Major blow to members of Parliament as the High Court rules that House allowances paid them are illegal.
The High Court ruling by a bench of three judges has directed Senate and National Assembly clerks to recover the millions already paid out to each lawmaker within one year.
The judges further faulted the Parliamentary Service Commission (PSC) for encroaching on the mandate of the Salaries and Remuneration Commission (SRC) by granting the MPs house allowance of Sh250,000 and backdating it to 2018. The move saw each MP get Sh2.25 million.
Activist Okiya Omtatah and a host of NGOs challenged the allowance in court, saying it was done by PSC without the approval of the SRC.
“It is our finding that by exercising a function not vested upon them by the Constitution, the PSC consequently violated the various constitutional provisions identified above,” Justices Pauline Nyamweya, Weldon Korir and John Mativo said.
The judges said the Constitution and statutes do not give the PSC any specific function to set salaries and allowances of MPs and parliamentary staff. They said the only financial functions allocated to the PSC by the Constitution are budgetary.
“Hence, PSC’s decision is found to be ultra vires its constitutional mandate and to offend the principle of legality which requires that decisions by public bodies must have their source in law,” they ruled.
The court said SRC acted within its mandate by directing the Clerks of Parliament not to pay the said allowance. They said the failure by PSC to seek and obtain the approval of the SRC, which is the only body constitutionally mandated to set and pay salaries and remuneration of state officers, was illegal.
“The accounting officers for the PSC and Parliament are therefore also culpable for failing to undertake their obligations under the Public Finance Management Act in this regard. For this reason, we therefore find that the said accounting officers are under obligation to recover the money paid to MPs.”
Mr Omtatah said the payments will cost taxpayers over Sh1.2 billion annually.
The activist further argued that the allowance gave MPs double benefit as house allowance is already included by SRC in legislators’ gross pay.