Nairobi — The Commission for the Implementation of the Constitution has warned that MPs might find themselves in blatant violation of the Constitution and their own rules if they go ahead to vote for the adoption of a report that recommends quashing of a notice that set out their new pay.
A statement from CIC warns the Parliamentary Service Commission, which pays MPs, that it will be held responsible "for any loss of public funds occasioned by any illegal payments."
Article 226 of the Constitution which touches on Accounts and Audit of Public Entities, states in part 5 that if the holder of a public office, including a political office, directs or approves the use of public funds contrary to law or instructions, the person is liable for any loss arising from that use and shall make good the loss, whether the person remains the holder of the office or not.
The CIC statement comes as MPs prepare to debate and approve a report of the Committee on Delegated Legislation that seeks to quash a Legal Notice that set their monthly pay at Sh532,500 with an annual increase of Sh44,375.
CIC says quashing the gazette notice touching on the salaries is of no effect as the new salaries and benefits are already set and communicated to the institutions responsible for paying salaries and benefits.
The Charles Nyachae-led commission says the Constitution adds at Article 116(3): "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."
This means, MPs in the 11th Parliament will not benefit from their quest to overturn SRC's remuneration package. This is because they swore to "obey, respect, uphold, preserve, protect, and defend" the Constitution.
The committee resolved that the National Assembly Remuneration Act (Cap 5) and the Parliamentary Pensions Act (Cap 196) of the Laws of Kenya should continue to govern the remuneration of MPs.
CIC says that the salaries commission only gazetted the new salaries as a sign of goodwill, even though they are legally not required to.
The commission argues that the Act is void under Article 2(4) to the extent that it is inconsistent with Article 230(1) of the Constitution.
"In any event as MPs arrange to vote on the motion on quashing the gazette notice, they should note the provisions of Article 122(3) which provides that "a member shall not vote on any question in which the member has a pecuniary interest," the statement by CIC read.
MPs want to undo Gazette Notice Nos 2885, 2886, 2887 and 2888 published by the Salaries and Remuneration Commission in the Gazette Notice of March 1, 2013.
At the same time, CIC says the Senate must be involved in the approval of the Division of Revenue Bill.
The commission disagreed with Speaker of the National Assembly Justin Muturi who had ruled on Thursday that the Senate had no power to amend the Bill.
CIC claims Muturi had read the Constitution selectively and stated that the Division of Revenue Bill was rightfully before the Senate because it determines the sharing of revenues between the national government and the 47 county governments.
Article 95(4)(a) of the Constitution gives the National Assembly the duty of determining the allocation of revenues between the two levels of government, that provision has to be read with article 218 of the Constitution, which provides that it is the two Houses of Parliament that have to determine the sharing of revenues by processing the Bill.
The commission also warns that the power feud between the Senate and the National Assembly will have detrimental consequences if not resolved with the public interest in mind.
The team which is charged with overseeing the implementation of the Constitution said the law provides for a mediation committee, to negotiate any discrepancies between the two chambers of Parliament.
Laban Wanambisi is a Parliamentary and Political reporter. He joined the Capital Newsteam in 2005. Since then, he has reported on many of the major news events over the years including his first major assignment covering the 2005 National Referendum on the Draft Constitution, and several other subsequent key national and international events.