Constitutional Petition 175 of 2012 – Kenyans Mount Legal Challenge to MP’s Salaries and Gratuities Hike

Constitutional Petition 175 of 2012 – Kenyans Mount Legal Challenge to MP’s
Salaries and Gratuities Hike



Constitutional Petition 175 of 2012 (Jayne Mati v Attorney General & 2 Others)
was lodged before the Constitutional Division of the High Court of Kenya on 27th
April 2012 and after a hearing, before Lady Justice Mumbi Ngugi on the same day
at Milimani High Court, was certified as urgent.

Justice Ngugi ordered the petition be served on the respondents and to be heard
before Mr. Justice David Majanja on Thursday May 3rd 2012.  

The petitioner is Jayne Mati (of Mars Group Kenya) acting in defence of the
Constitution of Kenya and in the public interest. The respondents are the
Attorney General, the Speaker of the National Assembly and the Minister for
Finance.


On 19th April 2012, the Minister for Finance surreptitiously introduced two
Amendments to the Finance Bill which increased benefits to Members of the
National Assembly. Both amendments were passed largely without objection, within
minutes, on the same day.


The effect of the 1st amendment to the Finance Bill is to amend the National
Assembly Remuneration Act in order increase the pay of the Deputy Speaker of
Parliament and the members of the Chairmen’s panel by an additional
Kshs.2.4million per annum to be paid as Parliamentary Responsibility Allowance
with effect from the 1st of January 2006. The Parliamentary Service Commissioner
is similarly intended to receive an additional Kshs.1.2 million per annum paid
as Parliamentary Responsibility allowance with effect from the 1st January
2006.



The effect of the 2nd amendment to the Finance Bill is to increase the benefits
of all the members of the National Assembly by increasing their severance
allowance from the Kshs 300,000 per year already provided for to a severance pay
of Kshs 744,000 per year (multiplied over the years of service).



The Amendments are being challenged as having no effect, because they are in
violation of Articles 1, 2, 3, 10, 73, 75, 116, 122, 159, 230, 258 and 259 of
the Constitution of the Republic of Kenya.



The Petition was certified urgent for the following reasons:



  1. THAT  the National Assembly has passed the Finance Bill, 2011 with
amendments to the National Assembly Remuneration Act (cap 5) Laws of Kenya
purporting to review and/or increase the remuneration of the members of the
National assembly.



  2. THAT  the amendment to review the allowances of the members of the
National Assembly or any state officer without the say so of the Salaries and
Remuneration Commission is ultra vires Articles 230 of the  Constitution of the
Republic of Kenya.



  3. THAT  the passing of the Finance Bill, 2011 with amendments to the 
National Assembly and Remuneration Act (cap 5) Laws of Kenya directly infringes
Article 230 of the Constitution of Kenya which gives the mandate of reviewing
salaries and remuneration of all State  Officers to the Salaries and
Remuneration Commission.  Members of Parliament are State Officers.


  4. THAT  the amendments, aforesaid, are backdated and intended to take
effect from the 1st January 2006 and therefore will confer a direct pecuniary
gain to members of the 10th Parliament contrary to the express provisions of
Article 116 (3) of the Constitution of Kenya.



  5. THAT  the Finance Bill is imminently to be presented to the President of
the Republic of Kenya for his assent propagating the Infringement



  6. THAT    wanton violation of the Constitution for personal ends as have
been committed by the National Assembly is a most weighty matter that calls for
the urgent intervention of the Court to act in defence of the Constitution and
enforce the provisions of Articles 116(3) and 230 of the Constitution of Kenya.



  7. THAT  as such, this matter raises serious Constitutional issues and is
deserving to be given an urgent hearing.



This is test litigation with grave constitutional implications.  
Did the promulgation of the new Constitution not abolish the power of the
National Assembly to fix its own salaries, remuneration, benefits and
allowances?

The petition can be read at : http://blog.marsgroupkenya.org/?p=2914  


Mars Group Kenya
Watching Out For You