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|Case Number:||Petition 227 ,281 & 282 of 2013 (consolidated)|
|Parties:||Okiya Omtatah Okoiti , Law Society Of Kenya (Lsk) ,Cosmus Ngeno Koech,Daniel Chege Kamau & Uzalendo Institute For Leadership And Democracy v Attorney General, Parliamentary Service Commission, Salaries & Remuneration Commission,National Assembly,The Speaker Of Thenational Assembly,The Controller Of Budget,The Clerk Of The National Assembly & The Clerk To The Senate|
|Date Delivered:||05 Feb 2014|
|Court:||High Court at Nairobi (Milimani Law Courts)|
|Judge(s):||Isaac Lenaola, Mumbi Ngugi, Weldon Kipyegon Korir|
|Citation:||Okiya Omtatah Okoiti & 3 others v Attorney General & 5 others  eKLR|
|Court Division:||Constitutional and Human Rights|
CONSTITUTIONALITY OF ACTS OF PARLIAMENT PERTAINING TO THE REMUNERATION & BENEFITS OF MEMBERS OF THE NATIONAL ASSEMBLY
Okiya Omtatah Okoiti & 3 others v Attorney General & 5 Others  eKLR
Petition Number 227 of 2013
High Court of Kenya at Nairobi
Constitutional and Human Rights Division
I Lenaola, M Ngugi, W K Korir JJ.
February 5, 2014
Reported by Emma Kinya and Opiyo Lorraine
On 1st March, 2013 through a Special Issue of the Kenya Gazette, the Salaries and Remuneration Commission (SRC) (3rd Respondent) published the remuneration of various categories of state officers. The gazette notice specifically dealt with the remuneration of Members of Parliament (the Senate and the National Assembly). The Members of the National Assembly were aggrieved by the terms set for them on their remuneration and benefits by the 3rd Respondent and they immediately put into place mechanisms for setting aside the decision of the 3rd Respondent as contained in the notice. This culminated in a resolution by the National Assembly to nullify all the notices contained in the Special Gazette Issue. The resolution was communicated to the 3rd Respondent through a letter with a Certificate signed by the Clerk to the National Assembly annexed to it.
Constitutional law – jurisdiction – jurisdiction of the High Court to determine issues arising out of parliamentary debates and resolutions – circumstances in which the court can interfere with parliamentary debates – duty of the High Court was to check the constitutionality of the resolutions and statutes made by the legislature.
Constitutional Law – Constitutional Commissions – mandate of the Salaries and Remuneration Commission to determine the remuneration and benefits of members of the National Assembly – where the members of the National Assembly passed a resolution nullifying the Gazette Notice published by the SRC regulating the remuneration of the members of the National Assembly – whether the resolution passed by the national Assembly was unconstitutional – whether the conduct of the members of the National Assembly amounted to gross misconduct – Constitution of Kenya, 2010 article 230 (4)(5), 249, 251; Salaries and Remuneration Commission Act, 2011 section 11
Constitutional law – interpretation of Acts of parliament – whether certain Acts of parliament pertaining to the remuneration and benefits of members of the National Assembly are unconstitutional – Parliamentary Pensions Act, National Assembly Remuneration Act (cap 5)
The national assembly exceeded its mandate by purporting to annul Gazette Notices issued by the SRC on 1st, March 2013. Its decision was therefore both unlawful and unconstitutional.
In view of the provisions of article 260 of the Constitution of Kenya, 2010 the National Assembly Remuneration Act was unconstitutional.
