WE MUST STOP THIS THEFT...WRITTEN BY OKIYA OKOITI OMTATAH

A summary of issues raised in Petition No. 769 of 2008 asking the Nairobi High Court to scrap the Parliamentary Service Commission and recover public resources it has squandered on MPs. |Executive Summary | Overview | The Unconstitutional Powers of the PSC | Prayers to Stop Looting by MPs | | Other Discriminatory Practices | General Questions About Our MPs? | Kenya is a Republic | An Appeal to Patriotic Kenyans | 1.0 EXECUTIVE SUMMARY The Constitution of Kenya is the supreme Law of the Republic. It prevails over and voids any law that is inconsistent with it, to the extent of the inconsistency. This basic constitutional principle was quietly ousted in 1999 with the coming into force of the Constitution of Kenya (Amendment) Act that created the Parliamentary Service Commission (PSC). Members of Parliament (MPs) designed the 1999 Amendment Act to disable many important constitutional provisions that created an institutional framework of democratic controls, checks and balances anchored on the principle of separation of powers between the Executive, Parliament and the Judiciary. The law states categorically that it is superior to the Constitution, and where there is inconsistency between the two, it prevails. Hence, in its effect, the 1999 amendment overthrows the Constitution and elevates the PSC to another arm of government, or worse still, to a parallel government. Thus the PSC operates outside all counterbalancing constitutional controls. Under the guise of catering for the welfare of parliamentarians, the PSC has used its vast powers to pay parliamentarians unreasonable salaries and allowances, which it charges directly to the Consolidated Fund, unchallenged. Other than being a big drain on the Exchequer, the huge sums of money paid to MPs have bastardised politics to a point where Parliament is no longer the place where representatives serve the interests of society but a place to accumulate illicit wealth. It is for this reason that the contest for political power has become expensive, vicious and violent. Parliament is also increasingly becoming host to individuals with criminal records! In light of the above, a group of Kenyans have petitioned the High Court in Nairobi, seeking orders to have the PSC declared unconstitutional along with the law that created it. Further, they want the High Court to recover all the money and other resources the PSC has squandered on Parliamentarians since 2003. This case challenges the culture of impunity that is destroying Kenya. It is therefore important that as many citizens as possible enjoin in the case as petitioners, and also contribute resources, including their time and skills, to explain to Kenyans countrywide the illegalities perpetrated against them. This undertaking will prepare and strengthen Kenyans collectively to demand an end to impunity and enforce new leadership values. 2.0 OVERVIEW On Wednesday, December 10, 2008, seventeen (17) Kenyans filed High Court Petition No. 769 of 2008, at the Nairobi Law Courts, requesting that the Parliamentary Service Commission (PSC) be scrapped for violating the Constitution of the Republic of Kenya, and for flouting the republican ethics that prohibit public officials from using their offices for unjust enrichment and other forms of personal gain. 2.1 Background The hefty salaries and allowances paid to MPs through the PSC since 2003, and their refusal to pay taxes on the allowances, are merely the tiny ears of a submerged hippopotamus. The real monster is that Parliament, which is the official watchdog of our resources, has become the place for organised looting of those resources! Through the Constitution of Kenya (Amendment) Act No. 3 of 1999 that created the PSC, MPs disabled Section 48 of the Constitution which requires the President to assent to any Bill that increases taxation or charges expenditure on the Consolidated Fund (into which all revenues raised and received by the Government are paid before they are allocated in the budget). This self-serving law now allows MPs to charge their expenses directly to the Consolidated Fund without resort to any other authority. Charging the budget of the Parliamentary Service directly to the Consolidated Fund has completely undermined Parliament’s watchdog role. To make it worse, the PSC does not even table its budget estimates for debate in the House, where a conscientious MP may raise objections in the public interest. The PSC simply informs the Minister for Finance about its budget for the incoming year and the charge on the Consolidated Fund becomes a mere formality. Further, by disabling Section 48, not only are MPs free to dip their hands, unchallenged, into the public till for self-gain, they also have the power to tax Kenyans without recourse to any other authority. The only checks and balances that our legislators now have are their level of greed and their bank balances. Only these determine whether they loot more! The MPs also disabled Section 107(1) of the Constitution to give themselves, through the PSC, the power to hire and fire public servants without recourse to the Public Service Commission. MPs have thus influenced employment of their friends (including girlfriends and boyfriends), relatives, campaign managers and hangers-on, in the well-paying Parliamentary Service without regard to qualifications! 2.2 The History of the problem On November 4, 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 empower Parliament to have the independence necessary to undertake its functions free from control and manipulation by the Executive. Hence, the Constitution of Kenya (Amendment) Act No. 3 of 1999, which amended Section 45 of the Constitution, became law upon presidential assent on November 17 and became operational on November 19, 1999. It established the Parliamentary Service and the PSC – distinct from the Public Service Commission and the Judicial Service Commission. 