragile, focusing on their own interests rather than those of the nation.
It is illuminating to look at the issue of MPs’ benefits and their relationship with the Salaries and Remuneration Commission (SRC) in light of these observations about the Constitution.
Should - can - MPs fix their own salaries?
Do you fix your own salary or other benefits? Maybe if you run your own business — but then you have to generate the income to pay that salary.
In the past MPs fixed their own salaries — the size of those salaries was included in the national budget, which has to be passed as law by Parliament (and signed by the President). But — unlike people running their own businesses — MPs are not also required to ensure that the country can afford the salaries they would like to be paid.
As long ago as the first Constitution of Kenya Review Commission, draft constitution in 2002, the proposal was to change this. Under the Constitution now, the task is given to the SRC. It is to “set and regularly review the remuneration and benefits of all State officers.” “State officers” include MPs, as well as the President and other members of the national and county executives, judges and various others (not much over 4,000 elite public servants altogether).
MPs try to evade the Constitution
MPs have never liked this limit on their powers. Almost their first act after the 2013 election was to try to fix increased salaries. This prompted the Occupy Parliament or 'MPigs' protest.
Soon after that, they seem to have realised that the constitutional provision about state officers’ salaries stood in their way. So some proposed to change the Constitution so that MPs were no longer state officers. This did not get very far. There are reasons why it is not easy to change a constitution.
But they have not given up on the idea — and this year have been trying to insist that they should be paid on a scale comparable to judges, plus demanding a monthly Shs250,000 housing allowance.
The SRC insists that MPs have no power to make this second decision. Incidentally, the Constitution also says that if MPs do make a law that benefits themselves financially (more than as ordinary citizens), this new law cannot be effective until after the next general election.
You may have read that in the past the SRC has lost its battles with MPs, agreeing to allowances to compensate for salary cuts. MPs’ treatment of the former SRC chair, when considered for an ambassadorship, will not have helped to stiffen the SRC’s resolve. One MP said, “I was shocked to learn that Sarah Serem could not even understand the role of an MP. I am happy today that she knows the role of an MP — that an MP can give or deny you a job.” Such arrogance, indeed, intimidation, is wholly against the Constitution.
Not long after this, Parliament reduced the provision for the SRC in the Supplementary Budget. MPs have insisted that they are not acting out of revenge. Unfortunately, the language used by some does suggest their motives are not the good of the country. But they seem to have learned that they would be wise not to vent their anger on bodies in Parliament (word for word reports of what they say are available online). Unfortunately, reports of what happened in parliamentary committees are less readily available. MPs insisted that this was not a “feud between Parliament and the SRC” but “to do with prudent use of public resources”.
They may also have realised that some things they cannot do. Particularly the Constitution says that the remuneration or benefits of a commissioner (including in the SRC) must not be reduced. The reason for this is obviously to prevent pressure being put on people like commissioners who are supposed to make independent decisions, in the best interests of the country, and not be intimidated by threats to reduce their benefits. It is to protect commissioners (judges are also protected) against what was done to traditional Yoruba chiefs in the then Western Region of Nigeria in the 1960s: for their opposition to the regional government, their salaries were cut to one penny. They became known as the 'penny Obas'.
Can the Constitution hit back?
Last week, Katiba Corner talked about recall of elected representatives. If an MP voted for reducing the budget of the SRC, not because the MP believed that this was right but because he or she wanted to take revenge on the SRC because of its objections to the housing allowance for MPs, would not this be a violation of Chapter Six of the Constitution? It does not bring “honour to the nation and dignity to the office” as Article 73(1)(a)(ii) requires. And it involves “conflict between personal interests and public or official duties” — which Article 75(1)(a) forbids. It also violates the national values of integrity and transparency — and calls for another value — accountability.
Would such behaviour be a valid reason for recall? Remember that the courts have said that provisions in the law that limit the grounds for recall and made the recall procedure almost impossible were unconstitutional.
And if an MP was recalled for such a reason, this might be a reason for not allowing the person to stand again. Article 75(3) says that anyone who has been removed from office for breaching Article 75(1) is disqualified from holding any other State office.
How well does this system work?
There is at least one case before the courts about the MPs and their housing allowance. And, as mentioned last week, the High Court approved the idea that MPs should have two years before they can be recalled (though it is not clear why that should be true if the complaint against an MP is of breaching Chapter Six). So the story is not over yet.
The MPS might be right — but not to treat one agency they have a dispute with differently from others. MPs have a special responsibility: they are part of the system of checks and balances, as well as being checked by others.
But you may have read that in the past the SRC has lost its battles with MPs, agreeing to allowances to compensate for salary cuts. MPs’ treatment of the former SRC chair, when considered for an ambassadorship, will not have helped to stiffen the SRC’s resolve. One MP said, “I was shocked to learn that Sarah Serem could not even understand the role of an MP. I am happy today that she knows the role of an MP — that an MP can give or deny you a job.” Such arrogance, indeed, intimidation, is wholly against the Constitution.
The basic design of the Constitution is clear — but not from just one Article. Some issues still need to be clarified. Interestingly, the SRC, defending itself, has said that “The Commission operates on a full-time basis, thus the Commissioners are not entitled to and are not paid any sitting allowance.” The Constitution says that “A full-time State officer shall not participate in any other gainful employment.” Presumably the SRC’s theory of allowances is that those who could have “other gainful employment” should be compensated by sitting allowances for forgoing other earnings. But why, then, do MPs get these allowances? Yet this provision in the Constitution was designed for MPs. Kenyans thought MPs should devote themselves full-time to their parliamentary work. Unfortunately, courts have failed to realise this and allowed lawyer MPs to practice as well as earning their generous salaries.
Commissions are set up, says the Constitution (Article 249) to protect the sovereignty of the people, to secure the observance by all State organs of democratic values and principles and to promote constitutionalism. But let’s be clear: commissions, too, are not necessarily always right in the way they use their money. The MPS might be right — but not to treat one agency they have a dispute with differently from others. MPs have a special responsibility: they are part of the system of checks and balances, as well as being checked by others. All state officers swear to respect and serve the people. MPs — as the elected representatives of those people — have a particular responsibility to set high standards for themselves and others.
Kenya has yet to develop a clear conception of the role of state officers, and how they should be paid.
The author is a director of Katiba Institute. She thanks Yash Pal Ghai and Ben Nyabira for useful comments.