No order as to costs.
|History Advocates:||Both Parties Represented|
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. 227 OF 2013
OKIYA OMTATAH OKOITI......................................................PETITIONER
ATTORNEY GENERAL......................................................1ST RESPONDENT
PARLIAMENTARY SERVICE COMMISSION....................2ND RESPONDENT
SALARIES & REMUNERATION COMMISSION................3RD RESPONDENT
NATIONAL ASSEMBLY....................................................4TH RESPONDENT
PETITION NO. 281 OF 2013
LAW SOCIETY OF KENYA (LSK) ............................................PETITIONER
THE NATIONAL ASSEMBLY OF THE
REPUBLIC OF KENYA......................................................1ST RESPONDENT
THE PARLIAMENTARY SERVICE COMMISSION.............2ND RESPONDENT
THE SPEAKER OF THENATIONAL ASSEMBLY.................3RD RESPONDENT
THE HON. ATTORNEY GENERAL.....................................4TH RESPONDENT
THE SALARIES & REMUNERATION COMMISSION ........5TH RESPONDENT
THE CONTROLLER OF BUDGET......................................6TH RESPONDENT
PETITION NO. 282 OF 2013
COSMUS NGENO KOECH.................................................1ST PETITIONER
DANIEL CHEGE KAMAU ..................................................2ND PETITIONER
UZALENDO INSTITUTE FOR
LEADERSHIP AND DEMOCRACY......................................3RD PETITIONER
THE ATTORNEY GENERAL..............................................1ST RESPONDENT
THE PARLIAMENTARY SERVICE COMMISSION.............2ND RESPONDENT
THE CLERK OF THE NATIONAL ASSEMBLY ...................3RD RESPONDENT
THE CLERK TO THE SENATE ..........................................4TH RESPONDENT
Petition No. 227 of 2013
(i) Whether MPs have the power and/or legal capacity to determine their salaries, allowances and other benefits.
(ii) Whether under the Constitution of Kenya, the 3rd Respondent violated any law or any principles when setting the salaries and remuneration of the Members of the 11th Parliament.
(iii) Whether the salaries, allowances and other benefits of Members of the 11th Parliament which were gazetted by the 3rd respondent are constitutional and valid.
(iv) Whether the Government can legitimately make grants of whatever nature to Members of the 11th Parliament.
(v) Whether by issuing threats to the 3rd Respondent, Members of the 11th Parliament are interfering with the autonomy of the Independent Commission.
(vi) Whether by dint of Article 40(6) [of the Constitution] the Members of the 11th Parliament have a right to keep any unlawful payments they received or may receive as a result of manipulating and blackmailing the 3rd Respondent.
(vii) Whether the National Assembly Remuneration Act (Chapter 5 of the Laws of Kenya) and the Parliamentary Pensions Act (Chapter 196 of the Laws of Kenya) were repealed at the expiry of the term of the 10th Parliament or they are still in force under the new Constitution.
(viii) Whether the promulgation of the Constitution of Kenya, 2010, effectively annulled both the reports of the Cockar and Akiwumi tribunals (commissions) appointed under the former Constitution by the Parliamentary Service Commission to review the terms and conditions of service for members of the National Assembly.
(ix) Whether Parliament can revoke legal notices gazetted in the Kenya Gazette.
(x) Whether Parliament can legislate to directly set and determine any public official’s salary, allowances and benefits.
(xi) Whether Parliament can use it’s budget allocation powers to usurp the SRC’s powers to directly determine the salaries and remuneration of State officers.
Petition No. 281 of 2013
Petition No. 282 of 2013
“CERTIFICATE – NULLIFICATION OF GAZETTE NOTICES NO. 2885, 2886, 2887 AND 2888 BY SALARIES AND REMUNERATION COMMISSION
I, JUSTIN NTHIIRI BUNDI, Clerk of the National Assembly, do hereby certify that the Assembly, in exercise of its oversight role under Article 95(a) and (b) of the Constitution, did on Tuesday, 28th May, 2012, resolve that:-
The 1st Petitioner’s Case
The 2nd Petitioner’s Case
“23 THAT the Hon. the Speaker of the house has failed, refused and/or neglected to perform his constitutional responsibility of giving constitutional guidance to the house in that:-
The Case for the 3rd, 4th & 5th Petitioners
21. The petitioners contend that the decision of the National Assembly to nullify the Gazette Notices published by the SRC is inconsistent with Article 230 and Chapter Six of the Constitution on Leadership and Integrity; that the decision by members of the National Assembly to debate and pass a motion touching on their remuneration and benefits contravenes the clear provisions of Article 122(3) of the Constitution which states that a Member of Parliament shall not vote on any question in which the member has a pecuniary interest; that Article 75 of the Constitution provides that a State officer should behave in a manner that avoids any conflict between personal interests and public or official duties; compromises any public or official interest in favour of personal interest; or demeans the office the officer holds.
