Kenya: MPs pay back 2.7 billion shillings in illegal housing benefits


Members of Parliament failed in their attempt to stop the recovery of at least 2.7 billion shillings they earned as illegal allowances.

Lawmakers, along with the Parliamentary Services Committee (PSC), had appealed to the Court of Appeal to seek the stay of a High Court order directing the clerks of the National Assembly and the Senate to deduct payments in full. illegal indemnities from each of the legislators. ‘ wages.

From 2018 to December 10, 2020, when the High Court issued the order, each of the 418 legislators earned a monthly allowance of 250,000 shillings for housing and housing allowance, without the approval of the Wages and Salaries Board. remunerations (SRC).

The PSC’s decision to pay the allowance to Members was made on April 24, 2019 and the payments were backdated to October 2018.

During the 26-month period, each MP had cumulatively received 6.5 million shillings, and each is now required to return the same amount to the Exchequer.

They wanted the Court of Appeal to suspend the recovery of the money and allow them to continue collecting the allowances, pending a decision on their appeal.

But a three-judge bench of the appeals court dismissed the claim, saying that while the case is defensible, its purpose will not be defeated if lawmakers reimburse the Exchequer for illegal allowances already paid.

“If the appeal is successful, all that will happen is that the CBC will pay the arrears that will be owed to the Attorney General. We do not see how the appeal will be rendered ineffective if the stay orders are not granted,” said Judges Wanjiru Karanja, Gatembu Kairu and Jamila Mohammed.

Lawmakers oppose the High Court’s finding that the PSC infringed on the CBC’s mandate by awarding it the contested benefits.

The bench of the High Court, composed of judges Pauline Nyamweya, Weldon Korir and John Mativo, ruled that the Constitution and the statutes do not confer on the Committee of parliamentary services any specific function to fix the salaries and allowances of the deputies and parliamentary staff .

The judges said that the only financial functions assigned to the PSC by the Constitution are budgetary, which is why the CBC acted within its mandate by directing the clerks of Parliament not to pay the said allowances.

“The accountants of the CFP and of the Parliament are therefore also guilty of not having fulfilled their obligations under the law on the management of public finances in this regard. For this reason, we therefore note that the aforesaid accountants have the obligation to recover the sums paid to the deputies “, declared the magistracy.

But in their appeal, lawmakers argue that the High Court justices misinterpreted the Constitution with respect to the roles of the CBC namely those of the PSC.

In an affidavit under oath from Jeremiah Nyegenye, who also serves as clerk of the Senate and secretary of the CPS, they state that the role of the SRC is with the remuneration and benefits payable to all government officials, while the CPS deals with facilitation of deputies.

While criticizing the High Court justices for issuing the statements they made and for ordering the repayment of the money that had already been paid, the Registrar reiterated that the CPS has a mandate to help legislators to carry out their constitutional and parliamentary functions. to serve the electorate.

“The PSC is an independent constitutional body like the CBC, but with different mandates,” said the Clerk.

Opposing the request, CBC Executive Director Anne Gitau argued that the compensation payment was illegal and should not be allowed to continue.

“It is in the public interest that monies paid out of public funds are returned or recovered from members of Parliament,” Ms. Gitau said.

She explained that the only housing allowance approved by the SRC is for a select group of state officers which includes the President, Vice President, Chief Justice, Associate Chief Justice, county governors, deputy county governors and chairpersons of county assemblies.

Urging that the High Court’s decision be upheld, Ms Gitau argued that the judgment correctly interpreted the law and that the pending appeal was not tenable.

Attorney General Kihara Kariuki also opposed the MPs’ candidacy, saying there is no guarantee that taxpayers will get the money back as there is no certainty that all MPs will be re-elected.

The case is a consolidation of three petitions filed by rights activist Okiya Omtatah and SRC, with the support of non-governmental organizations such as Katiba Institute, Law Society of Kenya and Transparency International-Kenya.

Mr. Omtatah said MPs are entitled to a mortgage of 20 million shillings per term to meet their housing needs, therefore any further housing allowance would be unreasonable. He said the allowances were backdated to April 2018.

In addition, he states that allowances given to MPs will create inequalities in pay and benefits for other government officials, which will lead to housing allowance applications from other government officials.

The SRC said that on January 31, 2019, the PSC wrote to it asking it to approve the housing allowances to be paid to each MP at the rate of 250,000 shillings per month, to enable them to rent houses in Nairobi in locations suitable for MPs.

Further, that the reasons given by the PSC in support of their request were that governors and deputy governors receive housing allowance, therefore MPs must also receive housing allowance and non- payment of a housing allowance discriminates against them.

They also argued that section 31 of the Employment Act requires an employer to provide an employee with reasonable accommodation close to the workplace.

Third, they argued that in other countries MPs receive a stipend to allow them to rent a hotel room or rent a house where Parliament is located. Finally, they told the court that a housing allowance of 250,000 shillings per month was budgeted for each MP in the 2018/2019 fiscal year.

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