WHAT WE ARE NOT SAYING ABOUT SELF-REWARD BY MPs

By Oduor Ongwen

A lot has been written and said about the recent hefty pay, allowances and other perks that our legislators awarded themselves. In my view, the salary increases and the Sh. 3.3 million- car ‘grant’ are just the ears of a hippopotamus (or tip of the iceberg, for those socialized in the Western tradition). The real heart of the matter is in the blank cheque they have given themselves in the guise of promoting ‘independence’ of the house, the pensions (not the retired president’s), the mortgage scheme (at 3% p.a when mortal Kenyans are repaying theirs at 22%!) and the Sh. 10 million medical insurance.

On 4th November 1998, the then MP for Alego/Usonga, Hon. Peter Oloo Aringo, moved a motion that:
“In order to promote and consolidate the dignity, independence and supremacy of Parliament, this House urges the government to take immediate steps, including the introduction of any necessary constitutional amendments, to establish a Parliamentary Service Commission which shall be directly responsible to the National Assembly.”

The basis for this motion, and subsequent constitutional amendment, was that there was need to strengthen and capacitate the Parliament so that it may regain the independence necessary for the purposes of directing, organizing, conducting and implementing its activities, free from the control and manipulation by the Executive. Among the specific objectives of the motion were:

• To improve and strengthen the roles played by various committees of the Parliament;
• To institutionalize parliamentary independence and to enable it to develop a sustainable organizational structure; and
• Catalyze the envisioning of an agenda for Parliament in the New millennium

Consequent to that motion, which was endorsed unanimously, a Bill to amend section 45 of the Constitution was brought before the House and unanimously passed. It became law and commenced on 19th November 1999, after receiving presidential assent on 17th November 1999.

This constitutional amendment repealed previous section 45 of the Constitution, which had created the office of the Clerk to the National Assembly, making it an office in the public service. Instead, it enacted a new part 1A (Sections 45A and 45B) establishing the Parliamentary Service and a Parliamentary Service Commission – distinct from the Public Service Commission and Judicial Service Commission.

Creation of Parliamentary Service Commission (PSC) and its powers
It provides that the new Parliamentary Service shall be headed by the Clerk to the National Assembly and staffed by such other officers as may be appointed by the Parliamentary Service Commission (hereinafter referred to as PSC). It further provides for the expenditure of the National Assembly to be charged on the Consolidated Fund.

Section 45B(5) outlines the powers of the PSC as below:

(i)    To constitute and abolish offices in the Parliamentary service

(ii)    To hire, fire, discipline and provide for terms and conditions of service of employees of the PSC.

(iii)    To provide the National Assembly with the services and facilities it needs for efficient and effective functioning.

(iv)    To exercise budgetary control over the PSC, and supervisory control over the administration, services and facilities it provides.

(v)    To catalyze the preparation and presentation, before the National Assembly, of annual expenditure estimates (i.e. budget) of the Parliamentary Service for the upcoming financial year.

(vi)    To facilitate the preparation and presentation before the National Assembly of annual audit reports of the PSC, to be known as “the accounts of the Clerk of the National Assembly.”

(vii)    To provide security staff for both the members and the precincts (its services and facilities) of the National Assembly.

(viii)    To periodically appoint an independent body to review and make recommendations on the salaries and allowances of members of the Assembly.

(ix)    To initiate, coordinate and harmonise policies and strategies relating to the development of the PSC.

(x)    To undertake, singly or jointly with other relevant authorities and organisations, such programmes as will promote the ideals of parliamentary democracy in Kenya.

(xi)    To do such other things, including review of powers and privileges as may be necessary for the well-being of the members and staff of the National assembly and to exercise such other functions as may be prescribed by or under an Act of Parliament.
Checks and balances strategically removed from Constitution
It is instructive to note that the tribunal (now famously known as the Cockar Tribunal) that recommended the recent salary and allowance hikes was established in accordance with Section 45B(5)(b) of the Constitution. It should also be noted that the Amendment Act disables sections 48 and 107(1) of the Constitution.

The purpose of Section 48 of the Constitution, which requires presidential recommendation, signified by a Minister before the National Assembly proceeds upon a Bill or motion (or amendment thereto) that imposes or alters taxation; imposes or alters a charge to the consolidated Fund or any other government fund; provides for the payment, issue or withdrawal from the Consolidated Fund … among others, was to create checks and balances on the spending powers of parliament. It was the office of the President that acted as the institutional check. Since the President himself was a member and leader of one of the parties, indeed the ruling party, there were justified fears that he could use this to strangulate or manipulate Parliament. However, this check was removed without institutional replacement. The only checks and balances that our legislators appear to understand is the size of salary check and their bank balances. It has, thus, created a situation where the Parliament has spending powers outside any institutional checks. This has led to a  mischievous situation where the temptation by honourable members to dip their hands into the public till for self-gain has become irresistible.