The 1st Respondent’s Case
The 2nd and 4th Respondents’ Case
“No proceedings or decision of the Assembly or the Committee of Privileges acting in accordance with this Act shall be questioned in any court.”
The 3rd Respondent’s Case
Issues for Determination
Analysis and Determination:
“Jurisdiction is everything. Without it, a Court has no power to make one more step. Where a court has no jurisdiction there would be no basis for a continuation of proceedings pending other evidence. A Court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction”.
“As we have already stated earlier in this judgment, Parliament in enacting the legislation under review clearly had in mind considerations other than those spelt out in the Constitution and the Hansard Reports on their debates on the same are clear testimony to the fact. The question that then falls to be determined is whether, in the face of such constitutional failures on the part of Parliament, the Courts should adopt a passive and aloof attitude. We think not. We do not deign to intrude into, less still take over the legislative function of Parliament. Our role is as was expressed by the High Court in the case of FEDERATION OF WOMEN LAWYERS KENYA (FIDA K) & 5 OTHERS Vs. ATTORNEY GENERAL & ANOR PETITION NO. 102 OF 2011,  eKLR;
“In actual fact it is the court’s sole mandate to provide checks and balances for the executive and the court will not hesitate to interfere when called upon to interpret the Constitution and supervise the exercise of constitutional mandate. We find that to do otherwise would be dereliction of our constitutional mandate.”
In delivering itself as aforesaid, the Court in FIDA-K was not propounding a strange species of jurisprudence, for courts of law have for ages been the interpreters of what is constitutionally valid and what is not. The constitutional interpretation jurisdiction that resides in the High Court, and which we must exercise when sitting on appeals from its determinations, is a critical and vital one. This is especially so when it comes to testing the constitutionality of legislative actions that touch on the special safeguards and protections that have progressively been adopted to protect persons and groups that are vulnerable or disadvantaged. In such instances, it is for the court to robustly and firmly affirm those protections that from their very nature may seem a counter-majoritarian irritation to those that have the weight or the numbers on their side.”
“Speaking on this counter-majoritarian theme, Justice Chalkalson, the President of the South African Constitutional Court in THE STATE Vs. T. MAKWANYANE & ANOR 1995 (3) S.A. 391 (C.C) succinctly expressed the court’s interpretational autonomy which often emerges as a counterweight to majoritarian or popular instincts;
“Public opinion may have some relevance to the enquiry, but in itself it is no substitute for the duty vested in the courts to interpret the Constitution and to uphold its provisions without fear or favour. If public opinion were to be the decision there would be no need for constitutional adjudication. The protection of rights could then be left to Parliament, which has a mandate from the public and is answerable to the public for the way its mandate is exercised, but this would be a return to parliamentary sovereignty and a retreat from the new legal order established by the 1993 Constitution.” (Emphasis ours)
What the 1993 constitution did for South Africa is what the 2010 Constitution did for Kenya, namely the uprooting of any enclaves and edifices of institutional or personal supremacy and the attendant absence or at best weak and ineffectual accountability mechanisms. Indeed, even before the Constitution came into force, Ringera J. (as he then was) had in NJOYA & 6 OTHERS Vs. ATTORNEY GENERAL & 3 OTHERS (No. 3) 2KLR (E.P) 658 at 674, while discussing constitutional values and principles that undergird the Constitution, stated as follows;
“I would rank constitutionalism as the most important. The concept of constitutionalism betokens limited Government under the Rule of law. Every organ of Government has limited powers, none is inferior or superior to the other, none is supreme, the Constitution is supreme and they all bow to it.” (Emphasis ours)
“We respectfully endorse the sentiments of Ringera J. and state that it cannot be open to any organ of state to act in any manner that violates the Constitution. The doctrine of parliamentary supremacy that once gave parliament near-unbridled right to legislate as it pleased is now of only historical significance in an epoch when the Constitution and the Constitution alone lays claim to supremacy and every act of every organ must be judged against its peremptory requirements. That task of judging whether an action passes constitutional muster is placed upon the superior courts.”