3.0 THE UNCONSTITUTIONAL POWERS OF THE PSC The principle of separation of powers is entrenched in the Constitution of the Republic of Kenya. This principle dictates that the three arms of Government – the Executive, the Legislature and the Judiciary – do not interfere with each other, save to the extent that they act as institutional controls, checks and balances on each other. It is a total violation of the principle of separation of powers for MPs to take on the powers of the Executive to determine their salaries and allowances. Judges do not set their salaries and allowances. The President’s salary and allowances are set by Parliament, not the Executive. For proper checks and balances, the Executive must set the salaries and allowances of MPs as it used to do. MPs designed the PSC to subordinate the other three arms of Government and thus operate outside the institutional framework of controls, checks and balances provided for in the Constitution. The PSC operates as an employer, a trade union and an industrial court all in one. This has left Kenyans with no way of restraining MPs from adjusting their emoluments whenever they desire to do so. Remember also that Kenyans cannot recall non-performing MPs. By operating outside the constitutional framework of controls, checks and balances, the PSC has in effect become the “Other Government” of Kenya since it can increase the tax burden on citizens, charge the Consolidated Fund at will, and even borrow from and lend money to third parties. Citizens understand now how these powers have been abused and misused. The petitioners are seeking High Court orders declaring the PSC unconstitutional for having been established and for operating in contravention of the Constitution of Kenya, and for abridging the principle of separation of powers that promotes good governance. 4.0 PRAYERS TO STOP LOOTING BY MPS Since 2000, MPs have used the PSC to arbitrarily increase their salaries and allowances. They have also altered how they qualify for some allowances. For example, they changed their transport allowance from being mileage-based to a flat rate. This means that the MP for Starehe Constituency, which hosts Parliament buildings, earns the same transport allowance as the MP for Mandera Central Constituency, some 1000kms from the City! 4.1 Kshs 5,000 Sitting Allowance Members of Parliament are paid a sitting allowance of Kshs. 5,000 purportedly as an incentive to attend Parliamentary sessions. The National Assembly sits four times in a week (once on Tuesdays and Thursdays and twice on Wednesdays). Each MP therefore earns Kshs. 20,000 per week, translating to Kshs. 80,000 per month, for doing what s/he is already paid a salary to do. Further, MPs earn hefty allowances every time they participate in sessions of Standing or ad-hoc Committees; every time they travel on national business; and whenever they work over-time, or when Parliament is not in session. Since the mandate of MPs requires them to transact their business in the House, this payment is both immoral and illegal. The petitioners are seeking High Court orders to stop this anomaly, and further give order to recover all the moneys paid as sitting allowances to all MPs since 2003. 4.2 Kshs. 1.5 million “Winding-Up” Allowance The PSC approved and paid Kshs. 1.5 million “Winding-Up” Allowance to each MP in the 9th Parliament, calculated at the rate of Kshs. 300,000 per year for the 5-year term served. This is illegal since the contract term of the MPs was expiring not being terminated. Furthermore, about 35% of the MPs were elected back into the 10th Parliament from the 9th Parliament. Does it mean re-elected MPs will keep being paid to “wind-up” every time their terms end? Are MPs being bribed here, too, so that they go home after losing an election? The petitioners are asking the High Court to stop this allowance, and to order recovery of all the moneys paid out as winding-up allowances to all members of the 9th Parliament. 4.3 Kshs. 3.3 Million Duty-free Vehicles At the beginning of each five-year Parliamentary term, the PSC gives a Kshs. 3.3 million motor vehicle purchase grant to each MP, as well as the Speaker, Deputy Speaker, Vice-President, Ministers and Assistant Ministers. The PSC also gives each MP a car maintenance allowance of Kshs. 900,000 per year. For all intents and purposes, these vehicles belong to MPs. In deed, they possess private number plates, and are not surrendered back to the public/Government at the end of the parliamentary term. In any case, why would a top range vehicle costing Kshs. 3.3 million require such a hefty maintenance allowance even when it is brand new? And why would that amount remain uniform over the five years? To make matters worse, there is evidence that not all MPs use the money to purchase vehicles. Some MPs use the money for other purposes, but still claim the Kshs. 900,000 maintenance allowance. This is fraud, a crime in Kenyan law! Other than the maintenance allowance being illegal and immoral, items purchased using public money for official purposes must remain the property of the public. The petitioners are asking the High Court to order that the motor vehicles be identified as public/Government property by being fitted with GK number plates as is required by law. It should order that MPs surrender the vehicles at the end of each parliamentary term since they are public property. MPs from the 9th Parliament must surrender the vehicles purchased for them immediately. 