The National Assembly now faces the uphill task of raising a super majority to overturn President Uhuru Kenyatta's memorandum that rejected an enhancement of the former MPs' monthly pension following the recommendations of its committee.
At least a two-thirds majority or 233 of the 349 MPs in the National Assembly are required to veto President Kenyatta's memorandum, a feat that is yet to be achieved by the House since the promulgation of the 2010 constitution.
The Finance and National Planning Committee, in its report to the House after considering the memorandum, wants President Kenyatta's memorandum on his refusal to sign the Parliamentary Pensions (Amendment) Bill, 2019, shot down in the looming showdown.
The Bill, sponsored by Leader of Minority in the National Assembly John Mbadi (Suba South), sought to have former MPs who served between July 1, 1984 and January 1, 2001, get an enhanced monthly pension of at least Sh100,000.
Currently, the MPs who served during the time take home between Sh2,000 and Sh8,000 while others get nothing despite serving the country.
The Bill sailed through in the House on August 5, 2020 but when it was transmitted for presidential assent, the President expressed his reservations on the advice of the Salaries and Remuneration Commission (SRC).
In the memorandum, the President argued that the Bill overlooks the mandate of SRC, which includes setting and reviewing of remuneration and benefits for all State officers among them the MPs.
But, in a bid to flex its muscles, the committee dismissed the President's reasoning, saying that inflation and high cost of living make it impossible for the former MPs to survive on the pensions they are earning currently.
"The committee, having considered the President's reservations on the Bill, recommends that the House agrees with its decision to reject the President's memorandum," the committee's report reads.
To return hope and smile on the faces of the former MPs, the committee noted that the President's reasons failed to factor the difficulties that the former MPs go through after their service in terms of employability unlike other government employees.
"MP's pensions are calculated according to the contributions paid into the scheme during their parliamentary term. The proposed amendment fails to provide for such calculation and makes no reference to the MPs' contributions," President Kenyatta says in the memorandum, in what looked like dashed hopes for the former MPs.
Had the President signed the Bill, the President's memorandum claims that it would have cost the taxpayer Sh444 million to pay the former MPs per year.
But a simple calculation based on the about 100 MPs who are still alive showed that they would have taken home a pension of Sh144 million annually.
The number of former MPs has been decreasing exponentially, from more than 500 to less than 100 in the last 11 years.
On July 28, 2015, Speaker Justin Muturi ruled that to veto the President's reservations on a Bill, including negating his proposed text, it would require a two-thirds or 233 of the 349 MPs voting threshold as provided for in Article 115 (4) of the Constitution.
On the other hand, it will require only a simple majority of the MPs in the House to pass the President's memorandum fully accommodating his reservations.
Since the 2010 constitution was promulgated, the National Assembly is yet to overturn any of the President's reservations on a Bill passed by the House.
SRC chairperson Lyn Mengich advised the President not to sign the Bill into law, arguing that it contravenes Article 230 (4) (a) of the constitution as pension is an employment benefit and, therefore, falls within its mandate.
"If the Bill is enacted into law, as proposed, it shall not only pile additional burden on the taxpayers but shall set the precedent and ripple effect for other categories of public officers to demand equal treatment and fairness. This shall, therefore, make the public pension liability unaffordable and fiscally unsustainable," Ms Mengich noted in the statement issued on August 13, 2020.
Pension is a contributory scheme between the MPs and the employer, the PSC, and is governed by the Parliamentary Pensions Act.
An MP who has served two terms from the 9th Parliament is entitled to a monthly pension of about Sh127,800 plus a lumpsum of Sh7.7 million before tax of 30 percent.
Mr Mbadi accused SRC of rushing to oppose the Bill despite declining to appear before the Finance and National Planning Committee as required at the time it was considering the Bill.
"SRC was invited for public participation on the Bill but snubbed it, which means that there is nothing on record in Parliament showing whether it approved or rejected the Bill," said Mr Mbadi.
"It should also be noted that this Bill has been with us for more than a year now. Why is SRC coming now as if the Bill was published the other day, approved by the House and taken to the President for assent?" Mr Mbadi asked.
The need to enhance the living pension for the MPs who served at the time is informed by the Akiwumi Tribunal report of November 12, 2009, which recommended the payment of $10,000 in minimum monthly pension to the former MPs.
At the time the tribunal made the recommendations, the exchange rate of the Kenyan shilling to the dollar was Sh80, which translated to about Sh80,000 a month.
In its report of June 2010, the Parliamentary Service Commission (PSC) that is in charge of the welfare of MPs and parliamentary staff not only adopted the Akiwumi report but improved the figure from an estimated Sh80,000 to Sh100,000.
The PSC report, which was subsequently laid on the table in Parliament, was adopted and passed without any amendments.
In the report of 2011, the House budget committee not only approved the recommended living pension but identified and allocated appropriate funding for the same.