53. The position enunciated so succinctly by the Court of Appeal is a position we wish to associate ourselves with. The Constitution disperses powers among various constitutional organs and when any of these organs steps out of its area of operation, this court will not hesitate to state so. It is this Court which is, by virtue of Article 165(d), clothed with jurisdiction to hear any question concerning the interpretation of the Constitution including the determination of:
“(i) the question whether any law is inconsistent with or in contravention of this Constitution;
(ii) the question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, this Constitution;”
54. This is the mandate we will bear in mind as we seek to find answers to the issues raised in this petition. In passing the Constitution, Kenyans gave the responsibility of making laws to Parliament. The decision of the people must be respected, so that this Court can only interfere with the work of Parliament in situations where Parliament acts in a manner that defies logic and violates the Constitution. To agree with the National Assembly that this Court cannot interrogate its work will amount to saying that the National Assembly can fly beyond the reach of the radar of the Constitution. That is a proposition we do not agree with. Our view is that all organs created by the Constitution must live by the edict of the Constitution. Indeed, Parliament is commanded by Article 94(4) of the Constitution to protect the Constitution and promote democratic governance in the Republic of Kenya.
55. Where then does our finding leave the issue of parliamentary privilege as provided by Article 117(1) of the Constitution and elaborated upon in statute by Section 12 of the National Assembly (Privileges and Immunities) Act? Article 94 of the Constitution stipulates the role of Parliament whereas Article 95 provides the role of the National Assembly. The role of the Senate is found in Article 96. A perusal of the Constitution in its entirety clearly shows that Parliament has a major role in running the affairs of this country. In order for Parliament to operate effectively, there is need to ensure that there is free debate on the floors of the two houses. That is where the immunity of parliamentary debate comes in.
56. Our view is that Members of Parliament can debate anything under the sun. The freedom of speech in this respect is unlimited except by the Standing Orders which are made by Parliament. We are therefore persuaded by the decision in the Canadian case of Canada (House of Commons) v. Vaid  1S.C.R. where at paragraph 42 the importance of parliamentary privilege as stated in the British Joint Commission Report is captured in the following words:-
“Parliamentary privilege consists of the rights and immunities which the two Houses of Parliament and their members and officers possess to enable them to carry out their parliamentary functions effectively. Without this protection members would be handicapped in performing their parliamentary duties, and the authority of Parliament itself in confronting the executive and as a forum for expressing the anxieties of citizens would be correspondingly diminished.”
57. In our view, Members of Parliament should not look over their shoulders when conducting debates in Parliament. They must express their opinions without any fear. The Court should be hesitant to interfere, except in very clear circumstances, in matters that are before the two Houses of Parliament and even those before the county assemblies. It is, however, the mandate of this Court to check the constitutionality of the resolutions and statutes made by the legislature. In the case before us, a resolution has been made and we have a duty to interrogate the constitutionality of that resolution.
58. In holding as above, we are in agreement with the decision of this Court in Petition No.496 of 2013, Commission for the Implementation of the Constitution -v- The National Assembly of Kenya & 2 Others (supra) where the Court stated that while the High Court has powers to overturn certain resolutions of Parliament, it must restrain itself in “not trespassing onto that part of the legislative field which has been reserved by the Constitution, and for good reasons, to the legislature”. (See also National Coalition for Gay and Lesbian Equality & Others 13 Others, Case CCT. No.10/99).”