4.4 Self-Exemption of MPs from the payment of income tax It is a fundamental duty of every citizen to pay tax. Payment of tax is based on one’s ability not status. The self-exemption of MPs from payment of tax on the Kshs.600,000 allowance they receive every month, and which is irregularly conferred under the National Assembly Remuneration Act (cap 5), is illegal. By exempting themselves from paying taxes on their allowances, MPs have abused Parliament’s legislative power and made rules that are discriminative. By conferring upon themselves benefits and advantages not available to other Kenyans, including public servants, MPs have breached the principles upon which taxation is based. Parliament has no constitutional powers to confer upon its members privileges and advantages that are not enjoyable by their electors and the general citizenry. If each MP in the 10th Parliament paid tax on both their salaries and allowances as other Kenyans do, the Government would raise more than Kshs. 3 billion which is more than what we require to resettle post-election violence Internally Displaced Persons (IDPs). Remember, the IDPs are still suffering one year after the post-election violence. The same money could also help in subsidising the price of maize flour (unga) for thousands of starving Kenyans around the country. The money could also subsidise agricultural inputs and thus aid in assuring food security, or better still, subsidise secondary school education. The petitioners are asking the High Court to declare that the law exempting MPs from taxation is unconstitutional, and to order MPs to pay all their taxes in full. 4.5 Stopping another PSC Tribunal Being Formed When Kenyans recently demonstrated against the taxation fraud by MPs, the Speaker of the National Assembly announced that another Tribunal would be appointed by the PSC to review the remuneration of MPs and deal with the issue of taxation. This is a self-serving action by beneficiaries of fraud. MPs should not be allowed to set conditions upon which they are taxed. Second, an entity put in place by self-interested parties cannot be expected to be independent and fair. For the reasons above, the petitioners want the court to stop the formation of such a Tribunal since it will simply be manipulated to justify the desires of MPs and the PSC. Further, because of the same argument, the report of the likewise appointed Cockar Commission that was used to astronomically raise MPs’ salaries should be nullified along with all the allowances the PSC made based on its recommendations since it was not an independent commission. As a matter of fact, most of the issues being petitioned were not contained in the recommendations of the Cockar report at all, but resulted from a commentary the PSC itself made on the Cockar Report! 5.0 OTHER DISCRIMINATORY PRACTICES 5.1 Fraudulent and Sexist Pension Framework On December 31, 1999, the President assented to the Parliamentary Pensions (Amendment) Act, No.9 of 1999, amending the Parliamentary Pensions Act (Cap 196). It was backdated to July 1, 1994, as its commencement date. Among others, the Amendment Act 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; removed limitations to a pensioner’ entitlement to commute up to one-quarter of his/her annual pension; and removed the requirement that to draw a pension, one had to have ceased completely being a member of the National Assembly, served for an aggregate of ten years and be aged at least 50 years of age. In effect, an MP can now 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. The amended Act is also sexist to the extent that it allows widowers (husbands) of women MPs to keep their entitlements despite remarrying, while widows (wives) of male MPs lose theirs if they remarry! This is outrageously discriminative against women. 5.2 Fraudulent Mortgage Scheme MPs have also abused their legislative power and discriminated against other Kenyans by giving themselves a taxpayer-funded mortgage scheme at the very low 3% interest rate a year when other borrowers pay theirs at much higher rates! 6.0 IMPORTANT GENERAL QUESTIONS ABOUT OUR MPS? 6.1.0 Why should we pay non-performing MPs so much? Our MPs don’t deserve to be paid the high amounts they earn for the following reasons: 6.1.1 Persistent lack of quorum Generally, our MPs are non-performers, who over the years have set a very poor record in the region and internationally. This lack of serious commitment to their work, which plays out in the frequent quorum hitch (failure to raise only 30 out of 222 members!), results in very few bills being passed compared to other parliaments in the region and globally. 6.1.2 Failure to interrogate and audit the National Budget This laziness hurts the country most in their annual failure to interrogate the National Budget to avoid wastage and outright corruption, and to ensure that revenue is used to address national priorities. But year-in and year-out, MPs have approved the budget largely unexamined, yet the law requires them to do so, and we elect them to ensure that our taxes are well spent. For example, this year they approved a budget of Kshs. 759,814,501,933 after examining only 9 votes out of the 55 presented by the Finance Minister. Civil society has examined this year’s budget and found that our MPs would have saved the country Kshs. 200 billion that is being lost through wasteful spending and corruption, including multiple allocations and payments to Anglo-Leasing type projects. It is amazing that our MPs did not spot or object to these payments. Kenyans must not pay for waste and corruption. Further, whereas this budget came after the post-election violence that was largely fuelled by mass youth unemployment, acute rural and urban poverty, poor infrastructure, and widespread insecurity, the National Budget, like those before it, proposed to spend 85% on day-to-day Government expenditure and only 15% on development to improve the welfare of the public by supplying services like infrastructure, health, education, and security. Ideally, MPs should have demanded that Government tightens its long belt of luxuries and spends at least 60% of the Budget on development to address poverty and its causes. Thus MPs have failed over the years not only to properly examine the National Budget to safeguard our taxes, but also to ensure taxes are used to deal with national priorities such as creation of employment for the youth. 