Taxes and Public Sector Pay: A Suggestion about the MPs Gratuity Award

Post date: Tue, Oct 9, 2012
Category: General
By: IEA Kenya,

In the last few days, the various channels for news have been reporting public outrage and protest at the fact that the legislature awarded its members an exit allowance and gratuity payments. There are two main arguments stated so far. The first, and less potent in terms of legal effect is that the awards which will come to an average of Kshs. 9 million per legislator is excessive. This argument is valid only in its moral sense because it appeals to the ability of individual members of parliament to accept that pay at that level represents avarice and disregard of public opinion. Unfortunately, this moral claim does not have any force of law.

The second and most effective argument is that the legislature passed this law in stealth and against the specific constitutional requirement that forbids any body to adjust its own pay. Specifically, article 230 (4) a, of the constitution spells out that the salaries and Remuneration Commission is the body authorized to “set and regularly review remuneration and benefits of all state officers”. For the legislature to award to its members the complicated exit package without reference to the Salaries and Remuneration Commission is patently unconstitutional. This is a far firmer ground on which to base opposition to the blatant action.

Knowing that there is a defensible reason for opposition to the actions by parliament, what options exist? To my mind, the constitution itself provides the opportunity to for such errors to be internally corrected before any action is taken in court. As many have stated, it is possible that the president may refuse to assent to the bill and thereby call out MPs for this flagrant disregard of the constitution. That though, is going too far because there are significant checks provided by the constitution that should be explored first.

The Controller of Budget is an independent officer of the state established by article 228 of the constitution. Reading further under 228(5) of the constitution, the controller of budget is specifically required not to approve any withdrawal from a public fund unless satisfied that the withdrawal is authorized by law. In my view therefore, there is sufficient bulwarks against any errors that the legislature may commit. It’s up to these independent offices to take to the plate. To talk straight about it, the Controller of Budget should refuse to authorize that withdrawal when it falls due. That is what the rule of law is. The constitution lives!

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