59. We therefore find and hold that we have jurisdiction to entertain the petitions before us.
Whether the Petitions are Moot
60. Related to the issue of jurisdiction is the question whether the petitions before us are now moot. The 2nd and 4th respondents informed the Court that following the nullification of the Gazette Notices by the National Assembly, the SRC had proceeded to review and set the remuneration of Members of Parliament in a manner that is lawful and constitutional, and the question of the unconstitutionality of the Gazette Notices is no longer an issue and the petitions before us have therefore been overtaken by events.
61. None of the petitioners disputed this fact. On the contrary, counsel for the 2nd petitioner submitted that the fact that the 2nd and 4th respondents had gone back to the negotiating table with the SRC was an admission that the National Assembly had acted unconstitutionally by nullifying the Gazette Notices.
62. It is not in dispute that a Court of law should only engage itself in actual disputes between the parties before it. Judicial authority should not be directed at matters that are academic in nature. The question is whether the matter before us has been overtaken by events. We take the view that addressing the questions raised by the petitioners is not tantamount to flogging a dead horse as there are still live and important issues that the petitions before us raise that must be addressed by this Court
63. We take this view for the following reasons. The National Assembly debated the issue of remuneration and benefits for state officers and concluded that the SRC had acted illegally in gazetting the said remunerations and benefits. The resolution and the subsequent certificate of nullification, whatever its value, remain in force to date. Even after the National Assembly entered into negotiations with the SRC, no debate was initiated in the House on the resolution and certificate of nullification. The proceedings in respect of the said resolution and certificate of nullification are captured in the Hansard and are forever part of the history of our nation. The question whether the National Assembly had the constitutional authority to nullify the Gazette Notices still remains unaddressed.
64. To leave the question raised by the petitioners with regard to whether or not Parliament exceeded its mandate in passing the said resolution and issuing the subsequent certificate unanswered would be to leave a critical question at this time in our constitutional history unaddressed, and to leave uncertainty with regard to the constitutional mandate of the SRC, an important constitutional commission, vis a vis the oversight role of Parliament. We are therefore unable to agree with the 2nd and 4th respondents that the issues raised in the petitions before us are moot, and that the petitions have been overtaken by events.
65. Before proceeding to address ourselves to the last two of the four main issues raised by this petition, we deem it appropriate to dispense at this stage with the subsidiary issues that we set out earlier.
Whether the Threat to Remove the SRC Commissioners by Parliament is Unconstitutional
66. The petitioners have asked us to make a finding that the threat by the National Assembly to form a tribunal with a view to removing the SRC commissioners from office is unconstitutional. Article 251 of the Constitution has provided for the removal of a member of a constitutional commission as follows:-
“251. (1) A member of a commission (other than an ex officio member), or the holder of an independent office, may be removed from office only for—
(a) serious violation of this Constitution or any other law, including a contravention of Chapter Six;
(b) gross misconduct, whether in the performance of the member’s or office holder’s functions or otherwise;
(c) physical or mental incapacity to perform the functions of office;
(d) incompetence; or
(2) A person desiring the removal of a member of a commission or of a holder of an independent office on any ground specified in clause (1) may present a petition to the National Assembly setting out the alleged facts constituting that ground.
(3) The National Assembly shall consider the petition and, if it is satisfied that it discloses a ground under clause (1), shall send the petition to the President.
(4) On receiving a petition under clause (3), the President—
(a) may suspend the member or office holder pending the outcome of the complaint; and
(b) shall appoint a tribunal in accordance with clause (5).
(5) The tribunal shall consist of—
(a) a person who holds or has held office as a judge of a superior court, who shall be the chairperson;
(b) at least two persons who are qualified to be appointed as High Court judges; and
(c) one other member who is qualified to assess the facts in respect of the particular ground for removal.