6.1.3 Failure to interrogate and audit the Public Debt Register Whereas, on average, 20% of our taxes revenue is spent annually on servicing the Public Debt, MPs have never asked the Executive to publish the Public Debt Register so that the taxpaying public can know what we are paying for. They have also never demanded that Parliament must approve Government borrowing and expenditure of borrowed funds. Civil society is of the opinion that if the MPs cleaned up our Public Debt Register to eliminate odious debts we could reduce our debt burden by at least 40%. 6.1.4 Making bad laws The MPs have become notorious for passing bad laws that have ended up being challenged in court. They include the law that created the PSC. The most recent example of their excesses is the Kenya Communications’ Amendment) Bill, 2008, which they passed to enable the Government gag the media. 6.2.0 Mismanagement of CDF A major reason the Constituency Development Fund (CDF) is so blatantly mismanaged is that the CDF Act is another bad law our MPs made disregarding the constitutional principle of separation of powers. It is not the business of MPs to implement the laws they make; that’s the work of the Executive. Further, since the Controller and Auditor-General, who audits all Government expenditure including CDF reports to Parliament, it is not possible to hold MPs to account for mismanagement of CDF. They are, after all, passing a verdict on the evaluation of their work in their constituencies when they discuss and adopt the audit report. Ideally, MPs should not be in charge of the CDF. In India, for example, where the system works well, MPs work with their constituents to initiate projects to be funded but have no control on the allocated project funds or implementation of projects. 6.3.0 A Comparison of recent allocations to PSC and CDF The allocations for two consecutive financial years’ are indicated in the table below: Table 1: Comparison of Allocations for PSC and CDF FINANCIAL YEAR AMOUNTS IN KSHS PSC CDF 2007/2008 6,588,572,070.00 9,797,000,000.00 2008/2009 7,245,304,554.00 9,797,000,000.00 It is both outrageous and unacceptable that a country as poor as Kenya should spend Kshs 7.245 billion on 222 MPs, and Kshs 9.797 billion on 37 million citizens in a year. Do not forget that during the said period, Kenyans went through trauma caused by the post-election violence occasioned by the same politicians, which destroyed many livelihoods. Note also that in the two years, there was increase in the PSC allocation but not CDF. This shows where the real priorities of MPs lay: certainly not with the public they pretend to represent! Finally, do not forget the many cases of complaint against MPs on the use of CDF. MPs have used CDF corruptly; they have made their relatives, campaign managers and friends the ones in charge of CDF. Many of them have been sued by aggrieved members of the public because of corruption and for influencing allocation of CDF only to areas that support them! 6.4.0 Should MPs write the New Constitution? Given the very questionable, blatant, self-serving and recklessly arrogant manner the MPs conduct legislation, and misuse and abuse the power donated to them, it is frightening that the same MPs have abrogated themselves the veto power to oversee and direct the writing of Kenya’s much-awaited New Democratic Constitution. If their horrible legislative record and outright disregard for the rule of law are anything to go by, the MPs are the least qualified group of Kenyans to be entrusted with the onerous task of writing such an important document for the wellbeing of this and future generations. The sovereign people of Kenya should be allowed to monitor and oversee the entire process as a way of safeguarding their right to self-determination. 7.0 KENYA IS A REPUBLIC In their actions, the Petitioners are invoking the republican foundations of the Kenyan Nation. We are demanding that our leaders embrace the idea of governing the nation as a republic, with emphasis on liberty, rule of law, popular sovereignty and civic virtue practised by all citizens. Republicanism is about true representation in all spheres. Republicanism always stands in direct and firm opposition to any form of dictatorship, corruption, or tyranny. In a republic, elected representatives must use the power entrusted to them for the protection of the sovereign people, not their destruction. A republic is a government of laws, not of men. 8.0 AN APPEAL TO PATRIOTIC KENYANS Dear fellow Kenyan, You have a responsibility to ensure that our resources are put to correct use so that this and future generations can enjoy quality lives. Hence, we call upon you to join this case as a petitioner and be part of the rising army of patriots determined to resist oppression and political impunity, to stop the looting of our public coffers, and to fight for socio-economic justice. Jon and demand responsive, accountable and effective leadership. Help fight impunity and restore the people’s confidence in institutions of governance. Become a Petitioner today and demand a stop to the looting of public coffers and a refund to the taxpayer of the billions of shillings stolen so far. A better Kenya for all is possible!