, NAIROBI, Kenya, Sept 13 – The Commission for the Implementation of the Constitution (CIC) has cautioned Members of Parliament that their new push to remove themselves from the classification of being State Officers can only be passed via a referendum.
The lawmakers are proposing an amendment to declassify MPs, judges, magistrates and County Representatives so that their pay is not set by the Salaries and Remuneration Commission.
CIC vice-chairperson Elizabeth Muli cautioned that the Bill will have far reaching implications, not only in the determination of remuneration and benefits in the public sector but also the country’s governance.
“Because of the wider implications of this proposed amendment, the view of CIC is these amendments ought only to be done through a referendum, if at all,” she said.
The commission argues that Parliament has the mandate to protect the Constitution saying that if MPs are allowed to remove themselves as State Officers, then they will be abrogating their constitutional duty.
“If you remove a certain cadre of offices from that state, then when it comes to those provisions where the Constitution is requiring the State to take legislative measures which bodies is this that is no longer within that concept is going to do this?” Muli said.
“There are certain ways of amending this Constitution that will lead to an illogical end and so we have to be very careful in determining the implications of this amendments,” The vice-chairperson told a roundtable meeting between the CIC, reporters and editors.
Commissioner Florence Omosa said if the amendment passes, it increase the wage bill and will leave MPs under the jurisdiction of the Parliamentary Service Commission, as has been the case before. Judges and magistrates will be under the Judicial Service Commission but it is not clear where members of County Assemblies will fall.
Omosa said if judges and magistrates are removed from the list, their appointments would not be guided by other sections of the Constitution as they would no longer be State officers.
But House Justice and Legal Affairs Committee chairman Samuel Chepkonga claimed that grouping them with the Executive blurs the line separating the two arms of government.
The Constitution lists the President, Deputy President, Cabinet Secretaries, MPs (Senators and National Assembly members), and Governors among State officers.
Senators and members of the Judiciary have neither indicated if they want to be removed from the list of State officers nor declared support for the Bill.
The Bill is expected to be brought to the House for its second reading when the MPs return from recess on September 17.
Two constitutional commissions had already cautioned that the amendments will have grave implications on the structure of government and operations and functions of constitutional commissions.
The Commission on Administrative Justice (Ombudsman Office) argued that the amendment will essentially render the mentioned officers in lower ranking public officers, compared to other State officers thus having a negative effect on the powers, responsibilities and remuneration.
The Salaries and Remuneration Commission, which has a mandate to set and regularly review the pay and benefits of all State Officers, has warned that a move by MPs to remove themselves as State Officers will bloat an already unsustainable public sector wage bill, which consumes a third of the country’s budget.
The battle between the SRC and parliamentarians was ignited by a pay cut in their salaries after the Commission noted that they were earning too much and the money should instead be channelled into other areas.