From: Okiya Omtatah Okoiti

We, Kenyans for Justice and Development (KEJUDE) Trust, are planning street demonstrations and pickets targeted at the office of the Chief Justice for refusing to appoint a bench of judges to hear and determine our Petition No. 769 of 2008. The said petition was filed on December 10, 2008, by 17 Kenyans as an extraordinary public interest lawsuit at the Nairobi High Court questioning the constitutionality of the Parliamentary Service Commission (PSC) as currently constituted and structured, and how it operates. The Petitioners wanted the High Court to annul the Constitution of Kenya (Amendment) Act No. 3 of 1999, for being unconstitutional. The said Act, which created Section 45B of the Constitution, established the Parliamentary Service Commission (PSC) as the rogue Fourth Arm of the Kenyan Government.

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. The PSC has in effect become the “Other Government” of Kenya since it increases the tax burden on citizens, charges the Consolidated Fund at will, and can even borrow from and lend money to third parties. This has left Kenyans with no way of restraining MPs from adjusting their emoluments whenever they desire to do so.

The 17 Petitioners are seeking High Court orders declaring the PSC unconstitutional for having been established and for operating in contravention of the current Constitution of Kenya. They want the High Court to stop the looting of public coffers by annulling the PSC along with all the illicit privileges it has bequeathed MPs. They also want the High Court to recover all public assets and monies lost through payment of irregular allowances to Members of Parliament since the PSC was formed. These include but are not limited to:

i. The Kshs. 5,000 sitting allowance paid to each MP as an incentive to attend Parliament. This is unacceptable because MPs are elected to attend Parliament and they are paid a huge salary to do so. The petitioners want to recover from past and present MPs all the money they have paid themselves as sitting allowances.

ii. The Kshs. 333 million “winding-up” allowance the 222 Members of the 9th Parliament irregularly paid themselves (each getting Kshs. 1.5 million) at the end of their parliamentary term. The term expired; it was not being terminated. The petitioners want the High Court to recover the money and ban any future payment of this allowance.

iii. The 225 vehicles each costing Kshs. 3.3 Million Duty-free (total Kshs.742.5 million) the government bought for each MP, the Speaker, the Deputy Speaker, and the Vice-President at the beginning of the 9th Parliament, but which they all refused to surrender at the expiry of their parliamentary term in 2007.

The petitioners also want the High Court to scrap the illegal self-exemption of MPs from the payment of income tax, irregularly conferred under the National Assembly Remuneration Act (cap 5), on the more than Kshs. 600,000 monthly allowances each MP receives, and to recover all taxes due on the same since 2003.

The Petitioners want the High Court to nullify the reports of the irregularly appointed Cockar and Akiwumi tribunals that, respectively, was and is being used to irregularly raise MPs’ salaries and allowances. Both tribunals were appointed by the very MPs who were the beneficiaries. Since the appointing authority lacked the independence required by the law, they were mere consultancies. The two tribunals are not the independent commissions required by law to set the salaries of MPs. An entity put in place by self-interested parties cannot be independent or even fair.

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 much higher rates!

In the latest outrage, the MPs have recommended further constitutional illegalities like establishing retirement packages for the Prime Minister and the Vice President, ostensibly because the President receives a similar package. The reasons the President has a retirement package cannot be applied to the Prime Minister and the Vice President who are free to seek and occupy any public office in the country.

We take this opportunity to call upon Kenyans to begin demanding that the cost of both the political and administrative wings of Government must be radically reduced so that we can save resources for development. It is unacceptable and extremely dangerous for our Republic that only 3% of the current Kshs. 1 trillion National Budget estimates is set aside for development. The ideal for a developing country like Kenya is to embrace austerity measures that ensure we spend at least 60% of our taxes on development and not more than 40% on recurrent expenditure that is largely administrative.

Though the Proposed Constitution has an express provisio barring anybody from determining their own salaries, it is no saving grace because the said draft Constitution also recommends the establishment of a bloated political and administrative bureaucracy that will see a much bigger chunk of our resources being dedicated to recurrent expenditure. To sustain the bloated bureaucracy we will have to spend far beyond what our revenue base can produce. That means we will be forced to borrow so that we can finance recurrent expenditure.

The time is nigh for us to stop being trapped by our own myths, that economic non-rationality can possibly result in development, which occurs in the material world and not the spiritual domain. We are not a special case that is not subject to the laws that govern societies in other regions of the world. We are not immune to economic rationality which is the basic ingredient of the political economies of developed nations.

Development must involve capital accumulation, industrialisation, the transformation of productive forces through machine technology and efficient systems of production and service delivery. It must involve the rationalisation of thought that is a move away from superstition and traditionalism. The economy must be given primacy in the political system.

Since the Hon. Chief Justice Evans Gicheru has refused to have our Petition heard and determined, we hold him personally liable for the latest outrageous display of impunity by Kenyan MPs who are planning to astronomically hike their salaries and allowances in total disregard of the needs of our economy. The MPs highly embellished then adopted the Akiwumi Report well aware that the Judiciary, under Hon. Evans Gicheru, cannot be asked to hold them to account.

We demand that within 14 days, the Chief Justice appoints a bench of judges to hear and determine our Petition, or we will organise targeted peaceful mass action and pickets at his office until he does so.

We will spare no one and nothing that seeks to shackle us to poverty.

Signed:

Neto Agostinho – 0722-467-365 Date: Saturday, July 10, 2010

National Convener,
Kenyans for Justice and Development