“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.” – Judgment in Petition No. 227 of 2013 at paragraph 82.
The above judgment by a three-judge bench sitting at the High Court at Nairobi is significant for two distinct yet connected reasons: firstly, it is a big win for the doctrine of constitutional supremacy against the doctrine of parliamentary sovereignty and secondly, it restores much-needed public trust in the ability of the Judiciary to dispense justice. A copy of this landmark judgment is available here.
In the recent past, there have been several spirited public campaigns against members of parliament (MPs) whom many registered voters feel have gone rogue by putting their narrow private interests above those of the electorate that put them in public office. The climax of this perceived parliamentary impunity came in May 2013 when the National Assembly (NA) wrote to the Salaries and Remunerations Commission (SRC) purporting to nullify the remuneration of various categories of state officers which the SRC had published in the Kenya Gazette.
Despite this move by the NA, the SRC stood firm by its gazetted remunerations led by its chair, Sarah Serem. It is recalled that he Serem-led team recommended that the salaries for MPs be set at KES 532,000 (including benefits) whereas members of the previous Parliament took home KES 851,000. Meanwhile, in a bid to intimidate and threaten the SRC, the NA tabled and debated a motion in Parliament to remove Serem and the other SRC Commissioners from office.
Luckily, several public spirited tax-paying human rights defenders including Okiya Omtatah and the Law Society of Kenya (LSK) moved to court to challenge the constitutionality of the NA’s decision to nullify the SRC’s gazetted remunerations for MPs. The court therefore had two important questions to answer: firstly, which body is mandated by the Constitution to determine the remuneration and benefits for MPs and secondly whether the National Assembly Remuneration Act and the Parliamentary Pensions Act were unconstitutional in so far they relate to the remuneration and/or benefits for MPs. In addition, the petitioners also invited the court to consider whether the NA’s motion to remove the SRC commissioners was in line with the Constitution, arguing that it amounted to gross misconduct and constituted grounds for dismissal from Parliament.
Mr Speaker, Sir!
In the submissions phase of the case, one notable highlight was the LSK’s tongue-lashing of NA Speaker, Justin Muturi. Indeed, the LSK is a very unique and powerful professional association and perhaps the only body that has members serving in all three branches of government: Judiciary, Legislature and Executive. Therefore it was interesting to see the LSK exercising its moral authority over NA Speaker, Justin Muturi, who happens to be a member of LSK. At paragraph 22, the court cites the argument in LSK’s petition which states as follows:
“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 he has wrongfully assumed the role of a trade unionist by leading the agitation for increased salaries and the defiance of the Constitution and the law by Members of the National Assembly.”
LSK’s reprimand of Muturi’s conduct is in light of the Speaker’s replying affidavit where he claimed that the SRC job evaluation was flawed even though it transpires that SRC had contracted leading audit firm Price Water House Coopers to carry out the job evaluation. Not to mention that it was not disputed by the NA that the job evaluation was scientifically determined and compared favourably with the salaries and benefits of MPs in other jurisdictions.
Checks and Balances: The Role of Judicial Supervision
The argument of parliamentary privilege arose in two instances, firstly in determining whether the court’s jurisdiction to hear the case and also in determining whether the NA’s motion to remove the SRC commissioners amounted to gross misconduct. In the first instance, the court concurred with the NA that MPs are at liberty to debate anything under the sun and should not “look over their shoulders when conducting debates in Parliament and must express their opinions without any fear.” However the court makes it clear that it has the mandate to “check the constitutionality of the resolutions and statutes made by the legislature.” Therefore in the present case of MPs resolving to nullify the SRC’s gazetted remuneration, the court found that it has a duty to interrogate the constitutionality of that resolution.
On the question whether the MPs move to remove the SRC commissioners amounted to gross misconduct, the court exercises restraint and points out that there are clear processes for removing a member of the NA who violates the Constitution and that the individual MP sought to be removed for alleged misconduct must be given a hearing. In addition, the court points out that there is parliamentary privilege which covers debates and deliberations within the precincts of Parliament.
This case also demonstrates the judiciary’s deference to other independent state organs with constitutionally ordained roles. In the case of the SRC’s gazettement of MPs salaries, the court held that it is not the judges’ mandate to inquire into the methods or modalities used by the SRC to arrive at its decision in setting the remuneration of Members of the NA, unless there is clear evidence of violation of the Constitution or of statute, or of such unreasonableness in its decision making as would justify interference by the courts.
Supremacy of the Constitution
Finally, the issue of constitutional supremacy arose in the court’s ruling on the constitutionality of several pieces of legislation enacted by the NA to determine their salaries and benefits, namely the National Assembly Remuneration Act, the Parliamentary Pensions Act, the Appropriations Act, the Supplementary Appropriations Act 2013 and the Statutory Instruments Act 2013. It is recalled that Article 2 of the Constitution states that the Constitution is the supreme law of the Republic and any law that is inconsistent with the Constitution is void to the extent of the inconsistency, and any act in contravention of the Constitution is invalid.
Therefore, in the present case, the court held that the National Assembly Remuneration Act violates the provisions of Article 230 (which establishes the SRC) and Article 260 (which defines “state officer” to include a member of parliament). In the finding of the court, the learned judges state:
“…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.”
In conclusion, The Constitution = 1; The National Assembly = 0. The moral of the story, is that no one is above the Constitution. The Constitution binds all arms of government and contains a mechanism for deciding whether its Articles have been complied with. That mechanism chosen in the Constitution is the courts. Therefore it is the duty of the court to set aside any law or conduct if that law or conduct is found to be inconsistent with the Constitution. However, if the NA is strongly of the opinion that the High Court erred in its interpretation of the Constitution, the doors of the Court of Appeal remain open.