Salaries and Allowances illegally altered by MPs to facilitate looting
In August 2000, the Members of the National Assembly, in flagrant violation of the law, covertly and hastily increased one of their allowances almost three-fold from a maximum of KSh. 118,000 to a uniform KSh. 336,000 per month. They in the same stroke altered how they qualified for this allowance from being mileage based to flat rate. This means that the MP for Starehe in whose constituency parliament buildings stand earn the same transport allowance as an MP from Moyale. Below are the current earnings of various categories of parliamentarians:

OFFICER	SALARY	SITTING*	CONSTI TUENCY	TRANS PORT	ACCOMO DATION	RESPON SIBILITY	TOTAL
SPEAKER	10,000	48,000	5,200	336,000	50,000	16,200	465,000
DEPUTY SPEAKER	10,000	48,000	5,200	336,000	45,000	9,000	453,000
VICE PRESIDENT	10,000	48,000	5,200	336,000	66,666.65	16,500	482,366.65
MINISTER	10,000	48,000	5,200	336,000	50,000	10,870	462,070
ASSISTANT MINISTER	10,000	48,000	5,2000	336,000	41,666.65	8,000	448,868
MEMBER OF PARLIAMENT	10,000	48,000	5,2000	336,000	33,333.30	7,500	440,033.30

The bottom line: MPs wanted to increase their pay
A sitting allowance of KSh. 3,000/= was retained. As the assembly sits four times in a week (One sitting each on Tuesdays and Thursdays and two sittings on Wednesdays), a diligent member would earn KSh. 12,000/= per week translating to KSh 48,000 per month. Every time a Standing or ad-hoc Committee meets, the participating MPs earn a sitting allowance; every time they travel, ostensibly on national business e.g. recent tour of Asia and Europe by members of the Energy Committee, they earn; any time they work when parliament is not in session or over-time, they earn.

The bottom line was that the goal of the MPs was to increase their pay. Calling it transport allowance was nothing but a poorly thought-out smokescreen. As a firm believer in the building and nurturing of strong and independent democratic institutions, the Council believes in adequate remuneration for members of parliament to keep them from temptation of corruption and absconding from their principal duties in search of kiosks to run. The most dishonourable thing done by the honourable members was to resort to a subterranean approach. Had the matter been debated in the open House, so that all Kenyans could discuss it in other forums, a measure of honour, which our parliamentarians richly deserve, would have been retained. This, however, had all the trappings of a “backroom deal”, brokered between PSC and the Treasury with little official information filtering out, save for well-spinned press releases with scanty details. Being backroom deals not discussed on the floor of the House, the matter was not reported in the Hansard, from where researchers and members of the public could be able to analyze it. In the same stroke the MPs also doubled the cost of their duty-free vehicles to KSh. 2 million.

Fraudulent Pension Framework and private Insurance Cover
On 31st December 1999, the President assented to Parliamentary Pensions (Amendment) Act, No.9 of 1999 amending the Parliamentary Pensions Act   (Cap 196). It was backdated to 1st July 1994 as its commencement date. The amendment Act achieved the following:

•  Raised the rate of accumulation of interest on contributions from 3% to 15%

•  Raised the percentage of the sum deductible from payments of pensionable emoluments from 5% to 12.6%

• Doubled the amount payable annually as pension from one six-hundredth of the Members’ pensionable emoluments for each completed month of the aggregate period of reckonable service.

• Whereas before a member entitled to pension was entitled to commute up to one-quarter of his/her annual pension at an equivalent of twelve-and-a-half times the amount commuted, now a member can commute up to 15 times that amount. Prior to this amendment’s enactment, the option of commuting had to be exercised on or before retirement day; and if thereafter, only once and with the approval of the Management Committee (Comprising the Speaker and Clerk of the National Assembly; the Attorney General and the Permanent Secretary to the Treasury or their representatives; the Accounts Controller of the Treasury and 3 members of the National Assembly).

• By deleting and replacing provisions, Members can now potentially commute it infinite times, at any time before or after retirement and need not obtain the Committee’s or any approval.

•  While one had to have ceased completely being a member of the National Assembly, served for an aggregate of ten years and aged at least 50 years of age to draw a pension previously, this is no longer a prerequisite. In effect, one can draw a pension after attaining 40 years and serving a single term in Parliament; whether or not s/he is serving a second or subsequent term.

• In the previous arrangement, the Management Committee solely appointed actuaries for the purposes of the Act. Now the Committee makes, as a token, such appointments “on recommendation of the Treasury.” If it is noted that the role of actuary is to review once every 10 years or as the President may direct - the relationship between contributions made and benefits paid out to ensure that contributions made approximate one-third of the benefits paid out. Under the Amendment act, the Management Committee may now direct (“make recommendations”) to the actuary “for the better carrying out of the objects of the Act.” This, in our considered view, amounts to “recommending to the “auditor” how to audit you.

• Section 13(3) of the act provided that a widow who was entitled to her late husband’s pension (under this Act) loses it if, and for as long as, she remarries. Section 13(6) previously provided for the same disentitlement for a widower of a pensionable woman member with the words “… and that pension may be terminated on the direction of the Committee in the event of his remarriage.” These words have now been struck off, without deletion to similar provisions to section 13(3). The possible effects of this is that widowers of women Members may now keep their entitlements despite remarrying while widows of male Members lose theirs! Another case where the august House, which is supposed to be the archetype of justice, is manifestly encouraging, and practicing, the discrimination against women.

At around the same time, members of parliament negotiated, through the PSC, a lucrative insurance cover with the Insurance Company of East Africa (ICEA). Information available reveal that this was a purely private contract between persons capable of being insured as a group i.e. parliamentarians and an insurer. Further the premiums are deducted from the MPs’ salaries through a check-off system. As such, this cover is not financed from the public coffers (the Exchequer). It is therefore, not objectionable. Indeed, with the increasingly violent nature of Kenya’s politics, it is highly recommendable.