The political and legal circus Kenya is being subjected to points to only one conclusion - that we are yet to transit to the 2010 constitution.
Basic tenets of separation of powers and constitutionalism are being watered down by a political class that is either ignorant or has a contemptuous attitude towards the constitution. Indeed, a large number of politicians supported the then draft constitution purely for political expediency. The political class was not ready to cede power to the people through a constitution that provided for actual separation of powers and the rule of law. The contagion of contempt towards the constitution that started with the last Parliament has caught up with the current House, county governments, sections of the Executive and the so-called activists. This is within a Kenya that is not short of legal and political advisors who have an in-depth understanding of the constitutional architecture.
One scenario that has been playing to the public gallery is the ongoing spirited campaign by MPs to have their salaries increased and disband the Salaries and Remuneration Commission. The SRC is mandated to set and regularly review the remuneration and benefits of all state officers - including MPs. The SRC as a constitutional commission, is meant to protect the sovereignty of the people and secure the observance by all state organs of democratic values and principles.
Article 10 of the constitution sets human rights, equality and non-discrimination as forming national values and principles of governance.
While the SRC was within its constitutional mandate to set the remuneration of state officers, it reduced the traditional remuneration of MPs but increased or retained the high salaries of members of constitutional commissions and independent offices. No credible reason is given for this. Doesn't this really amount to discriminatory action against the MPs? Why a reduction in MPs salaries and not that of all state officers?
Article 41 of the constitution provides that every person has the right to fair labour practices, fair remuneration and reasonable working conditions.
Looking at SRC's remuneration matrix, it falls short of looking into a wholesome approach to fair remuneration and reasonable working conditions. For example, did the SRC pay attention to factors such as office facilities? Apart from the ultra-modern new chamber, do MPs enjoy the same cutting edge technology and personnel in their assigned constituency offices? Is the working environment one befitting a state office? An attempt to fetter one's right to enjoy their rights and fundamental freedoms is an affront to the constitution.
This brings me to the MPs actions. While pretending to fight for their labour rights, they are going against the grain of constitutionalism and rule of law. By seeking to disband the SRC, they are sending a clear message of their contempt for the constitution.There are clear constitutional processes to address any issues arising - a judicial process to review SRC's decision or initiate a process for the removal of members. The latter would be an uphill task.
While the SRC is protected by the constitution, the Salaries and Remuneration Act may be amended by Parliament.
If Parliament in its wisdom or otherwise seeks to amend the Act, no activist or institution can pretend to fetter the constitutional legislative powers of the National Assembly. Thus, while Parliament cannot vary the powers of the SRC, they have constitutional power to look into the SRC Act. This may be seen as arm-twisting a constitutional commission through political means; in any case the constitution and legislation are all political documents borne through a political process.
In essence striking a balance between the rights and powers of SRC and Parliament is a constitutional minefield. Spirited activists who have created a faux consensus of the populace have also exhibited this old thinking. They purport to speak for all the citizenry.
They should take note that the sovereign power of the constitution is delegated to Parliament, county legislative assemblies, the executive, the Judiciary and independent tribunals. The writer is an advocate of the High Court of Kenya who comments on social issues.