(6) The tribunal shall investigate the matter expeditiously, report on the facts and make a binding recommendation to the President, who shall act in accordance with the recommendation within thirty days.
(7) A person suspended under this Article is entitled to continue to receive one-half of the remuneration and benefits of the office while suspended.”
67. In exercising its powers under Article 251, Parliament must always be alive to the objects and authority of commissions and independent offices provided by Article 249 as follows:-
“249. (1) The objects of the commissions and the independent offices are to—
(a) protect the sovereignty of the people;
(b) secure the observance by all State organs of democratic values and principles; and
(c) promote constitutionalism.
(2) The commissions and the holders of independent offices—
(a) are subject only to this Constitution and the law; and
(b) are independent and not subject to direction or control by any person or authority.
68. Article 251 of the Constitution sets out the grounds under which a member of a constitutional commission may be removed, and empowers the National Assembly to receive petitions for removal, and if satisfied that the petition discloses a ground set out in Article 251(1), send the petition to the President.
69. Should Parliament move to recommend formation of a tribunal for a member of a commission or any holder of an independent office for reasons other than those found in the Constitution, then such a decision can be challenged in court. Courts, in our view, should be reluctant to intervene considering that the tribunal appointed by the President will among other things consider whether the reasons for the proposed removal meets the constitutional threshold. In the case before us, the National Assembly did not resolve to remove the Commissioners of SRC. We therefore have no reason to venture into the question of their removal since it has not arisen.
Whether the SRC Violated the Constitution in Setting the Salaries of Members of Parliament
70. There was extensive submission by the 2nd and 4th respondents to the effect that the SRC violated the Constitution and breached statutory provisions in arriving at the remuneration and benefits of State officers. The petitioners and the SRC also dwelt at length on the reasons why they believe the SRC acted legally and constitutionally. Our response to these opposing arguments is that it is not the mandate of this Court to enter into the merits of the decision made by the SRC, for to do so is to interfere with the constitutional mandate of the SRC. Unless there is placed before the Court clear evidence of violation of the Constitution or of statute, or of such unreasonableness in its decision making as would justify interference by this Court, it is not the duty of the Court to inquire into the methods or modalities used by the SRC to arrive at its decision in setting the remuneration of Members of the National Assembly.
Whether the Acts of the National Assembly Amounted to Gross Misconduct
71. Another issue put forward by the petitioners for our consideration is whether the actions of the members of the National Assembly can be said to amount to gross misconduct therefore necessitating their removal. We do not wish to dwell much on this issue save to observe that there are clear processes for removing a member of the National Assembly who violates the Constitution. Further, the individual Member of Parliament sought to be removed for alleged misconduct must be given a hearing.
72. None of the Members of the National Assembly has been made a party to these proceedings, so that for the Court to make any determination with regard to their conduct would be to do so without according them a hearing. It must also be borne in mind that there is parliamentary privilege which covers debates and deliberations within the precincts of Parliament. Taking all factors into consideration, we find that this particular prayer by the petitioners cannot be allowed.
73. We now turn to a consideration and determination of the two main issues remaining.
Which body is Mandated by the Constitution to Determine the Remuneration and Benefits of Members of Parliament?
74. The core of the dispute before us is the resolution by the National Assembly to nullify the Gazette Notices issued by SRC, and the issuance of a certificate of nullification subsequent to the said resolution. The critical question for determination is therefore whether the National Assembly exceeded its mandate in quashing the Gazette Notices issued by the SRC. This question is intertwined with the third issue identified for determination in this matter, which relates to the body in which the Constitution vests the mandate to determine the remuneration and benefits of Members of Parliament.
75. Article 230 (4) of the Constitution provides that the powers and functions of the SRC shall be to –
“(a) set and regularly review the remuneration and benefits of all State officers; and
76. At Article 230(5), the Constitution provides that:-
“(5) In performing its functions, the Commission shall take the following principles into account—
(a) the need to ensure that the total public compensation bill is fiscally sustainable;
(b) the need to ensure that the public services are able to attract and retain the skills required to execute their functions;
(c) the need to recognise productivity and performance; and
(d) transparency and fairness.”
