The Salaries and Remuneration Commission (SRC) has opposed the government’s proposal to give MPs and judges the powers to set their own allowances saying it is unconstitutional in a memo to the National Assembly.
The memo on the Statute Law (Miscellaneous Amendment) Bill 2023 currently before parliament, seeks to reduce SRC’s powers to determine the remunerations of state and public officers among them MPs and judges.
If enacted in its current form, it will cost the country at least Sh4.6 billion a year in additional expenditure to implement the law, according to data independently obtained by Nation.
The Omnibus Bill seeks to empower the Parliamentary Service Commission (PSC) and the Judicial Service Commission (JSC) to set the local and foreign Daily Subsistence Allowances (DSAs) and transport facilitations of MPs, Judges, Magistrates and staff of the two commissions.
PSC is chaired by the National Assembly Speaker and includes seven sitting Senators and Members of the National Assembly, Senator Clerk as the secretary and two other members who shall not be sitting MPs- a man and a woman- to represent the public.
JSC is chaired by the Chief Justice, who is also the president of the Supreme Court and includes judges, magistrates and other members, who are not judicial officers to represent the public.
However, SRC secretary Mrs Anne Gitau warns in the memo that other than the Bill bordering on conflict of interest in the discharge of official duties among PSC and JSC members, it has the potential of escalating the country’s annual wage bill, which stood at Sh1.04 trillion in the 2021/22 financial year.
Mrs Gitau also notes that the proposed changes to the two laws go against the constitution that guards against conflict of interest in the discharge of official duties and should therefore be abandoned.
“SRC is of the considered view that the proposed changes are unconstitutional and recommends that they be deleted from the Bill,” Mrs Gitau says in the memo.
Article 230 (4) of the constitution empowers SRC to set and advise on the remuneration and benefits for state and public officers.
In doing so, the SRC engages PSC, JSC and Public Service Commission (PSC) and considers their proposals while ensuring that the public compensation wage bill is fiscally sustainable.
“It is critical to note that the composition of PSC and JSC is mainly state officers who would benefit directly from the transport and DSA allowances, which the Bill proposes to mandate the two commissions to set. This is contrary to Article 75 (1) of the constitution.”
In amending the Parliamentary Service Commission Act, the Bill specifically wants section 3 deleted and an introduction of new provisions under sections 5 and 18 to provide additional functions.
“The commission shall review and determine rates of reimbursement of the daily subsistence costs expended by members and staff of parliament in the performance of their duties,” reads the proposed new subsection 4 under section 18 of the Parliamentary Service Act.
The payment of DSA is meant to facilitate public officers to attend official assignments away from their duty stations within and out of the country, is a function of SRC.
Also proposed under section 18 of the Parliamentary Service Act, is a new subsection 3 that gives the PSC the powers to review and determine the rates of reimbursement for travel by motor vehicles for MPs “ by international best practice.”
The Bill proposes to introduce a new section, 13A, under the Judicial Service Act immediately after section 13 of the Act.
The proposal is to empower JSC to review and determine the nature of transport facilitation and the rates of reimbursement of the daily subsistence costs expended by judges, judicial officers and staff of the judiciary in the performance of their duties.
SRC is however of the view that the mandate of JSC to make recommendations on conditions of service expressly excludes remuneration and benefits.
“This therefore cannot be a basis for introducing an amendment to vest on JSC the mandate to set transport and daily DSA benefits. These benefits are not conditions of service,” the memo reads.
Data reliably obtained by Nation, indicates that the projected cost of the Bill, if enacted, is Sh1.91 billion in reimbursable mileage claims per year to the 416 MPs in the Senate and the National Assembly at the rate of Sh210 in fuel prices per kilometer.
The data shows that in five years, it will cost the country Sh34.93 billion in claimable mileage reimbursements, which is Sh9.55 billion extra compared to the current rates.
The distance from parliament to constituency offices is zoned in two bands- the 0-350 kilometre and the 351 kilometre and above.
The first band has up to a maximum return journey per week of 700 kilometres and has 163 MPs within it, meaning that if the Sh210 claimable mileage reimbursement was to apply, it will cost Sh6.23 billion in five years.
The second band has a maximum return journey per week of up to 2,078 kilometres and has 253 MPs.
This shows that if Sh210 price of fuel per kilometre were to apply, it will cost the taxpayer Sh28.71 billion within five years to facilitate the MPs. Currently, MPs consume Sh25.39 billion in mileage claims within their five-year electoral cycle for the two bands at the rate of Sh152.6 per kilometre.
This will have a ripple effect on the 1,450 MCAs, who currently earn Sh6.7 billion in five years in mileage reimbursement claims.
It is projected that this will go up by Sh1.33 billion to cater for the MCAs within five years if the Bill becomes law in its current form.
The Bill, if enacted as currently published, will also cost the taxpayer Sh1.34 billion in DSAs for the state officers, which includes Sh748.9 million in local tours and Sh587.7 million in foreign travels that are largely seminars and benchmarking trips. The annual local DSAs paid to judges and senior judiciary staff including the judiciary’s top management will consume an additional Sh374.6 million on top of the current Sh1.19 billion.
The figures are arrived at with the assumption that the local DSAs for judges is at Sh30,000, making them earn Sh206.4 million a year and Sh261.4 million a year in foreign DSAs at the rate of USD152,000.
The data projects that senior staff at the judiciary will pocket at least Sh1.4 billion in local DSAs at the rate of Sh20,000, and Sh413.7 million in foreign DSAs at the rate of USD121,600.
Currently, judges are paid a local DSA at the rate of Sh25,000 whenever on duty outside the workstations, which translates to Sh172 million a year.
They are also entitled to a foreign DSA of USD110,048 translating to Sh189.3 million annually.
The JSC staff including the top management of the Judiciary earn Sh15,000 in local DSAs, about Sh1.02 billion annually and USD100,016 in foreign DSAs, which is Sh340.3 million in a year.
The 416 MPs including senior staff members are expected to cost the taxpayer Sh536 million in local DSAs above the current figure of Sh422 million in a year.
They will also gobble Sh778.24 million in foreign DSAs in a year, which is above the current figure of Sh577.82 million.
The figure is projected on the assumption that an MP will earn a local DSA of Sh25,000 which translates to Sh416 million a year and Sh632.32 million a year if foreign DSAs at the rate of USD152,000.
Senior parliamentary staff are projected to earn Sh120 million in local DSAs a year at the rate of Sh15,000 and Sh145.92 million a year in foreign DSAs at the rate of USD121,600.
Currently, MPs are paid a local DSA of Sh18,200, which translates to Sh302.85 a year and are equally entitled to a foreign DSA of USD110,048 adding up to Sh457.8 million in a year.
The ripple effect of the proposed Bill if enacted in its current form is that it is assumed that all other state officers whose interests have not been factored in the Bill, will demand Sh25,000 in local DSAs which will translate to Sh960 million a year.
They will also demand a foreign DSA at the rate of USD 152,000, thereby costing the country Sh875.52 million a year.
Currently, the other state officers are paid Sh18,200 in local DSAs which translates to Sh698.9 million in a year and USD110,048 in foreign DSAs, which is Sh633.88 million a year.
