So MPs don’t want to be State Officers, any longer? Or at least the Committee on Justice and Legal Affairs don’t want them to be. In fact the Bill introduced by the Chair of the Committee to amend the Constitution would remove from the list of “State officers” in the Constitution not only Members of Parliament but Judges and Magistrates and members of county assemblies as well.
So – who are state officers under the Constitution? The others are the President and Deputy, Cabinet Secretaries, independent officers like the Auditor General, independent commissioners, like the IEBC, county governors and executive members, Principal Secretaries and heads of the various defence forces and police services. In other words, all the senior positions in the Kenyan system.
Why would they want to remove themselves from this distinguished company? The memorandum attached to the Bill says that
“This Bill is informed by the need to uphold the doctrine of separation of powers between the various arms of government. The Constitution through various provisions establishes the Judiciary, the Executive and the legislature level. By including all the officers of these three arms of government under the definition of State office, it compromises their independence.
This Bill also seeks to strengthen the governance of public institutions by ensuring that there is an efficient system of checks and balances between the different arms of government.”
Why does it matter whether person is a “state officer”? The Constitution says that a state officer:
Must respect the national values and principles of governance (like patriotism, national unity, the rule of law, democracy and participation of the people, human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalised, good governance, integrity, transparency and accountability)
Has the responsibility to serve the people, rather than the power to rule them, and must exercise authority as a public trust for the people
Must take an oath of office
Must behave, whether in public and official life, in private life, or in association with other persons, in a manner that avoids any conflict between personal interests and public or official duties or demeans the state office, and specifically must behave with honesty and complete integrity in financial matters.
There are disadvantages: a state officer who is full time must not have any other job – or “gainful employment”, must not have a foreign bank account, and must not have any citizenship other than Kenyan (except for Judges and members of commissions). No law can let a state officer off the hook of taxation.
Oh – and the Salaries and Remuneration Commission must “set and regularly review” the remuneration and benefits of all State officers.
Now we are perhaps getting closer to the truth. MPs seem to think that if they are not state officers they can fix their own salaries. The truth is that the Constitution also says that if MPs pass a law that benefits themselves, it does not come into legal effect until after the following general election. Amending that would not be justifiable on the basis of protecting independence of these officers.
In fact this protecting independence argument is a complete fig-leaf even in relation to the amendment that is proposed. It does not serve to protect from scrutiny the self-interested motives of the movers of the amendment.
Far from strengthening governance it weakens it, as the list of provisions relating to state officers clearly shows. There is no way that listing these officers in the Constitution, even though they are in different branches of government, reduces the separation of powers or the independence of judges, members of commissions or independent officers. Every one of those provisions is designed to strengthen governance. Requiring integrity, commitment to the rule of law, and other values makes the separation of powers and checks and balances more effective. The only effects of removing MPs (and county assembly members) from the list are to weaken them
The drafters of the Constitution were not as naïve as the MP s involved seem to think. It says that any proposed amendment to the Constitution that relates to, for example, “the national values and principles of governance referred to in Article 10” cannot be passed without a referendum. The movers of the Bill even claim it is related to “governance”. We have seen how very damaging to governance this change would be in reality.
Would the people of Kenya vote in a referendum to remove from MPs the obligations set out in Chapter 6, and the other responsibilities we have listed, or allow them to fix their own salaries or even those of their immediate successor as MPs?
The Constitution requires 90 days between the introduction of the Bill and the voting on it, to allow for public debate, a great opportunity for the people endorse those national values, and hopefully persuade MPs not to proceed in the interests of the nation – and indeed their own.
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