77. Parliament further expounded on the powers and duties vested in the SRC when it passed the Salaries and Remuneration Commission Act, 2011 and provided at Section 11 as follows:-
“11. In addition to the powers and functions of the Commission under Article 230 (4), the Commission shall -
(a) inquire into and advise on the salaries and remuneration to be paid out of public funds;
(b) keep under review all matters relating to the salaries and remuneration of public officers;
(c) advise the national and county governments on the harmonization, equity and fairness of remuneration for the attraction and retention of requisite skills in the public sector;
(d) conduct comparative surveys on the labour markets and trends in remuneration to determine the monetary worth of the jobs of public offices;
(e) determine the cycle of salaries and remuneration review upon which Parliament may allocate adequate funds for implementation;
(f) make recommendations on matters relating to the salary and remuneration of a particular State or public officer;
(g) make recommendations on the review of pensions payable to holders of public offices; and
(h) perform such other functions as may be provided for by the Constitution or any other written law.”
78. The mandate of SRC is therefore clear. Its reach extends to all state officers, who are defined by Article 260 as persons ‘holding a state office.’ A ‘state office’ is defined as meaning, among others, the following offices:;
(b) Deputy President;
(c) Cabinet Secretary;
(d) Member of Parliament;
(e) Judges and Magistrates;
(f) member of a commission to which Chapter Fifteen applies;”
79. We are aware that the National Assembly is in the process of an attempt at amending the above provisions and the issue was the subject of Petition No.496/2013 Commission for the Implementation of the Constitution -v- The National Assembly of Kenya & 2 Others (supra) where certain orders were made by this Court.
80. In our view, however, the SRC was doing its job, exercising its constitutional mandate and function with regard to the remuneration of State Officers, when it issued the Special Issue of the Kenya Gazette on 1st March, 2013. In moving to quash the Gazette Notice containing the remuneration and benefits of its members, the National Assembly stepped into the arena reserved for the SRC by the Constitution.
81. It is essential to emphasize that all organs created by the Constitution are of equal importance. They complement and defer to each other. Where one organ is of the view that another organ has overstepped its mandate, the aggrieved body should seek a solution as provided by the Constitution. Parliament cannot and must not be allowed to run roughshod over other constitutional organs. Allowing Parliament to do as it pleases will sooner rather than later lead to a breakdown of law and order.
82. Parliamentarians are expected to operate within the letter and the spirit of the Constitution. Parliament, like all other state organs, is not above the law. Members of the National Assembly, like all other state officers, and the National Assembly, like all other state organs are compelled by the Constitution to adhere to the national values and principles of governance found in Article 10 of the Constitution. We therefore agree with the petitioners that the resolution by the National Assembly to nullify the Gazette Notices published by the SRC was unconstitutional.
83. In closing on the issue of the Gazette Notices published by the SRC whose nullification we have found to be unconstitutional, it is, we believe, important to make some remarks about the place of the Kenya Gazette. Counsel for the 2nd Petitioner at one point submitted that the Kenya Gazette has been given unnecessary deference, and that the decision of the SRC remains in force despite the alleged nullification of the same by the National Assembly. We agree with regard to the latter point, but we do find the first argument with regard to the deference paid to the Kenya Gazette somewhat paradoxical. If indeed the Gazette is of no value then why did the 2nd Petitioner come to Court following the nullification of the notices published in the Gazette by the SRC? The answer should be fairly obvious.
84. The Kenya Gazette is the official bulletin of the Government of Kenya. It announces to all and sundry the decisions of the Government. The only formal way the SRC could have conveyed its decision on the remuneration and benefits of state officers was through the Kenya Gazette.
85. The position and place of the Kenya Gazette in the affairs of this nation was addressed by the Court of Appeal in the case of Ali Hassan Joho & Another v. Suleiman Said Shahbal & 2 Others Court of Appeal Civil Appeal No 12 of 2013 thus:-
[24.] The Kenya Gazette is an official newspaper of the government in which official matters including official notices are published. The Gazette has evidentiary character. Section 68 of the interpretation and General Provisions Act provides:-
“The production of a copy of the Gazette containing a written law or notice, or of copy of a written law or notice purporting to be printed by the Government Printer shall be prima facie evidence in all courts and for all purposes whatsoever of the due making and tenor of the written law or notice.”
Section 85 of the Evidence Act has identical provision……….
The elections are matters of great public importance and the requirement that the result of elections be declared or published in the Gazette does not derogate from the intendment of section 76(1)(a). The requirement of Gazettement is required, among other things, to give the declared results a seal of certainty finality, and legality.”
86. We are in agreement with regard to the place of the Kenya Gazette as the medium through which official notification and communication is made to all and sundry.
Whether Certain Acts of Parliament Pertaining to the Remuneration and Benefits of Members of the National Assembly are Unconstitutional
87. The final issue for determination in this matter pertains to the constitutionality or otherwise of certain Acts of Parliament, some of which predate the Constitution of Kenya 2010, and which made provision for the remuneration and benefits of Members of Parliament. The petitioners urged this Court to find and declare as unconstitutional and unlawful any of the provisions of the National Assembly Remuneration Act, the Parliamentary Pensions Act, the Appropriations Act, the Supplementary Appropriations Act 2013 and the Statutory Instruments Act 2013 in so far as they conflict and/or are inconsistent with the provisions of the Constitution.
88. We can state at the outset in relation to the case before us that we have not found anything unconstitutional in the Appropriations Act, the Supplementary Appropriations Act, 2013 and the Statutory Instruments Act, 2013. An Appropriations Act simply provides for the expenditure of public funds. Public funds can only be expended in the manner provided by the law and the fact that funds have been set aside does not mean that the same can be utilized in an unlawful manner.
89. With regard to the Parliamentary Pensions Act, we take the view that pensions are protected by the Constitution. Section 32 of the Sixth Schedule of the Constitution states that:-
“The law applicable to pensions in respect of holders of constitutional offices under the former Constitution shall be either the law that was in force at the date on which those benefits were granted or any law in force at a later date that is not less favourable to the person.”
90. Given these clear constitutional provisions therefore, it would be erroneous for us to find that an Act of Parliament namely the Parliamentary Pensions Act which provides for pension for former Members of Parliament is unconstitutional.
91. That leaves us with the National Assembly Remuneration Act. The preamble of this Act states that it is:-
“An Act of Parliament to fix the salaries and allowances for the Speaker, the Deputy Speaker and Members of the National Assembly, and for the Vice-President and other Ministers, and for Assistant Ministers; and for purposes incidental thereto and connected therewith.”
92. As already stated, the remuneration and benefits of the members of the 11th Parliament and any other Parliament coming into existence thereafter can only be determined by the SRC. The National Assembly Remuneration Act Cap 5 is therefore unconstitutional and no longer serves any purpose in the statute books of this country. We therefore agree with the petitioners and find and hold that the said Act of Parliament is unconstitutional.
93. Having found that the National Assembly had no mandate to make resolutions nullifying the Gazette Notices issued by the SRC, and in light of our other findings in relation to the issues for determination in this matter, we make orders and issue declarations as follows:-
94. With regard to costs, we find that the consolidated petitions before us were brought in support of the implementation of the Constitution and for this reason we make no orders as to costs.
95. We are indebted to Counsel appearing for the parties in the matter for their well-researched arguments and authorities in support of their respective positions.
Signed and Dated at Nairobi this 31st day of January 2014.
ISAAC LENAOLA MUMBI NGUGI W.K. KORIR
JUDGE JUDGE JUDGE
Signed, Dated and delivered at Nairobi this 5th day of February2 014